[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.


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