[Congressional Record Volume 141, Number 19 (Tuesday, January 31, 1995)]
[Senate]
[Pages S1848-S1860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. DOMENICI (for himself and Mr. Wellstone):
S. 298. A bill to establish a comprehensive policy with respect to
the provision of health care coverage and services to individuals with
severe mental illnesses, and for other purposes; to the Committee on
Labor and Human Resources.
THE EQUITABLE HEALTH CARE FOR SEVERE MENTAL ILLNESS ACT OF 1995
Mr. DOMENICI. Mr. President, today I rise to introduce a bill I have
introduced in the past, and which has always attracted the support and
encouragement of a wide variety of my distinguished colleagues. This
bill is called the Equitable Health Care for Severe Mental Illness Act
of 1995. It was written because a situation exists in this country that
I believe cannot continue, and this situation impacts upon some of the
most vulnerable individuals in society. I am speaking of the those
individuals who have been diagnosed as having a severe mental illness.
For so long, society shunned these individuals out of fear,
ignorance, or misunderstanding, and the afflicted and their families
suffered in silence. Because society didn't know what caused these
illnesses, they could only assume that the strange and perplexing
behavior was the result of some action; a punishment for some sin; or a
weakness or frailty in character. In the past, those suffering from
mental illness were locked up, tried as witches, or banished from
society for being possessed by demons or evil spirits. As late as 1972
in this country, many States singled out the mentally ill,
institutionalized them, and subjected them to systematic sterilization,
often without their consent or knowledge. Ignorance of these illnesses
bred contempt, and the sick were seen as criminals. Some just say,
``why don't they just stop acting that way?''
Thankfully, today we know better. With our increasing understanding
of the human body and the composition of the brain, we have come to
learn a truth far different from the superstitions of the past. We have
learned that there are physiological, chemical, and biological reasons
for this behavior, and that these circumstances are far beyond an
individual's control. We have also learned that these illnesses are
treatable, and that with the right combinations of medicinal and
behavioral therapy, these people can be helped, and can frequently lead
a life as normal as yours or mine.
But mental illness continues to exact a heavy toll on many, many
lives. Even though we know so much more about mental illness, it can
still bring devastating consequences to those it touches; their
families, their friends, and their loved ones bear this as well. These
individuals and families not only deal with the societal prejudices and
suspicions hanging on from the past, but they must also contend with a
structural, systematic discrimination that most often bars them from
getting the care they need and deserve. The advancement in our
knowledge of these illnesses has not been accompanied by a change in
the policies of most health care insurers. Consider the following facts
for a moment:
mental illness--a widespread disease
One person out of every five--more than 40 million adults--in this
Nation will be afflicted by some type of mental illness.
Schizophrenia alone is 50 times more common than cystic fibrosis, 60
times more common than muscular dystrophy and will strike between 2 and
3 million Americans.
Among children and adolescents, nearly 7.5 million, or 12 percent,
suffer from one or more mental disorders.
discrimination in health insurance
Only 2 percent of Americans with private health care coverage have
policies that adequately and fairly cover severe mental illnesses.
Health care reform plans designed to make health care more accessible
and affordable would continue the discrimination prevalent in private
health insurance today. Many plans: allow 365 days for inpatient
physical care but only 45 days of inpatient psychiatric care; provide
unlimited coverage of office visits for physical care but only 20
visits for psychiatric care; and provide up to $1 million in lifetime
coverage for physical care but only $50,000 lifetime coverage for
mental health care. These are discriminations that we cannot let
continue, especially if we reform the health care programs, and more
particularly if we reform the insurance programs of our Nation.
Furthermore, we find that only 10 percent of all insurance policies
have coverage for partial hospitalization, despite proven success in
producing good outcomes while controlling costs with persons with
mental illness, and 60 percent of health maintenance organizations and
preferred provider organizations completely exclude coverage of some
treatments for severe mental illness.
Some will immediately say we cannot afford it or that inclusion of
this treatment will cost too much. But let us take a look at the
efficacy of treatment for these individuals, especially when compared
with the success rates of treatments for other physical ailments. For a
long time, many who are in this field--especially on the insurance
side--have behaved as if you get far better results for angioplasty
than you do for treatments for bipolar illness.
Let me give you some facts as to efficacy of treatment in the United
States today. Treatment for bipolar disorders--that is, those disorders
characterized by extreme lows and extreme highs--has an 80 percent
success rate if you get treatment, both medicine and care.
Schizophrenia, the most dread of mental illnesses, has a 60-percent
success rate in the United States today if treated properly. Major
depression has a 65 percent success rate.
Let me remind everybody that when we speak of schizophrenia or manic
depression, frequently we think these are the dredges of society. I
would like to remind everyone that some of the greatest men and women
in all of history were manic depressives. Let me give you a few:
Winston Churchill. Unquestionably, he would be diagnosed today as manic
depressive because he had those extreme highs, when he said he never
slept and he sat around and wrote history books, and all of a sudden
the black hole, 3, 4 months in a state of depression. He was able to
cope with it. Most human beings with that kind of illness cannot quite
cope with it. They are not dredges or imbeciles, they are not the low
intellectual people. In fact, quite to the contrary.
Compare this with commonly reimbursed treatments for cardiovascular
diseases. Let us talk about that for a minute.
Angioplasty has a 41-percent success rate. Treatment for
schizophrenia, the dread disease, has a 60-percent success rate. We can
go on with many of the other ones. There is a 52-percent effective rate
for atherectomy, one of the very important kind of treatments that
everybody thinks we ought to be doing.
Furthermore, the National Institutes of Mental Health estimates that
primary preventive care will add $6.5 billion annually to the overall
cost of mental health care. This will be offset by an overall savings
of about $8.7 billion to society. That is a $2.2 billion savings. The
Federal Government alone spends approximately $14 billion each year for
disability payments to these individuals--25 percent of all disability
payments. Clearly, helping these individuals early on with medical
treatment not only makes the distribution of health care services fair,
but also saves the Government and society money over the long term.
So you can see why I feel it is a necessity that we do something to
resolve this situation. Frankly, without some
[[Page S1849]] relief, the mentally ill will continue to be denied the
treatment they need. The problems associated with nontreatment will
continue to escalate and these individuals will continue to operate on
the margins of society.
The Equitable Health Care for Severe Mental Illness bill I am
introducing, along with Senator Wellstone today, seeks a very simple
goal: To provide, in whatever health care reform package is eventually
enacted, that the Congress and the President coverage for treatment of
these individuals that is commensurate with individuals that are
treated and cared for with other diseases. Let me repeat that. Equity
just means you will treat mental illness under insurance policies and
the like just like you are treating a heart condition, a kidney
condition, or whatever physical condition that we have learned to
cover. And we will use the same kind of terms of medical necessity
which governs and bounds the kind of treatment that is forthcoming for
those illnesses.
In 1990, Congress passed and President Bush signed the Americans With
Disabilities Act, recognizing that there are individuals in society
whose physical needs require special protection under the law. We
determined that, because of conditions beyond their control, disabled
Americans, many of them, their access to services and facilities had to
be made available on an unrestricted, nondiscriminatory manner. We
recognize that this constituted an infringement on their civil rights
when treated otherwise. We did the right thing in trying to be helpful.
I believe it is time we should view severe mental illness in this same
light and do the right thing here, as well.
We must take steps to protect these citizens from unfair treatment
and systematic discrimination. As I circulate this bill, which I now
send to the desk, and ask that it be appropriately referred, and as I
circulate it to fellow Senators, I hope they will seriously consider
it. It is one of the severe and serious discriminations in this society
that remains alive. Why do insurance companies not cover it in broader
scope? Because one insurance company eliminated it and they were able
to reduce their premiums. Then another company decided if they want
lower premiums, they must reduce the mental health care coverage, and
on and on it went until now the situation is as I have described.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Institute of Mental Health Report on Mental Illness in
America--Highlights
Number of people suffering from mental illness: 2.8 percent
of the nation's adult population. Approximately 5 million
people.
Cost of equitable coverage for severe mental illness:
Will add only $6.5 billion in new health care costs.
Will be offset by $8.7 billion reduction in health care
costs and costs to society.
Will yield an aggregate $2.2 billion savings for the
nation.
How effective are treatments for severe mental disorders?
Panic Disorder: 80 percent success rate.
Bipolar Disorder: 80 percent success rate.
Major Depression: 65 percent success rate.
Schizophrenia: 60 percent success rate.
Obsessive Compulsive: 60 percent success rate.
How effective are treatments for commonly reimbursed
cardiovascular disorders?
Angioplasty: 41 percent success rate.
Atherectomy: 52 percent success rate.
Costs to federal government? People with severe mental
disorders account for 25 percent (or approximately $14
billion) of all federal disability payments (Social Security
Insurance and Social Security Disability Insurance).
Mr. KENNEDY. Mr. President, I urge all of my colleagues to pay close
attention to the interventions of the Senator from New Mexico. I think
for all of us who care about health care know he has been tireless on
the whole issue of mental health which is affecting families in this
country. All of us are in his debt for all of the good work he does in
this area. He has been and a tireless proponent of the mentally
challenged, and we are grateful for his leadership.
Mr. WELLSTONE. Mr. President, I am pleased to join my colleague,
Senator Domenici, to introduce legislation on an issue that I feel so
strongly about--equitable health care coverage for mental illnesses.
Let me say first that it has been a real honor to work with Senator
Domenici as cochair of the Senate Working Group on Mental Health and I
look forward to building on the tremendous progress we made last year.
For far too long, mental health and substance abuse have been put in
parentheses. We didn't want to talk about it and we didn't want to take
it seriously. The stigma of mental illness and substance abuse has kept
many in need from seeking help, and has prevented policymakers from
providing it.
While we failed to enact comprehensive health care reform during the
last Congress, we did make great strides in terms of increasing
awareness and understanding of the importance of parity, flexibility,
and a full range of comprehensive mental health benefits.
As cochair of the Senate Working Group on Mental Health I am proud of
the work we did last year. But we must act this year on the issues that
we were so successful at bringing to the forefront of the debate and at
reaching bipartisan agreement on.
We have a tremendous body of new evidence proving that without a
doubt mental health and substance abuse disorders are diagnosable and
treatable in a cost-effective manner. In fact, we can now show that
within a very short period of time it costs less to treat these
disorders directly and appropriately than not to treat them at all. We
can say this is true based on studies of every sector of our
population: Insured and employed, uninsured and unemployed, people who
now use the private system and those who now use the public system.
Mental illness and substance abuse have touched many of our families
and friends. And for this reason and many others this is not a partisan
issue. Americans do not see a distinction between mental and physical
illnesses, and they do not want them treated differently. I am proud to
cosponsor this legislation, which would make it the policy of the
Federal Government to provide coverage for the treatment of severe
mental illnesses that is commensurate with that provided for other
major physical illnesses in any form of health care reform that is
enacted by Congress and the President.
And, most of all, I look forward to continuing to work with Senator
Domenici to end discrimination against this very vulnerable population
and their families. After all, it's only old data and old ideas that
keep us from covering mental health and substance abuse the same way we
cover any other real illness, whether acute or chronic.
______
By Mr. McCONNELL (for himself and Mr. Abraham):
S. 300. A bill to reform the civil justice system, and for other
purposes; to the Committee on the Judiciary.
the lawsuit reform act of 1995
Mr. McCONNELL. Mr. President, our civil justice system is unable to
adequately serve the people who need it. Our legal system, over the
last 30 years, has become inefficient, costly and unpredictable. People
who need a forum to resolve a dispute find less and less satisfaction
in our courts; they face interminable delays, contentious proceedings,
and decisions that too often seem neither fair nor just. We must bring
needed change to the courts before Americans lose confidence in one of
the crucial pillars of our democracy.
Today I am introducing the Lawsuit Reform Act of 1995, designed to
start the process for reforming our litigation system. The bill is
intended to reduce some of the rewards that now exist for bringing a
lawsuit and to introduce some incentives to resolve cases without
resort to litigation.
Let's face it, Americans are sue happy. The United States has become
a litigation prone society, with far reaching consequences: Too many
lawsuits and clogged courts hurt the U.S. in the international
marketplace. And, the threat of lawsuits impedes innovation and
invention.
That our Nation has become a society of people too willing to sue
each other is also a symptom of moral decay. Too often, we try to blame
someone else for our situation, and with a lawsuit, we try get that
someone else to foot the bill. So, we have to get rid of the incentives
for suing, and we have to ensure that those who do
[[Page S1850]] suffer losses get compensated fairly for those losses.
The courts need to be available for those who have real disputes, and
rationality, civility and fairness must be restored to our legal
system.
The bill contains a number of provisions, some of which I have
introduced in previous Congresses. Other provisions represent bold new
directions for our legal system. For example, reform of attorney
contingent fee arrangements--that is, limiting contingent fees to that
portion of an award for which the attorney undertook risk and added
value--will restore the balance to the lawyer-client relationship. It
will remove the enormous financial stake trial lawyers now have in
their clients cases, and it will significantly reduce the $13 to $15
billion paid in contingency fees. Incidentally, this provision has the
endorsement of legal scholars from Judge Robert Bork to Normal Dorsen.
Another provision, early offer and recovery, will put more money in
the hands of injured parties more quickly and effectively. In return
for refraining from a lawsuit, an injured party would get all of his or
her economic losses paid by the responsible parties. This mechanism has
the potential to break the link between the litigation system and the
overuse and abuse of the health care system. If an injured party gets a
commitment to have all of his or her expenses paid, then there is no
incentive to inflate expenses by making unnecessary trips to the
doctor. And the 57 cents of every dollar spent in the litigation system
as transaction costs associated with lawyers will be significantly
decreased. Injured plaintiff will get much more than 43 cents of every
dollar now spent on litigation.
The bill contains a loser-pays provision, restricted only to those
who can afford to assume the risk of having to pay their opponent's
legal fees. And, the bill includes needed limitations on punitive
damages, reforms to the collateral source rule and an end to joint and
several liability.
Mr. President, I am pleased to be joined in this effort by Senator
Abraham. Although he is new to the Senate, he has extensive experience
on this issue. Our bill contains some bold initiatives for reform.
These changes will make a real difference in the legal system.
I am including in the Record a summary of the bill, and I will return
to the floor on a regular basis to highlight the problems with our
legal system and the reforms needed. I look forward to the Senate
tackling legal reform in this Congress.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Summary of Lawsuit Reform Act of 1995
the problem
Over the last 30 years, the American civil justice system
has become inefficient, unpredictable and costly. Those who
need the court system to resolve their disputes face
interminable delay, much of which can be blamed on frivolous
lawsuits clogging the courts or upon unreasonable litigation
when a settlement could be achieved.
The threat of lawsuits impedes invention, innovation and
the competitive position our nation has enjoyed in the world
marketplace. No nation is as litigious as the United States.
It is imperative that we restore rationality, certainty,
fairness and civility to our legal system. For too long, a
group of trial lawyers have prevented efforts to bring
reasonable change to the legal system. Many of those who
practice in our nation's courts have a vested interest in
maintaining the status quo. But just as decisions about war
are too important to leave to the generals, legal reform is
simply too important to leave to the lawyers.
The Lawsuit Reform Act of 1995 contains a variety of
options for reforming the civil justice system.
accountability in attorneys' fees
The legal system can be arcane and foreign to all but those
who make it their occupation. Consequently, clients must rely
on lawyers not only to handle their legal needs but even to
tell them what their legal needs are. As a result, lawyers,
like other experts in similar situations, are by the nature
of their work well positioned to take advantage of those who
come to them for assistance.
Most lawyers do not misuse their position. Unfortunately,
however, some do. Moreover, the organized bar, which has been
set up to serve as the principal mechanism for regulating
such abuses, has frequently--sometimes for good reason--had
considerable difficulty in drawing the line between
acceptable and unacceptable conduct.
One key area where these problems are apparent is in the
standard practice of taking tort cases on a contingent fee
basis. Contingent fees play an important role in allowing
plaintiffs to bring suit if their cases are legitimate, their
chances of recovery uncertain, and their resources limited.
But they have no place even where a plaintiff has limited
resources if the recovery is a virtual certainty. Many tort
cases are of the latter type, and the lawyers who take them
know it. Nevertheless, the lawyers still take them on a
contingent fee basis and collect very large fees because the
plaintiff does not know it.
This section is designed to put some balance in the lawyer-
client relationship. First, it requires that attorneys
disclose fee arrangements to the potential client and inform
the client that the contingent fee is not mandatory but an
option.
In addition, it limits the collection of a contingent fee
by an attorney to that portion of the award which was
achieved by the attorney's work and undertaking of risk. It
uses the party's own behavior to determine which portion of
the award that should be by setting out limits on the
attorney's contingent fee when a settlement is offered: if
the attorney is retained to advise the claimant on the
settlement offer, the attorney will be precluded from
charging a contingent fee; if the attorney's representation
results in an increased offer, the attorney may charge an
hourly or contingent fee, not to exceed 20% of the increase
in the offer; if the attorney obtains the settlement offer,
the contingent fee will be limited to 10% of the first
$100,000 and 5% of any additional amount. If the case goes to
trial, the attorney's contingent fee could only be based upon
the amount of the award that exceeds the settlement offer.
The effect is to limit the attorney contingent fee to that
portion of the case to which the attorney adds value.
Another provision requires judges, under Federal Rule of
Civil Procedure 11, to impose sanctions on attorneys who file
frivolous pleadings. Rule 11 was weakened in 1992 to give
judges the discretion to impose sanctions.
The final provision of this section introduces loser pays
in tort cases where the plaintiff seeks damages for physical
or mental injury, property damage or other economic loss.
In virtually every western nation except the U.S., the
loser pays for the costs of litigation. Within our own legal
system, we have dozens of fee shifting laws. But these have
become ``one way'' shifting, allowing only prevailing
plaintiffs to recover their attorneys' fees from losing
defendants.
This provision restores some balance in the system by
setting up a two way fee shifting that requires either losing
party in a tort case to pay the other's attorney's fees.
The loser pays rule is limited to the amount of fees owed
by the loser to its own attorney. And the loser pay rule will
not apply to those individuals and small businesses which can
least afford to pay. In addition, courts would retain
discretion to refuse to award attorneys' fees or reduce the
award if it would be in the interests of justice.
early offer
A lawsuit can be avoided if the injured party gets fully
compensated quickly. Moreover, a defendant may be willing to
pay compensation but is prevented from doing so by the need
to make an offer that will also pay the plaintiff's lawyer
handsomely. This section creates sufficient incentives for a
prompt compensatory settlement that should overcome this
obstacle.
First, it sets up a mechanism allowing the potential
plaintiff to notify the potential defendants of the injury
and the compensation necessary. The potential defendant will
then be allowed to make an early offer to pay all economic
losses, including future economic losses; if it is accepted,
the matter is resolved without a lawsuit. If the plaintiff
elects to prove the elements of the case beyond a reasonable
doubt, including that the defendant was grossly negligent or
intentionally caused the injury, the plaintiff will not be
foreclosed from bringing a lawsuit.
Fair Share Assessment of Damages
Defendants' liability, in the American legal system, is
often based upon the ability to pay and not on the degree of
responsibility. The doctrine of ``joint and several
liability'' permits a plaintiff to recover the entire damage
award from any of the defendants sued. If one defendant is
judgment-proof, but was 80% responsible, the plaintiff can
still get the entire judgment paid by another defendant, even
though that defendant was significantly less responsible.
This section reforms the doctrine of joint and several
liability and permits recovery from a defendant only for
damages attributable to the person's share of responsibility.
It applies to tort cases where the plaintiff seeks damages
for physical or mental injury, property damage or economic
loss.
Eliminate Double Recoveries
A plaintiff can recover damages without regard to money the
plaintiff may be receiving from other sources, such as
disability insurance or a wage continuation program.
This section would put an end to these double recoveries by
prohibiting the inclusion of these collateral sources from
the proof of damages. And it prohibits subrogation
[[Page S1851]] claims by the entities providing these
collateral source payments. This provision applies to tort
cases where the plaintiff seeks damages for physical or
mental injury, property damage or economic loss.
Punitive Damages as Punishment, not Windfall
Those accused of a crime have constitutional protection;
they are informed of the charges against them and know the
punishment they face.
In many cases, civil defendants face punitive damage awards
that bear no relationship to the concept of punishment and
deterrence and are designed to further compensate the
plaintiff and his or her attorney. A reasonable limit on
punitive damages will serve the public policy objective of
punishment and deterrence. The bill limits punitive damages
in tort cases where the plaintiff seeks damages for physical
or mental injury, property damage or economic loss, to the
greater of $250,000 or three times compensatory damages.
Alternative Dispute Resolution
Encouragement of ADR should be a focus of any civil justice
reform effort. However, ADR should not become another
procedural hurdle for litigants.
This section creates voluntary binding ADR. It requires, in
all federal question and diversity cases, parties be told by
their attorneys of ADR options. If parties agree to ADR, then
they are bound by its results.
Ensuring Expert Witnesses have Expertise
Too often, parties in a lawsuit bring in a witness asserted
to be an ``expert'' to offer an opinion which supports a
particular theory of the case. The 1975 Federal Rules of
Evidence--in allowing any expert testimony that might be
``helpful'' to the jury--depart from the traditional
standard: that expert testimony should only be admitted if
its basis has ``gained general acceptance in the particular
field.'' The result has been a slippery slope to junk science
finding its way into courtrooms across the nation.
This section is designed to ensure the expert witness
actually has some expertise in a recognized field, and it
will require the disqualification of any expert witness whose
compensation is linked to the outcome of the case.
Private Rights of Action
Too many judges have a tendency to imply a private right of
action in a law where Congress does not explicitly create it.
The result is excessive litigation and a power grab by the
courts never intended by Congress.
This section creates a rule of construction that federal
laws which do not expressly contain a private right of action
should not be interpreted to imply one.
``Opt Out'' by the States
States will retain the right to opt out of any one or more
of the provisions of this Act by affirmatively enacting
legislation to opt out.
Mr. ABRAHAM. Mr. President, it is my great pleasure to
cosponsor the Lawsuit Reform Act of 1995.
Last fall's election was about change. And if ever there was an area
in need of change, it is the current state of our legal system.
The current system doesn't work. It is arbitrary and imposes
excessive costs and long delays. It must be reoriented to bring about
the proper objectives of any legal system: swift justice and fair
results.
Moreover, our litigation explosion is hurting U.S. competitiveness
and stifling innovation with the high costs of lawsuits and damage
awards in our courts. The costs are estimated to reach $300 billion
annually--about 4.5 percent of the Nation's $6.7 trillion gross
domestic product. These costs are passed on to consumers, making legal
system their enemy rather than their ally.
It is time for an overhaul of the system. The McConnell-Abraham
Lawsuit Reform Act of 1995 signals the beginning of my efforts to help
bring about that overhaul.
The McConnell-Abraham Lawsuit Reform Act is principally aimed at one
aspect of the litigation problem. Our current system contains
insufficient incentives to reward settlements, and insufficient
penalties for litigating to the hilt disputes that should be able to be
worked out.
One cause of this is that as litigation has been exploding, more and
more lawyers have sought to maximize their fees at the expense of their
clients' best interests. And while the legal profession has made
attempts at self-regulation, it has been largely unsuccessful in
stopping this trend.
The McConnell-Abraham Lawsuit Reform Act of 1995 takes an extremely
innovative approach to this problem. It empowers clients in personal
injury cases by creating incentives for potential plaintiffs and
defendants to get together and settle meritorious cases. It also
reduces lawyers' incentives to discourage settlements by barring them
from charging contingent fees in cases where recovery is all but
certain. And it creates penalties for frivolous litigation, ranging
from mandatory sanctions for frivolous filings to a ``loser pays'' rule
in certain classes of cases.
In short, the McConnell-Abraham Lawsuit Reform Act of 1995 will bring
our legal system closer to accomplishing its central purposes: swift
and certain redress for the meritorious claimant and penalties for
abusive litigation. Therefore I am proud to join the distinguished
Senator from Kentucky as an original cosponsor of this excellent piece
of legislation.
______
By Mr. KYL:
S. 301. A bill to provide for the negotiation of bilateral prisoner
transfer treaties with foreign countries and to provide for the
training in the United States of border patrol and customs service
personnel from foreign countries; to the Committee on Foreign
Relations.
THE CRIMINAL ALIEN TRANSFER AND BORDER ENFORCEMENT ACT OF 1995
Mr. KYL. Mr. President, today, I am introducing the Criminal Alien
Transfer and Border Enforcement Act of 1995, legislation to make it
easier to return criminal aliens back to their country of citizenship
to serve out the remainder of their sentences. I was an original
cosponsor of similar legislation introduced in the House last year by
Representative Steve Horn of California. Representative Horn
reintroduced this legislation in the 104th Congress on January 18. His
hard work in this area is very much appreciated.
The Criminal Alien Transfer and Border Enforcement Act advises the
President to renegotiate bilateral prison transfer treaties with
countries which have large numbers of alien criminals in U.S. prisons.
The elimination of any requirement of prisoner consent would be a
primary focus of the renegotiation. As an incentive to renegotiate
their treaties, this bill would allow foreign governments that
renegotiate and comply with a new treaty to send their law enforcement
personnel to the Border Patrol and Customs Service academies where an
integrated approach to drug interdiction and border management would be
developed.
The tremendous financial burden that the Federal Government and
States incur to imprison criminal aliens continues to grow. The Bureau
of Prisons, for example, estimates that the incarceration of criminal
aliens in U.S. and State prisons costs U.S. taxpayers approximately
$1.2 billion a year. Criminal aliens make up about 24 percent of the
total 91,000 Federal prison population. At a cost of $20,803 per
Federal prisoner, taxpayers from Maine to California to Arizona are
footing the bill to incarcerate these criminals. A national approach to
returning these criminal aliens home and eliminating these costs must
be developed.
On a State level, Arizona knows all too well about these costs.
According to the Arizona Department of Corrections, the number of
criminal aliens in Arizona State prisons has increased from 596 in 1984
to 2,066 as of December 31, 1994, a 250-percent increase. Criminal
aliens comprise 10.4 percent of Arizona's inmate population; that
compares to a State criminal alien inmate population of 4 percent
nationally. Those 2,066 criminals cost Arizona taxpayers $16,020 each,
or nearly $40 million in total last year.
The logical way to reduce these costs would be to work out an
agreement where a country would except the responsibility for taking
its own citizens back and ensuring that the prison term is completed
before the individual is released back into his or her own country.
But, current bilateral prison transfer treaties allow criminal aliens
to choose whether they will serve time in the United States or their
country of citizenship. As a result, the criminal can circumvent any
agreement worked out between two countries or a State and foreign
government. This must change.
Our Nation's citizens are shocked when they hear that this is how our
Nation's prison transfer treaties work. For example, in June of 1994 I
had a constituent from Phoenix write me with some good suggestions
about immigration reform. In the letter he said, ``Can you enlighten me
as to whether or not we have a law on the books
[[Page S1852]] which definitely requires the deportation of aliens who
commit and are convicted of felonies? * * * [Someone] told me that once
the alien is convicted of a felony, he is immediately deported to the
country of origin with no appeals process and no bail.''
My answer to him was that this is how it should work but, because of
the way our bilateral prison transfer treaties are written, I
reemphasize, criminal aliens choose whether or not they are deported to
their own country to serve out their sentences.
Arizona has been particularly negatively impacted by this aspect of
prison transfer treaties, specifically the United States-Mexico Prison
Transfer Treaty. Gov. Fife Symington and Department of Corrections
Director Sam Lewis have been working with Mexican authorities and the
State Department to return some Mexican inmates to serve their
sentences in Mexico. But, without the elimination of the prisoner
consent provision of the outdated United States-Mexico Prison Transfer
Treaty, the likelihood of their return is minimal. ``Of those who we
have determined to be eligible under the present [voluntary
repatriation] criteria, 5 percent or less have demonstrated any
willingness to return [to Mexico],'' said DOC Director Lewis in a
recent conversation.
Something is clearly wrong when States such as Arizona, which have
ideas about how to reduce the burden of incarcerating illegal aliens,
are kept from doing so because the criminal does not like the idea of
serving time in the prison system of his or her country.
Mr. President, this problem is not going away. The INS estimates that
as of October 1992, approximately 3.4 million illegal aliens were in
this country and, according to INS, that number is growing by about
300,000 yearly. In the Tucson border sector of Arizona alone, illegal
immigrant apprehensions for the month of January are up 80 percent over
the same period last year.
I ask unanimous consent that a table be printed in the Record.
There being no objection, the table was ordered to be printed in the
Record, as follows:
Arizona Department of Corrections--Estimates of Alien Inmate Population
and Annual Per Capita Costs
------------------------------------------------------------------------
Date Aliens--estimated number Annual per capita cost
------------------------------------------------------------------------
12/31/94..... 2,066 16,020
6/30/94...... 1,968 16,020
6/30/93...... 1,791 15,773
6/30/92...... 1,602 15,979
6/30/91...... 1,422 16,457
6/30/90...... 1,289 16,143
6/30/89...... 1,153 16,174
6/30/88...... 1,040 15,717
6/30/87...... 957 16,321
6/30/86...... 774 15,497
6/30/85...... 684 13,882
6/30/84...... 596 NA
------------------------------------------------------------------------
Mr. KYL. Mr. President, nearly 600 illegal immigrants are arrested
every day in Nogales, AZ. These statistics will most likely set an all-
time illegal immigrant apprehension arrest record for Arizona.
Ensuring that adequate resources are allocated to stop these aliens
at the border is the most important step we can take toward halting
illegal immigration in this country. Renegotiating prison transfer
treaties is another important step and one that will free up Federal
and State dollars to go toward effective border control.
We are a land of legal immigrants and we should be proud to be and
say so. But, no American, foreign-born or U.S.-born, believes we should
be a land of criminal and illegal immigrants. The Criminal Alien
Transfer and Border Enforcement Act will provide a necessary step to
ensuring that we do not become a nation of illegal and criminal aliens.
Mr. President, I encourage my colleagues to join me in urging the
President to renegotiate our Nation's bilateral prison transfer
treaties and to cosponsor this bill.
I ask unanimous consent that this bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 301
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 ``Criminal Alien Transfer and
Border Enforcement Act of 1995''.
SEC. 2. PURPOSE.
The purpose of this Act is to relieve overcrowding in
Federal and State prisons and costs borne by American
taxpayers by providing for the transfer of aliens unlawfully
in the United States who have been convicted of committing
crimes in the United States to their native countries to be
incarcerated for the duration of their sentences.
SEC. 3. FINDINGS.
The Congress makes the following findings:
(1) The cost of incarcerating an alien unlawfully in the
United States in a Federal or State prison averages $20,803
per year.
(2) There are approximately 58,000 aliens convicted of
crimes incarcerated in United States prisons, including
41,000 aliens in State prisons and 17,000 aliens in Federal
prisons.
(3) Many of these aliens convicted of crimes are also
unlawfully in the United States, but the Immigration and
Naturalization Service does not have exact data on how many.
(4) The combined cost to Federal and State governments for
the incarceration of such criminal aliens is approximately
$1,200,000,000, including--
(A) for State governments, $760,000,000; and
(B) for the Federal Government, $440,000,000.
SEC. 4. PRISONER TRANSFER TREATIES.
Not later than 90 days after the date of enactment of this
Act, the President should begin to negotiate and renegotiate
bilateral prisoner transfer treaties. The focus of such
negotiations shall be to expedite the transfer of aliens
unlawfully in the United States who are incarcerated in
United States prisons, to ensure that a transferred prisoner
serves the balance of the sentence imposed by the United
States courts, and to eliminate any requirement of prisoner
consent to such a transfer.
SEC. 5. CERTIFICATION.
The President shall certify whether each prisoner transfer
treaty is effective in returning aliens unlawfully in the
United States who are incarcerated in the United States to
their country of citizenship.
SEC. 6. TRAINING OF BORDER PATROL AND CUSTOMS PERSONNEL FROM
FOREIGN COUNTRIES.
Subject to a certification under section 5, the President
shall direct the Border Patrol Academy and the Customs
Service Academy to enroll for training certain foreign law
enforcement personnel. The President shall make appointments
of foreign law enforcement personnel to such academies to
enhance the following United States law enforcement goals:
(1) Drug interdiction and other cross-border criminal
activity.
(2) Preventing illegal immigration.
(3) Preventing the illegal entry of goods into the United
States (including goods the sale of which is illegal in the
United States, the entry of which would cause a quota to be
exceeded, or goods which have not paid the appropriate duty
or tariff).
______
By Mrs. HUTCHISON;
S. 302. A bill to make a technical correction to section 11501(h)(2)
of title 49, United State Code; to the Committee on Commerce, Science,
and Transportation.
nonconsent tow legislation
Mrs. HUTCHISON. Mr. President, last year, the 103d Congress
preempted State regulation of intrastate trucking, which was a proper
policy that had my full support. However, in its breadth, deregulation
swept local government regulation of tow trucks into its net, leaving
local governments uncertain about their rules governing the area of
nonconsent tows.
Nonconsent tows occur at the scene of an accident where the owner is
unable to give consent to towing, and when a car is towed from private
property without the knowledge or consent of the owner. Local
regulation of emergency nonconsent tows is aimed ostensibly at
protecting the motoring public at the scene of an accident to prevent a
swarm of tow truck operators. Local regulation of private property
nonconsent tows are consumer protection rules which generally go to how
much a nonconsent tow from private property will cost and where the car
can be taken.
After the passage of trucking deregulation, Senator Gorton and I
introduced legislation to roll back the preemption of deregulation over
tow trucks and transporters of recyclable materials. The bill passed in
the Senate but was changed in the House; the legislative clock ran out
before identical versions could be passed in both houses.
Trucking deregulation went into effect on January 1 and local
governments have moved to comply with deregulation of towing price,
route and service; however, there is still a great deal of confusion
throughout local jurisdictions around the country regarding the degree
to which cities can regulate nonconsent tows. Some city councils, such
as the city of Houston's, have chosen to impose a 120-day moratorium on
changing their regulations until
[[Page S1853]] Congress has had a chance to act in this area and
clarify local authority.
The legislation I introduce today provides that clarification. It
states that tows made at the request of a law enforcement officer or
without the prior consent of the owner are not subject to the terms of
the intrastate trucking deregulation, retroactive to January 1, when
deregulation took effect. This will permit cities to continue rate
regulation for nonconsent tows, which protects consumers that have
little or no negotiating power in nonconsent tow situations. It will
also permit them to utilize a system of selection for emergency
nonconsent tows, if they so choose.
______
By Mr. LIEBERMAN (for himself, Mr. McCain, Mr. Bradley, Mr.
Brown, Mr. Coats, Mr. Kyl, and Mr. McConnell):
S. 303. A bill to establish rules governing product liability actions
against raw materials and bulk component suppliers to medical device
manufacturers, and for other purposes; to the Committee on Commerce,
Science, and Transportation.
The Biomaterials Access Assurance Act of 1995
Mr. LIEBERMAN. Mr. President, I am introducing today, together
with Senator McCain and others the Biomaterials Access Assurance Act of
1995. This bill directly addresses a major threat to many of the
miracles of modern medicine. By taking this small step now, millions of
Americans will no longer have to worry about the supply of life-saving
medical devices.
Over the next few years, public health may be seriously jeopardized
if makers of the life-saving medical devices that we take for granted
today are no longer able to buy the raw materials and components
necessary to produce their products. The reason is an all too common
one nowadays--an out-of-control product liability system.
How could this happen? Last year, as chairman of the Subcommittee on
Regulation and Government Information, I held a hearing to examine this
problem. Witness after witness pointed out that the current legal
system makes it too easy to bring lawsuits against raw materials
suppliers and too expensive for those suppliers to defend themselves--
even when they were not at fault and end up winning. Because of this,
many suppliers have decided that the costs of defending these lawsuits
are just too high to justify selling raw materials to the makers of
implantable medical devices. In short, for those suppliers, it just
isn't worth it.
How could this happen? A recent study by Aronoff Associates paints a
clear, but dismal, picture. That study surveyed the markets for
polyester yarn, resins such as DuPont's Teflon, and polyacetal resin
such as DuPont's Delrin. The study showed that sales of these raw
materials for use in manufacturing implantable medical devices was just
a tiny percentage--0.006 percent--of the overall market--$606,000 out
of total sales of over $11 billion.
In return for that extra $606,000 in total annual sales, however,
that raw material supplier, like others, faced potentially huge
liability related costs, even if they never lose a lawsuit. To take one
example, a company named Vitek manufactured an estimated 26,000 jaw
implants using about 5 cents worth of DuPont Teflon in each device. The
device was developed, designed and marketed by Vitek, which was not
related to DuPont. When those implants failed, Vitek declared
bankruptcy, its founder fled to Switzerland and the patients sued
DuPont. DuPont has won virtually all these cases--one of the last cases
was dismissed earlier this month--but the cost has been staggering. The
study estimated that DuPont alone has spent at least $8 million per
year over 6 years to defend these suits.
To put this into perspective, DuPont's estimated legal expenses in
these cases for just 1 year would buy over a 13-year supply of DuPont's
Dacron polyester, Teflon and Delrin for all U.S. makers of implantable
medical devices, not just makers of jaw implants.
Faced with this overwhelming liability, DuPont decided 2 years ago to
stop selling its products to manufacturers of permanently implanted
medical devices. DuPont has subsequently allowed manufacturers to
purchase up to 3 more years worth of raw materials.
One supplier's decision alone might not be troublesome except that
there is no reason to believe that the economics will be different for
other suppliers around the world. One of the witnesses at the hearing
testified that she has already contacted 15 alternate suppliers of
polyester yearn worldwide. All were interested in selling her raw
materials--except for use in products made and used in the United
States. By itself, this is a powerful statement about the nature of our
American product
liability laws, and makes a powerful case for reform.
There's more at stake however, here than just protecting suppliers
from liability. It's more than just making those raw materials
available to the manufacturers of medical devices. What's at stake is
the health of millions of Americans who depend on medical devices for
their every day survival.
What's at stake is the health of children like Thomas Reilly from
Houston, TX, who suffers from hydrocephalus, a condition in which fluid
accumulates around the brain. A special shunt enables him to survive.
But continued production of that shunt is in doubt because the raw
materials' suppliers are concerned about the potential lawsuit costs.
At our hearing last year, Thomas' father, Mark Reilly, pleaded for
Congress to move forward quickly to assure that the supply of those
shunts will continue.
What's at stake is the health of adults like Peggy Phillips of Falls
Church, VA, whose heart had twice stopped beating because of
fibrillation. Today, she lives an active, normal life because she has
an implanted automatic defibrillator. Again, critical components of the
defilbrillator may no longer be available because of potential product
liability costs. Ms. Phillips urges Congress to move swiftly to enact
legislation protecting raw materials and component part suppliers from
product liability.
The scope of this problem affects young and old alike. Take a
pacemaker. Pacemakers are installed in patients whose hearts no longer
generate enough of an electrical pulse to get the heart to beat. To
keep the heart beating, a pacemaker is connected to the heart with
wires. These wires have silicone rubber insulation. Unfortunately, the
suppliers of the rubber have begun to withdraw from the market. With
this pacemaker, thousands of Americans can live productive and healthy
lives for decades.
Take another example, a heart valve. Around the edge of a heart valve
is a sleeve of polyester fabric. This fabric is what the surgeon sews
through when he or she installs this valve. Without that sleeve, it
would be difficult, if not impossible, to install the valve. Without
that valve, patients die prematurely.
In short, this developing product liability crisis will have
widespread and serious effects. We cannot simply allow the over 7
million people who own their health to medical devices to become
casualties of an outmoded legal liability system. Because product
liability litigation costs make the economics of supplying raw
materials to the implantable medical device makers very unfavorable, it
is imperative that we act now. We cannot rationally expect raw
materials suppliers to continue to serve the medical device market out
of the goodness of their hearts, notwithstanding the liability related
costs. We need to reform our product liability laws, to give raw
material suppliers some assurance that unless there is real evidence
that they were responsible for putting a defective device on the
market, they cannot be sued simply in the hope that there deep pockets
will fund legal settlements.
I have long believed that liability reform could be both proconsumer
and probusiness. I believe the testimony we heard on this subject last
year proved this once again. When fear of liability suits and
litigation costs drives valuable, lifesaving products off the market
because their makers cannot get raw materials, consumers are the ones
to suffer.
When companies divert money from developing new lifesaving products
to replace old sources of raw materials supply, consumers are again the
ones to suffer. When one company must spend millions just to defend
itself in lawsuits over a product it did not even design or make--for
which it simply provided a raw material worth 5
[[Page S1854]] cents--it is the consumer that suffers the most. Our
hearing dramatically illustrated that efforts to increase compensation
for the injured can sometimes come at an unacceptably high cost.
Based on the testimony we heard, I, along with my distinguished
colleague from Arizona, are committed to forging a solution to remedy
this immediate threat to our national public health. Today, we are
introducing the Biomaterials Access Assurance Act of 1995, which will
establish clear national rules to govern suits against suppliers of raw
materials and component parts for permanently implantable medical
devices. Under this bill, a supplier of raw materials or component
parts can only be sued if the materials they supplied do not meet
contractual specifications, or can properly be classified as a
manufacturer or seller of the whole product. They cannot, however, be
sued for deficiencies in the design of the final device, the testing of
that device, or for inadequate warnings with respect to that device.
I believe that enactment of this bill would help ensure that
America's patients continue to have access to the best lifesaving
medical devices in the world. We must act now, however. This piece of
legislation is preventative medicine at its best and is just the cure
the patients need.
I ask unanimous consent that a copy of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 303
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 ``Biomaterials Access
Assurance Act of 1995''.
SEC. 2. FINDINGS.
Congress finds that--
(1) each year millions of citizens of the United States
depend on the availability of lifesaving or life-enhancing
medical devices, many of which are permanently implantable
within the human body;
(2) a continued supply of raw materials and component parts
is necessary for the invention, development, improvement, and
maintenance of the supply of the devices;
(3) most of the medical devices are made with raw materials
and component parts that--
(A) are not designed or manufactured specifically for use
in medical devices; and
(B) come in contact with internal human tissue;
(4) the raw materials and component parts also are used in
a variety of nonmedical products;
(5) because small quantities of the raw materials and
component parts are used for medical devices, sales of raw
materials and component parts for medical devices constitute
an extremely small portion of the overall market for the raw
materials and medical devices;
(6) under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.), manufacturers of medical devices are
required to demonstrate that the medical devices are safe and
effective, including demonstrating that the products are
properly designed and have adequate warnings or instructions;
(7) notwithstanding the fact that raw materials and
component parts suppliers do not design, produce, or test a
final medical device, the suppliers have been the subject of
actions alleging inadequate--
(A) design and testing of medical devices manufactured with
materials or parts supplied by the suppliers; or
(B) warnings related to the use of such medical devices;
(8) even though suppliers of raw materials and component
parts have very rarely been held liable in such actions, such
suppliers have ceased supplying certain raw materials and
component parts for use in medical devices because the costs
associated with litigation in order to ensure a favorable
judgment for the suppliers far exceeds the total potential
sales revenues from sales by such suppliers to the medical
device industry;
(9) unless alternate sources of supply can be found, the
unavailability of raw materials and component parts for
medical devices will lead to unavailability of lifesaving and
life-enhancing medical devices;
(10) because other suppliers of the raw materials and
component parts in foreign nations are refusing to sell raw
materials or component parts for use in manufacturing certain
medical devices in the United States, the prospects for
development of new sources of supply for the full range of
threatened raw materials and component parts for medical
devices are remote;
(11) it is unlikely that the small market for such raw
materials and component parts in the United States could
support the large investment needed to develop new suppliers
of such raw materials and component parts;
(12) attempts to develop such new suppliers would raise the
cost of medical devices;
(13) courts that have considered the duties of the
suppliers of the raw materials and component parts have
generally found that the suppliers do not have a duty--
(A) to evaluate the safety and efficacy of the use of a raw
material or component part in a medical device; and
(B) to warn consumers concerning the safety and
effectiveness of a medical device;
(14) attempts to impose the duties referred to in
subparagraphs (A) and (B) of paragraph (13) on suppliers of
the raw materials and component parts would cause more harm
than good by driving the suppliers to cease supplying
manufacturers of medical devices; and
(15) in order to safeguard the availability of a wide
variety of lifesaving and life-enhancing medical devices,
immediate action is needed--
(A) to clarify the permissible bases of liability for
suppliers of raw materials and component parts for medical
devices; and
(B) to provide expeditious procedures to dispose of
unwarranted suits against the suppliers in such manner as to
minimize litigation costs.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Biomaterials supplier.--
(A) In general.--The term ``biomaterials supplier'' means
an entity that directly or indirectly supplies a component
part or raw material for use in the manufacture of an
implant.
(B) Persons included.--Such term includes any person who--
(i) has submitted master files to the Secretary for
purposes of premarket approval of a medical device; or
(ii) licenses a biomaterials supplier to produce component
parts or raw materials.
(2) Claimant.--
(A) In general.--The term ``claimant'' means any person who
brings a civil action, or on whose behalf a civil action is
brought, arising from harm allegedly caused directly or
indirectly by an implant, including a person other than the
individual into whose body, or in contact with whose blood or
tissue, the implant is placed, who claims to have suffered
harm as a result of the implant.
(B) Action brought on behalf of an estate.--With respect to
an action brought on behalf or through the estate of an
individual into whose body, or in contact with whose blood or
tissue the implant is placed, such term includes the decedent
that is the subject of the action.
(C) Action brought on behalf of a minor.--With respect to
an action brought on behalf or through a minor, such term
includes the parent or guardian of the minor.
(D) Exclusions.--Such term does not include--
(i) a provider of professional services, in any case in
which--
(I) the sale or use of an implant is incidental to the
transaction; and
(II) the essence of the transaction is the furnishing of
judgment, skill, or services; or
(ii) a manufacturer, seller, or biomaterials supplier.
(3) Component part.--
(A) In general.--The term ``component part'' means a
manufactured piece of an implant.
(B) Certain components.--Such term includes a manufactured
piece of an implant that--
(i) has significant nonimplant applications; and
(ii) alone, has no implant value or purpose, but when
combined with other component parts and materials,
constitutes an implant.
(4) Harm.--
(A) In general.--The term ``harm'' means--
(i) any injury to or damage suffered by an individual;
(ii) any illness, disease, or death of that individual
resulting from that injury or damage; and
(iii) any loss to that individual or any other individual
resulting from that injury or damage.
(B) Exclusion.--The term does not include any commercial
loss or loss of or damage to an implant.
(5) Implant.--The term ``implant'' means--
(A) a medical device that is intended by the manufacturer
of the device--
(i) to be placed into a surgically or naturally formed or
existing cavity of the body for a period of at least 30 days;
or
(ii) to remain in contact with bodily fluids or internal
human tissue through a surgically produced opening for a
period of less than 30 days; and
(B) suture materials used in implant procedures.
(6) Manufacturer.--The term ``manufacturer'' means any
person who, with respect to an implant--
(A) is engaged in the manufacture, preparation,
propagation, compounding, or processing (as defined in
section 510(a)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(a)(1)) of the implant; and
(B) is required--
(i) to register with the Secretary pursuant to section 510
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360)
and the regulations issued under such section; and
(ii) to include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section.
(7) Medical device.--The term ``medical device'' means a
device, as defined in section
[[Page S1855]] 201(h) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321(h)).
(8) Qualified specialist.--With respect to an action, the
term ``qualified specialist'' means a person who is qualified
by knowledge, skill, experience, training, or education in
the specialty area that is the subject of the action.
(9) Raw material.--The term ``raw material'' means a
substance or product that--
(A) has a generic use; and
(B) may be used in an application other than an implant.
(10) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(11) Seller.--
(A) In general.--The term ``seller'' means a person who, in
the course of a business conducted for that purpose, sells,
distributes, leases, packages, labels, or otherwise places an
implant in the stream of commerce.
(B) Exclusions.--The term does not include--
(i) a seller or lessor of real property;
(ii) a provider of professional services, in any case in
which the sale or use of an implant is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who acts in only a financial capacity with
respect to the sale of an implant.
SEC. 4. GENERAL REQUIREMENTS; APPLICABILITY; PREEMPTION.
(a) General Requirements.--
(1) In general.--In any civil action covered by this Act, a
biomaterials supplier may raise any defense set forth in
section 5.
(2) Procedures.--Notwithstanding any other provision of
law, the Federal or State court in which a civil action
covered by this Act is pending shall, in connection with a
motion for dismissal or judgment based on a defense described
in paragraph (1), use the procedures set forth in section 6.
(b) Applicability.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding any other provision of law, this Act applies
to any civil action brought by a claimant, whether in a
Federal or State court, against a manufacturer, seller, or
biomaterials supplier, on the basis of any legal theory, for
harm allegedly caused by an implant.
(2) Exclusion.--A civil action brought by a purchaser of a
medical device for use in providing professional services
against a manufacturer, seller, or biomaterials supplier for
loss or damage to an implant or for commercial loss to the
purchaser--
(A) shall not be considered an action that is subject to
this Act; and
(B) shall be governed by applicable commercial or contract
law.
(c) Scope of Preemption.--
(1) In general.--This Act supersedes any State law
regarding recovery for harm caused by an implant and any rule
of procedure applicable to a civil action to recover damages
for such harm only to the extent that this Act establishes a
rule of law applicable to the recovery of such damages.
(2) Applicability of other laws.--Any issue that arises
under this Act and that is not governed by a rule of law
applicable to the recovery of damages described in paragraph
(1) shall be governed by applicable Federal or State law.
(d) Statutory Construction.--Nothing in this Act may be
construed--
(1) to affect any defense available to a defendant under
any other provisions of Federal or State law in an action
alleging harm caused by an implant; or
(2) to create a cause of action or Federal court
jurisdiction pursuant to section 1331 or 1337 of title 28,
United States Code, that otherwise would not exist under
applicable Federal or State law.
SEC. 5. LIABILITY OF BIOMATERIALS SUPPLIERS.
(a) In General.--
(1) Exclusion from liability.--Except as provided in
paragraph (2), a biomaterials supplier shall not be liable
for harm to a claimant caused by an implant.
(2) Liability.--A biomaterials supplier that--
(A) is a manufacturer may be liable for harm to a claimant
described in subsection (b);
(B) is a seller may be liable for harm to a claimant
described in subsection (c); and
(C) furnishes raw materials or component parts that fail to
meet applicable contractual requirements or specifications
may be liable for a harm to a claimant described in
subsection (d).
(b) Liability as Manufacturer.--
(1) In general.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant if the
biomaterials supplier is the manufacturer of the implant.
(2) Grounds for liability.--The biomaterials supplier may
be considered the manufacturer of the implant that allegedly
caused harm to a claimant only if the biomaterials supplier--
(A)(i) has registered with the Secretary pursuant to
section 510 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360) and the regulations issued under such section;
and
(ii) included the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section;
or
(B) is the subject of a declaration issued by the Secretary
pursuant to paragraph (3) that states that the supplier, with
respect to the implant that allegedly caused harm to the
claimant, was required to--
(i) register with the Secretary under section 510 of such
Act (21 U.S.C. 360), and the regulations issued under such
section, but failed to do so; or
(ii) include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section,
but failed to do so.
(3) Administrative procedures.--
(A) In general.--The Secretary may issue a declaration
described in paragraph (2)(B) on the motion of the Secretary
or on petition by any person, after providing--
(i) notice to the affected persons; and
(ii) an opportunity for an informal hearing.
(B) Docketing and final decision.--Immediately upon receipt
of a petition filed pursuant to this paragraph, the Secretary
shall docket the petition. Not later than 180 days after the
petition is filed, the Secretary shall issue a final decision
on the petition.
(C) Applicability of statute of limitations.--Any
applicable statute of limitations shall toll during the
period during which a claimant has filed a petition with the
Secretary under this paragraph.
(c) Liability as Seller.--A biomaterials supplier may, to
the extent required and permitted by any other applicable
law, be liable as a seller for harm to a claimant caused by
an implant if the biomaterials supplier--
(1) held title to the implant that allegedly caused harm to
the claimant as a result of purchasing the implant after--
(A) the manufacture of the implant; and
(B) the entrance of the implant in the stream of commerce;
and
(2) subsequently resold the implant.
(d) Liability for Violating Contractual Requirements or
Specifications.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant, if the claimant
in an action shows, by a preponderance of the evidence,
that--
(1) the raw materials or component parts delivered by the
biomaterials supplier either--
(A) did not constitute the product described in the
contract between the biomaterials supplier and the person who
contracted for delivery of the product; or
(B) failed to meet any specifications that were--
(i) provided to the biomaterials supplier and not expressly
repudiated by the biomaterials supplier prior to acceptance
of delivery of the raw materials or component parts;
(ii)(I) published by the biomaterials supplier;
(II) provided to the manufacturer by the biomaterials
supplier; or
(III) contained in a master file that was submitted by the
biomaterials supplier to the Secretary and that is currently
maintained by the biomaterials supplier for purposes of
premarket approval of medical devices; or
(iii)(I) included in the submissions for purposes of
premarket approval or review by the Secretary under section
510, 513, 515, or 520 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360, 360c, 360e, or 360j); and
(II) have received clearance from the Secretary,
if such specifications were provided by the manufacturer to
the biomaterials supplier and were not expressly repudiated
by the biomaterials supplier prior to the acceptance by the
manufacturer of delivery of the raw materials or component
parts; and
(2) such conduct was an actual and proximate cause of the
harm to the claimant.
SEC. 6. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST
BIOMATERIALS SUPPLIERS.
(a) Motion To Dismiss.--In any action that is subject to
this Act, a biomaterials supplier who is a defendant in such
action may, at any time during which a motion to dismiss may
be filed under an applicable law, move to dismiss the action
on the grounds that--
(1) the defendant is a biomaterials supplier; and
(2)(A) the defendant should not, for the purposes of--
(i) section 5(b), be considered to be a manufacturer of the
implant that is subject to such section; or
(ii) section 5(c), be considered to be a seller of the
implant that allegedly caused harm to the claimant; or
(B)(i) the claimant has failed to establish, pursuant to
section 5(d), that the supplier furnished raw materials or
component parts in violation of contractual requirements or
specifications; or
(ii) the claimant has failed to comply with the procedural
requirements of subsection (b).
(b) Procedural Requirements.--
(1) In general.--The procedural requirements described in
paragraphs (2) and (3) shall apply to any action by a
claimant against a biomaterials supplier that is subject to
this Act.
(2) Manufacturer of implant shall be named a party.--The
claimant shall be required to name the manufacturer of the
implant as a party to the action, unless--
(A) the manufacturer is subject to service of process
solely in a jurisdiction in which the biomaterials supplier
is not domiciled or subject to a service of process; or
(B) an action against the manufacturer is barred by
applicable law.
[[Page S1856]] (3) Affidavit.--At the time the claimant
brings an action against a biomaterials supplier the claimant
shall be required to submit an affidavit that--
(A) declares that the claimant has consulted and reviewed
the facts of the action with a qualified specialist, whose
qualifications the claimant shall disclose;
(B) includes a written determination by a qualified
specialist that the raw materials or component parts actually
used in the manufacture of the implant of the claimant were
raw materials or component parts described in section
5(d)(1), together with a statement of the basis for such a
determination;
(C) includes a written determination by a qualified
specialist that, after a review of the medical record and
other relevant material, the raw material or component part
supplied by the biomaterials supplier and actually used in
the manufacture of the implant was a cause of the harm
alleged by claimant, together with a statement of the basis
for the determination; and
(D) states that, on the basis of review and consultation of
the qualified specialist, the claimant (or the attorney of
the claimant) has concluded that there is a reasonable and
meritorious cause for the filing of the action against the
biomaterials supplier.
(c) Proceeding on Motion To Dismiss.--The following rules
shall apply to any proceeding on a motion to dismiss filed
under this section:
(1) Affidavits relating to listing and declarations.--
(A) In general.--The defendant in the action may submit an
affidavit demonstrating that defendant has not included the
implant on a list, if any, filed with the Secretary pursuant
to section 510(j) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(j)).
(B) Response to motion to dismiss.--In response to the
motion to dismiss, the claimant may submit an affidavit
demonstrating that--
(i) the Secretary has, with respect to the defendant and
the implant that allegedly caused harm to the claimant,
issued a declaration pursuant to section 5(b)(2)(B); or
(ii) the defendant who filed the motion to dismiss is a
seller of the implant who is liable under section 5(c).
(2) Effect of motion to dismiss on discovery.--
(A) In general.--If a defendant files a motion to dismiss
under paragraph (1) or (3) of subsection (a), no discovery
shall be permitted in connection to the action that is the
subject of the motion, other than discovery necessary to
determine a motion to dismiss for lack of jurisdiction, until
such time as the court rules on the motion to dismiss in
accordance with the affidavits submitted by the parties in
accordance with this section.
(B) Discovery.--If a defendant files a motion to dismiss
under subsection (a)(2) on the grounds that the biomaterials
supplier did not furnish raw materials or component parts in
violation of contractual requirements or specifications, the
court may permit discovery, as ordered by the court. The
discovery conducted pursuant to this subparagraph shall be
limited to issues that are directly relevant to--
(i) the pending motion to dismiss; or
(ii) the jurisdiction of the court.
(3) Affidavits relating status of defendant.--
(A) In general.--Except as provided in clauses (i) and (ii)
of subparagraph (B), the court shall consider a defendant to
be a biomaterials supplier who is not subject to an action
for harm to a claimant caused by an implant, other than an
action relating to liability for a violation of contractual
requirements or specifications described in subsection (d).
(B) Responses to motion to dismiss.--The court shall grant
a motion to dismiss any action that asserts liability of the
defendant under subsection (b) or (c) of section 5 on the
grounds that the defendant is not a manufacturer subject to
such subsection 5(b) or seller subject to subsection 5(c),
unless the claimant submits a valid affidavit that
demonstrates that--
(i) with respect to a motion to dismiss contending the
defendant is not a manufacturer, the defendant meets the
applicable requirements for liability as a manufacturer under
section 5(b); or
(ii) with respect to a motion to dismiss contending that
the defendant is not a seller, the defendant meets the
applicable requirements for liability as a seller under
section 5(c).
(4) Basis of ruling on motion to dismiss.--
(A) In general.--The court shall rule on a motion to
dismiss filed under subsection (a) solely on the basis of the
pleadings of the parties made pursuant to this section and
any affidavits submitted by the parties pursuant to this
section.
(B) Motion for summary judgment.--Notwithstanding any other
provision of law, if the court determines that the pleadings
and affidavits made by parties pursuant to this section raise
genuine issues as concerning material facts with respect to a
motion concerning contractual requirements and
specifications, the court may deem the motion to dismiss to
be a motion for summary judgment made pursuant to subsection
(d).
(d) Summary Judgment.--
(1) In general.--
(A) Basis for entry of judgment.--A biomaterials supplier
shall be entitled to entry of judgment without trial if the
court finds there is no genuine issue as concerning any
material fact for each applicable element set forth in
paragraphs (1) and (2) of section 5(d).
(B) Issues of material fact.--With respect to a finding
made under subparagraph (A), the court shall consider a
genuine issue of material fact to exist only if the evidence
submitted by claimant would be sufficient to allow a
reasonable jury to reach a verdict for the claimant if the
jury found the evidence to be credible.
(2) Discovery made prior to a ruling on a motion for
summary judgment.--If, under applicable rules, the court
permits discovery prior to a ruling on a motion for summary
judgment made pursuant to this subsection, such discovery
shall be limited solely to establishing whether a genuine
issue of material fact exists.
(3) Discovery with respect to a biomaterials supplier.--A
biomaterials supplier shall be subject to discovery in
connection with a motion seeking dismissal or summary
judgment on the basis of the inapplicability of section 5(d)
or the failure to establish the applicable elements of
section 5(d) solely to the extent permitted by the applicable
Federal or State rules for discovery against nonparties.
(e) Stay Pending Petition for Declaration.--If a claimant
has filed a petition for a declaration pursuant to section
5(b) with respect to a defendant, and the Secretary has not
issued a final decision on the petition, the court shall stay
all proceedings with respect to that defendant until such
time as the Secretary has issued a final decision on the
petition.
(f) Manufacturer Conduct of Proceeding.--The manufacturer
of an implant that is the subject of an action covered under
this Act shall be permitted to file and conduct a proceeding
on any motion for summary judgment or dismissal filed by a
biomaterials supplier who is a defendant under this section
if the manufacturer and any other defendant in such action
enter into a valid and applicable contractual agreement under
which the manufacturer agrees to bear the cost of such
proceeding or to conduct such proceeding.
(g) Attorney Fees.--The court shall require the claimant to
compensate the biomaterials supplier (or a manufacturer
appearing in lieu of a supplier pursuant to subsection (f))
for attorney fees and costs, if--
(1) the claimant named or joined the biomaterials supplier;
and
(2) the court found the claim against the biomaterials
supplier to be without merit and frivolous.
SEC. 7. APPLICABILITY.
This Act shall apply to all civil actions covered under
this Act that are commenced on or after the date of enactment
of this Act, including any such action with respect to which
the harm asserted in the action or the conduct that caused
the harm occurred before the date of enactment of this
Act.
______
By Mr. WARNER (for himself and Mr. Robb):
S. 305. A bill to establish the Shenandoah Valley National
Battlefields and Commission in the Commonwealth of Virginia, and for
other purposes; to the Committee on Energy and Natural Resources.
the shenandoah valley national battlefields partnership act of 1995
Mr. WARNER. Mr. President, I am pleased to introduce
legislation, along with Senator Robb, to establish a new national park
in the Shenandoah Valley of Virginia.
This legislation mirrors my legislation from last year, S. 1033,
which passed the Senate by unanimous consent.
While our purpose is conventional--the preservation of treasured
historic resources, our approach is innovative--a cooperative
relationship between the National Park Service and private landowners
that combines a mix of Federal ownership through donation of lands and
protection of private property rights.
This new park will preserve and commemorate the strategic
significance of the Civil War battles in the valley which occurred from
1862 to 1864. The park will consist of 1,864 acres at 10 battlefields
in the valley at McDowell, Cross Keys, Port Republic, Second
Winchester, New Market, Fishers Hill, Toms Brook, Cedar Creek,
Kernstown, and Opequon.
The Shenandoah Valley National Battlefields Partnership Act is the
product of an indepth study by the National Park Service which was
authorized by the Congress in 1990. The Park Service conducted field
surveys of 15 battlefields in the valley and concluded in their
analysis that ``because of their size and unprotected status, the
battlefields of the Shenandoah Valley were its most important, most
neglected, and most threatened resource.''
Mr. President, throughout my service in this body, I have been
actively involved in the preservation of several Civil War battlefields
in Virginia. One of my first legislative initiatives was
[[Page S1857]] to sponsor legislation in 1980 to expand the boundaries
of the Manassas National Battlefield Park by 1,522 acres. While some
battlefield preservation efforts in Virginia have been accomplished by
a consensus of support from local governments, the preservation
community and the Federal Government, other efforts have involved a
great deal of acrimony.
I am pleased that the Senate will again give approval to my
legislation which represents a significant investment of time and
commitment by preservation groups, local governments, and many
dedicated residents in the valley.
Each party interested in fostering the protection of the Shenandoah
Valley battlefields has worked diligently since the Park Service study
began in 1990 to craft a consensus proposal that recognizes the limits
on the Federal Government's resources to acquire substantial acreage in
the valley and balances the needs of property owners and local
governments to provide for their economic future.
Mr. President, during the past 2 years that we have worked on gaining
national recognition for the Shenandoah Valley battlefields, I have
remained committed to this effort because of the steadfast support and
leadership by the many local citizens, property owners,
preservationists, and local officials in the valley. They have given
generously of their personal time to organize local meetings, testify
before Congress, and work with the Park Service to advance our
proposal.
I am especially grateful to Will Greene, formerly with the
Association for the Preservation of Civil War Sites; Jay Monahan and
Garland Hudgings, with the Stonewall Brigade Foundation; and many civic
leaders such as June Wilmot, with the Winchester-Frederick County
Economic Development Commission; Betsy Helm, with Historic Winchester
Foundation; Robert Watkins, with the Frederick County Planning
Commission, and Barbara Moore, with the Society of Port Republic
Preservationists.
Mr. President, these are but a few of the many persons who have
assumed the tremendous responsibility over the years to ensure that
these historic lands remain undisturbed for future generations. It is
no exaggeration to say that this legislation would not be possible
today without their firm resolve and passion to preserve these
battlefields.
With the passage of this legislation, they will no longer be
shouldering this effort alone, but will now have the Park Service as an
important partner.
While authorizing limited acquisition of 10 battlefields in the
valley, most of this land will be donated to the Park Service. The
central feature of this provision is to foster and encourage an
atmosphere of cooperation between the Federal Government, State and
local governments, property owners, and preservation groups.
We have been fortunate that the valley's predominantly agricultural
land uses have provided protection for these battlefields. Permanent
preservation, however, is in serious jeopardy as the rural landscape of
the valley declines. With the continued pace of growth in the northern
valley and the loss of agricultural lands, now is the time for the
Federal Government to become a full partner in the local and private
efforts to ensure that these lands remain protected for all Americans
to study and enjoy.
This bill embodies many of the preservation approaches examined in
the ``Study of Civil War Sites in the Shenandoah Valley of Virginia.''
I concur with the study's finding that ``* * * no single alternative is
best suited to these sites. A balance must be achieved between
preservation, the Valley lifestyle, and economic development * * *''.
In keeping with these recommendations, I believe this bill provides
the right balance for preserving these battlefields. With limited
Federal ownership, and a commission comprised of local representatives
and historians to recommend further additions for Federal stewardship
as well as cooperative arrangements with local governments and private
landowners, we are achieving the desired goal. It recognizes the rights
and responsibilities of local governments to utilize their planning
authorities to protect these areas. It gives the Federal Government
needed authorities to provide technical assistance on options to
protect these battlefields, to provide for visitor interpretation and
understanding, and most importantly, to accept lands by donation or
purchase only from willing sellers.
As the study proposes a mix of public funding and technical
assistance and acquisition of battlefield areas, our legislation
embodies these recommendations to foster a partnership between the
Federal Government, local governments, landowners and private
organizations.
Each will share the responsibility and will prosper from the benefits
that a national park designation brings to neighboring communities.
Now is the time for the Federal Government to come forward and
participate in the protection of these threatened resources.
Mr. President, there is no question about the historic value of these
properties. They have a high degree of integrity and continue to tell
an important story of the military strategy employed during the battles
of Thomas J. ``Stonewall'' Jackson's valley campaign of 1862 and the
battles comprising Union General Philip Sheridan's burning of the
Shenandoah Valley in 1864.
Approximately one-third of the recorded events of the Civil War
occurred in Virginia. Dyer's ``Compendium of the War of the Rebellion''
records 297 incidents of armed conflict in the Shenandoah Valley during
the Civil War: 6 battles, 18 engagements, 21 actions, and 252
skirmishes. The Shenandoah Valley was the richest agricultural region
in Virginia, providing provisions to the Confederate forces. In
addition, the Confederates used the Valley as a natural corridor for
invading or threatening invasion of the North, while the Union forces
realized the importance of denying the valley's use to the Confederacy.
Mr. President, surely, these events deserve a permanent place in
history, just as Manassas, Gettysburg, and Antietam.
One of the most brilliant and most studied military campaigns in
history is Stonewall Jackson's valley campaign of 1862. During that
campaign, Jackson's army of 17,000 men defeated three northern armies
with a combined strength of 33,000 men in a single month, winning five
battles: McDowell, Front Royal, Winchester, Cross Keys, and Port
Republic. Most importantly, Jackson's valley campaign created a
strategic diversion to draw strength from the Federal's advance on
Richmond. It was General Lee who unleashed Jackson in the valley
because he understood the importance of creating a diversion to keep
Union troops from moving toward Richmond.
Mr. President, I would like to share with my colleagues a brief
excerpt from the study which so eloquently describes the passion that
continues in the valley today:
Few regions in the United States have experienced the
horrors of systematic destruction, and the memories are still
close to the surface for many longtime Valley residents.
Family histories are filled with stories that relate to the
hardship of that time. It took a generation to repair the
savages of ``The Burning'' and another generation before life
in the Valley returned to its pre-war condition. There can be
found there today a fierce pride in ancestors who survived
the war and who struggled to rebuild all that was lost.
The history of the Civil War in the Shenandoah Valley bears
witness to the devastation and waste of warfare, but more
importantly, it underscores the irrepressible human will to
survive, to rebuild, to carry on. The historic events and the
human players of the Valley--heroic and tragic alike--have
contributed significantly to the texture of our American
cultural heritage.
Mr. President, I am confident that these battlefields will make a
very positive contribution to the Park Service preservation of this
tragic chapter in our American history. These lands are important to
our understanding of the events that occurred from 1862 to 1864 when
the momentum and tide of the Confederacy's struggle turned and the
Union forces began to take hold.
______
By Mr. DORGAN:
S. 306. A bill entitled the ``Television Violence Reduction Through
Parental Empowerment Act of 1995''; to the Committee on Commerce,
Science, and Transportation.
TELEVISION LEGISLATION
Mr. DORGAN. Mr. President, today I am introducing legislation
that would empower parents to deal with violence
[[Page S1858]] on television. Specifically, the Television Violence
Reductions Through Parental Empowerment Act would require that
television sets include a technical devise parents could use to block
out television programs that are, in their judgment, too violent for
their children.
This legislation is identical to legislation Representative Ed Markey
introduced in the House the previous Congress. I introduced this
legislation in the Senate last year as well. I am introducing this bill
again because I believe that we ought to consider this approach,
commonly known as the V-chip bill, in the current debate over how we
should address the problem of violence on television. In my judgment,
the V-chip idea is an important part of a legislative response to the
problem of violence on television.
I understand that the Electronics Industry Association is moving
forward on developing an industry standard that will incorporate the
ability to block programs based on a rating for violence into new
television sets. I endorse and applaud these efforts. This private
sector initiative is a very positive development. However, it remains
to be seen as to whether or not such efforts will accomplish the goal
of empowering parents to control television programs coming into their
homes. I intend to work with the industry in this effort and I want to
encourage the future of their efforts. Nevertheless, until such a
standard is in place and out common goals are accomplished, I still
believe that it is necessary to keep this legislation on the table.
There was a great deal of debate in the 103d Congress about
television violence. Unfortunately, that debate took place, to a large
extent, in congressional committees and no legislation was advanced. I
think the broadcast and cable industries, along with the EIA, have all
made significant efforts to address public and congressional concern
with TV violence. However, I still believe that some modest legislative
approach need to be considered.
I encourage my colleagues to support this legislation and in general
work with me to advance a solution to television violence that enables
the public and parents in particular to send a direct message to the
industry. Parents and the public, and not the Government nor the
industry, should have the ultimate say in what should and should not be
on television The V-chip bill is a means to give consumers another
tool.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 306
Be it enacted by the Senate and House of Representative of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Television Violence
Reduction Through Parental Empowerment Act of 1995''.
SEC. 2 FINDINGS.
The Congress finds the following:
(1) To the fullest extent possible, parents should be
empowered with the technology to choose
to block the display on their televisions of programs they
consider too violent for their children.
(2) Violence now touches the lives of American children
more than adults. From 1982 through 1984, teenagers were the
victims of 1,800,000 violent crimes, twice the annual rate of
the adult population over age 20. According to the American
Academy of Pediatrics, one of every 8 deaths among children
age 10-14 years old in 1990 was caused by a shooting. Among
teenagers and young adults, that figure rose to one of every
four deaths.
(3) Children watch an extensive amount of television. It is
estimated that a child watches approximately 22,000 hours of
television before finishing high school, almost twice the
amount of time spent in the classroom.
(4) The amount of violence on television has reached
epidemic levels. The American Psychological Association
estimates that the average child witnesses 8,000 murders and
100,000 acts of violence before finishing elementary school.
(5) Three Surgeon Generals, the National Institute of
Mental health, the Centers for Disease Control, the American
Medical Association, the American Academy of Pediatrics, and
the American Psychological Association have concurred for
nearly 20 years as to the deleterious effects of television
violence on children.
(6) Despite periodic television industry efforts to reduce
the amount of television violence, reductions in the level of
televised violence have never been long lasting.
(7) Parents who are working are unable to constantly
monitor the television viewing habits of their children.
Advanced television technologies such as channel compression
and digitization will allow the expansion of channel capacity
to levels even more unmanageable for parents who want to
protect their children from televised violence.
(8) The major broadcast networks and a large number of
cable channels have agreed to place parental advisories on
programs they consider to be too violent for children. These
parental advisories are of limited use to parents if they are
not watching television with their children.
(9) The technology currently exists to equip television
sets at a nominal cost to permit parents to block the display
of television programs they consider too violent for
children. However, this technology will only be effective (A)
if all television programmers send any adopted rating or
warning system electronically with the program signal, and
(B) parents are able to block the display not only of
individual programs but to block out automatically and
simultaneously all programs with such rating.
(10) Congress calls upon the broadcast networks,
independent television stations, cable programmers, and
satellite programmers to protect the parental right to guide
the television viewing habits of children by sending any
adopted rating or warning system electronically with the
program signal.
SEC. 3. EQUIP TELEVISIONS TO BLOCK PROGRAMS.
Section 303 of the Communications Act of 1934 (47 U.S.C.
303) is amended by adding at the end thereof the following:
``(v) Require that (1) apparatus designed to receive
television signals be equipped with circuitry designed to
enable viewers to block the display of channels, programs,
and time slots; and (2) such apparatus enable viewers to
block display of all programs with a common rating. The
requirements of this subsection shall apply when such
apparatus is manufactured in the United States or imported
for use in the United States, and its television picture
screen is 13 inches or greater in size, measured
diagonally.''.
SEC. 4. SHIPPING OR IMPORTING.
(A) Regulations.--Section 330 of the Communications Act of
1934 (47 U.S.C. 330) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by adding after subsection (b) the following new
section:
``(c) No person shall ship in interstate commerce,
manufacture, assemble, or import from any foreign country
into the United States any apparatus described in section
303(v) of this Act except in accordance with rules prescribed
by the Commission pursuant to the authority granted by that
section. Such rules shall provide performance standards for
such blocking technology. Such rules shall further require
that all such apparatus be able to receive the rating signals
which have been transmitted by way of line 21 of the vertical
blanking interval and which conform to the signal and
blocking specifications established by the Commission. As new
video technology is developed, the Commission shall take such
action as the Commission determines appropriate to ensure
that blocking service continues to be available to consumers.
This subsection shall not apply to carriers transporting such
apparatus without trading it.''.
(b) Conforming Amendment.--Section 330(d) of such Act, as
redesignated by this Act, is amended by striking ``section
303(s), and section 303(u)'' and inserting in lieu thereof
``and section 303(s), 303(u), and 303(v)''.
SEC. 5. EFFECTIVE DATE.
The amendments made by sections 3 and 4 of this Act shall
take effect one year after enactment of this Act.
SEC. 6. RULES.
The Federal Communications Commission, shall promulgate
rules to implement the amendments made by this Act within 180
days after the date of its enactment.
______
By Mr. LEAHY:
S. 307. A bill to require the Secretary of the Treasury to design and
issue new counterfeit-resistant $100 currency; to the Committee on
Banking, Housing, and Urban Affairs.
the counterfeiting and money laundering deterrence act of 1995
Mr. LEAHY. Mr. President, I rise today to introduce the
Counterfeiting and Money Laundering Deterrence Act of 1995.
Counterfeit money is the cheap way for terrorists to fund their
activities around the world. The opening of the trial in New York of
the accused terrorists, who allegedly threatened to blow up the United
Nations, FBI Headquarters, and other sites, serves as a reminder that
our Nation is not immune to such activities. This bill outlines steps
we should take to combat both the counterfeiting of our currency and
the laundering of the estimated $300 billion per year of ill-gotten
profits from drugs, arms smuggling, and other crimes.
[[Page S1859]] This legislation, which Senator Kerry and I also
introduced in the last Congress, would accomplish two objectives:
First, it would bring our $100 currency up to date and stop letting
counterfeiters have a free meal ticket. Second, it would put the
squeeze on drug trafficking organizations that have to launder vast
sums of money to operate--making their costs of doing business
significantly higher and hopefully turning piles of their money into
worthless paper.
counterfeiting deterrence
The currency of this country faces a serious challenge from new
technologies that enable counterfeiters to turn out excellent
reproductions. According to the Secret Service, overseas counterfeiting
of U.S. currency has increased dramatically. For example, from 1992 to
1993, counterfeit currency detected abroad increased 300 percent.
A number of analysts believe the threat to the U.S. currency is
urgent. News reports say that intelligence experts in the United States
and Israel are aware of a highly skilled group of counterfeiters
operating out of Lebanon's Bekaa Valley. These counterfeiters,
controlled by Syria and Iran, have turned out as much as $1 billion of
extremely high-quality reproductions of the United States $100 bill.
We must be very concerned with what nations like Iran or Syria can do
with $1 billion in bogus United States currency so convincing that it
can be passed onto the international market. Would these poor countries
use this money to purchase sophisticated weaponry that challenges the
security of the region or of this country? Would they use this currency
in an effort to destabilize U.S. currency? Would they use it to fund
smaller scale but still serious terrorist activities throughout the
world? No one knows.
The opening of the Russian Republics and the Eastern Bloc has also
resulted in increased counterfeiting activity. Because the situation is
changing in this part of the world so fast, it is difficult to
determine the amount of counterfeiting that occurs there. According to
the chief of the Russian Interior Ministry's Department of Economic
Crimes, the amount of counterfeit United States currency confiscated by
Russian authorities increased 10 times from 1992 to 1993. With
organized crime increasingly taking hold in the Republics,
counterfeiting has become a national cottage industry according to
Moscow news reports. Because of mounting inflation of the ruble,
foreign currency such as the U.S. $100 bill has a special place in that
country's economic system, making it particularly attractive to
counterfeiting.
What makes this situation all the more pressing is that the U.S.
currency is among the most easy to counterfeit in the world. Although
recently updated with a deterrent polyester strip, our bills do not use
the watermarks or sophisticated dying and engraving techniques that
other countries employ to make it difficult to reproduce their bills
convincingly. Nor do we change the appearance of our currency from
time-to-time to discourage counterfeiters as other countries do.
To address this threat, this legislation requires the Secretary of
the Treasury to design a new $100 bill that incorporates some of the
counterfeit-resistant features that other countries have adopted. The
Treasury Department has already done substantial design work on a new
$100 bill, and it is the intention of this legislation to permit the
Secretary to draw on that work in meeting the requirements of the act.
money laundering deterrence
But aside from bringing our currency into modern times to address
state-of-the-art counterfeiting technology, this legislation is
designed to put a full court press on money laundering. We need to
realize that the international drug industry is a multibillion-dollar,
highly sophisticated enterprise. A single undercover operation in which
Federal agents operated a fake bank to launder money recently netted
$52 million in cash and assets. If we are really going to stop
international drug trafficking and terrorist activities, we need to
focus more on stopping the ease with which those organizations move
their money internationally to finance their crimes.
My bill strikes two blows against money launderers. First, the bill
requires all existing $100 denomination U.S. currency to be exchanged
within a 6-month period. This would make drug traffickers who hoard
vast amounts of hard currency hard-pressed to convert their existing
cash into the new money. If they cannot convert the money within the
specified time frame, their funds become worthless under the bill. Even
if drug organizations could somehow convert their money within the
exchange period, the likelihood of their being traced by currency
transaction reporting increases substantially, as does the cost of
laundering their ill-gotten gains. Of course, there is an exception for
hardship cases in the bill where money has not been derived from
unlawful activity.
Second, the bill establishes two new versions of the $100 bill: One
for use at home and one for use abroad. The only business that relies
on exporting large amounts of hard currency is drug trafficking. This
provision would make money smuggled out of the United States worthless,
turning the tables on drug traffickers who covertly move money from the
streets of this country to foreign banks who launder it without
reporting illicit transactions to the Treasury.
A U.S. citizen traveling abroad who wished to bring $100 currency
with him would hardly be inconvenienced by this measure: A quick stop
at a U.S. bank to convert their greenbacks into differently colored
foreign-use bills would be all that is necessary--just like purchasing
travelers' checks. The only ones inconvenienced would be drug
traffickers who would hate to exchange their greenbacks for foreign-use
currency at a U.S. bank because of currency transaction reporting
requirements.
To the extent drug traffickers cannot exchange their $100 bills
within the timeframe and they become worthless, this is a debt against
the U.S. Treasury that can be written off to finance the costs of this
legislation, and further, to pay off other obligations of the U.S.
Treasury.
let's begin a discussion on these issues
I know there will be opposition from some quarters to this proposal.
The Federal Reserve likes the current situation and believes the good-
old, easily copied $100 bill provides welcome stability to the
international monetary system. The banks feel burdened by the currency
transaction reporting requirements. Adding new counterfeit-resistant
features to bills is not costless. The Drug Enforcement Administration
supports the concept but some there would prefer to go further and
establish domestic and foreign use versions of all our currency.
Let us begin a serious discussion and debate on the steps we should
take to address high-technology counterfeiting and money laundering. If
this proposal is not the best way to go, then let's work to fashion a
measure that will take strong steps against these threats. I am not
comfortable with the current situation: We face the threat of
potentially billions of passable counterfeit U.S. dollars going into
the hands of terrorists. We must do more to cripple the big business of
drug trafficking. Continuing to put our collective heads in the sand
will not suffice. I encourage my colleagues and the relevant agencies
and others with expertise in these areas to consider and take the steps
necessary to address these important issues.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Summary of the Counterfeiting and Money Laundering Deterrence Act of
1995
Section 1. The short title of the bill is the
``Counterfeiting and Money Laundering Deterrence Act of
1995.''
Section 2. Findings and Purposes. Congressional findings
are summarized and the purposes of the bill to combat
counterfeiting and money laundering are described.
Section 3. Counterfeit-Resistant $100 Denomination
Currency.
The bill amends Title 31, United States Code, with new
section 5123 to require the Secretary of the Treasury, in
consultation with the Attorney General and the Administrator
of the Drug Enforcement Administration, to design and
designate new counterfeit-resistant $100 bills for domestic
and foreign use within 6 months of enactment.
The new bills must have counterfeit-deterring features such
as watermarks, multi-colored dyes, holograms, sophisticated
engraving techniques etc.
[[Page S1860]] The domestic use bills would be legal tender
only in the U.S.; the foreign use bills would be legal tender
abroad only. The two types of money could be exchanged at
banks subject to U.S. currency transaction reporting
requirements only. The domestic use bills have distinctly
different coloring from the foreign use bills. This means
money smuggled out of the country to be laundered at offshore
banks that do not engage in currency transaction reporting
would be worthless.
A 6-month currency exchange period would begin one year
from the date of enactment. Old $100 bills must be exchanged
for new domestic or foreign use $100 bills within this 6-
month period, or they become worthless. The bill includes a
process for extending the exchange period for hardship cases.
The currency exchange must occur at banks regulated by U.S.
currency transaction reporting and anti-money laundering laws
or at foreign banks that the Secretary of the Treasury finds
by treaty or agreement abide by currency transaction
reporting laws.
The Act would be financed by using credits obtained from
extinguishing the Treasury's liability for $100 bills not
exchanged within the exchange period. Additional credits so
generated would be returned to the general fund.
Section 4. Notice of Currency Exchange Period. The
Secretary must begin notifying foreign and domestic
governments and financial institutions of the upcoming
exchange period within 6 months of enactment.
______
By Mr. SIMPSON (for himself, Mr. Rockefeller, Mr. Thurmond, Mr.
Murkowski, Mr. Jeffords, Mr. Craig, Mr. Graham, and Mr. Akaka):
S.J. Res. 26. A joint resolution designating April 9, 1995, and April
9, 1996, as ``National Former Prisoner of War Recognition Day''; to the
Committee on the Judiciary.
the national former prisoner of war recognition day
Mr. SIMPSON. Mr. President, I am pleased to join with my good
friend and predecessor as chairman of the Committee on Veterans
Affairs, Senator Rockefeller, in introducing a Joint resolution which
would recognize the service and dedication of America's former
prisoners of war [POW's]. The Joint resolution would designate April 9,
1995, and April 9, 1996, as ``National Former Prisoner of War
Recognition day.'' April 9 is the anniversary of the fall of Bataan in
1942. On that day more Americans became POW's than any other day in our
history.
Every American who dons the uniform of our country makes a unique
commitment of service and duty to our country and to our fellow
citizens. Many factors, some as random as fate itself, determine how
that commitment will be realized. For some, military service may be
little more than an office job here in the United States. For others,
military service can combine bitter privation with the agony of combat.
Perhaps no American veterans have been called upon to honor their
commitment to our country under circumstances more difficult than those
endured by our former POW's.
Former prisoners of war have seen combat. By definition they were
close enough to the enemy to be captured; frequently after being
wounded, shot down, or sunk by enemy action. But for them, the war
didn't end when they were taken by the enemy, it was just beginning. At
the worst, their experience was one of malnutrition, torture, and
nonexistent medical care, combined with the burden of watching comrades
die as fellow slave laborers while working under conditions that would
make the worst villain of a Dickens novel look like a philanthropist.
Even under the best possible conditions, the POW experience places
American service members in the position of being dependent upon our
nation's enemies for every scrap of food, every bandage, every human
need. In such circumstances, the reward for treason, or even
cooperation, is high. The penalty for resistance and loyalty is
immediate, frequently painful and sometimes fatal. This resolution
recognizes the sacrifice and loyalty of the POW's who maintained their
commitment of service to our country. In so doing, it helps fulfill the
duty we have to former POW's. A duty derived from the faithful
discharge of their duty to us.
Mr. President, in this century 142,257 American servicemembers have
become POW's. For over 17,000 of them, the experience was fatal. They
died while in the hands of our enemies. Of the 125,202 who returned to
our shores, only about 62,000 remain alive today.
This Joint resolution commemorates the service of former POW's who
sustained their commitment to our country under circumstances that few
of us can imagine, and none would willingly endure. I ask this body to
honor the memory of those who have already died; I urge the Senate to
express its gratitude to those still alive; and I call upon my
colleagues to join with Senator Rockefeller, members of the committee
on Veterans' Affairs, and myself in sponsoring this Joint
resolution.
____________________