[Congressional Record Volume 141, Number 26 (Thursday, February 9, 1995)]
[Senate]
[Pages S2399-S2420]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. McCAIN (for himself and Mr. Inouye:)
S. 377. A bill to amend a provision of part A of title IX of the
Elementary and Secondary Education Act of 1965, relating to Indian
education, to provide a technical amendment, and for other purposes; to
the Committee on Indian Affairs.
the indian education title technical correction act of 1995
Mr. McCAIN. Mr. President, I introduce a bill to make a
technical correction to the Indian title in the Improving America's
Schools Act. I am pleased that Senator Daniel Inouye, vice chairman of
the Committee on Indian Affairs, has joined me as a cosponsor of this
measure.
The technical corrections bill would correct a minor oversight in
language which could have major ramifications in the education of
American Indian and Alaska Native children. The law currently states
that in order for a school to be eligible for an Indian Education Act
formula grant, it must have 10 eligible students and have 25 percent of
its student population eligible for the program. This language
unnecessarily restricts a schools eligibility for grant funding by
requiring schools to meet both criteria. I have been informed that the
intent of the conferees was to include the word ``or'' rather than
``and'' thereby creating the potential for American Indians and Alaska
Natives to have a greater opportunity to benefit from the Improving
America's Schools Act. This amendment is intended to correct this
oversight and fulfill the true intent of the act, to improve schools
for all Americans, including Indians and Alaska Natives.
Mr. President, time is of the essence with regard to this
legislation. I understand that the Department of Education is currently
drafting regulations to implement the new provisions of the Indian
Education Act. Unless this technical oversight is not immediately
fixed, the existing language will result in the disqualification of
many schools serving American Indians and Alaska Natives through the
promulgation of regulation which do not accurately reflect the intent
of Congress. Therefore, I hope that the Senate will act quickly on this
amendment in order to prevent unnecessary hardships for the many
American Indian and Alaska Native students which stand to benefit from
this act.
I ask unanimous consent that the full 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. 377
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TECHNICAL AMENDMENT.
Section 9112(a)(1)(A) of the Elementary and Secondary
Education Act of 1965 (as added by section 101 of the
Improving America's Schools Act of 1994 (Public Law 103-382))
is amended by striking ``and'' and inserting ``or''.
Mr. INOUYE. Mr. President, even though technical correction
bills are ordinarily not drafted until late each session of Congress, I
cosponsor a bill, introduced by the chairman of the Committee on Indian
Affairs, Senator John McCain of Arizona, to make a one word technical
correction to the Indian title in the Improving America's Schools Act.
I do so because the Department of Education is now drafting regulations
to implement new provisions of the Indian Education Act, and unless
corrected promptly, the program for Indian children will be limited in
ways that the 103d Congress did not intend.
Let me provide a context for the technical correction to Public Law
103-382 that would be accomplished by enactment of this bill. Among
other things, the Indian Education Act provides for formula grants to
schools to enable them to operate small supplemental programs for
Indian children. In its version of the reauthorization, the House of
Representatives would have required that a school have 20 Indian
children or that the Indian children make up 25 percent of the student
body of the school. The Senate, on the other hand, would have required
a minimum of 10 children or that they make up 25 percent of the student
body of the
[[Page S2400]] school. Conferees agreed upon the Senate version: 10
students or 25 percent of the school's enrollment.
Mr. President, the issue before the conferees was only whether a
minimum of 10 or 20 Indian children would be required for eligibility.
The conjunction ``or'' was not ever an issue, and that it was not is
testified to by the side-by-sides prepared for the Senate and House
conferees. But, the final document prepared by the Senate Legislative
Counsel substituted the word ``and'' for ``or.'' And that final
document was enacted into law.
What this bill would do is correct the technical error. I have
consulted conferees and their notes verify that the word ``or'' was in
both House and Senate versions of the bill. The effect of the bill I am
introducing would be to restore language intended by both the House and
Senate.
Mr. President, if this bill should not be enacted, hundreds of
classrooms with Indian children would lose the supplemental programs,
all because of a drafting error. In reauthorizing the Indian Education
Act, this was emphatically not the result intended by the Congress, and
I hope that I may count on my colleagues to support enactment of this
technical corrections bill.
______
By Mr. GORTON (for himself and Mrs. Murray):
S. 378. A bill to authorize the Secretary of the Interior to exchange
certain lands of the Columbia Basin Federal reclamation project,
Washington, and for other purposes; to the Committee on Energy and
Natural Resources.
THE BOISE CASCADE LAND EXCHANGE ACT OF 1995
Mr. GORTON. Mr. President, today, together with Senator
Murray, I introduce a bill to authorize a land exchange between the
Bureau of Reclamation and the Boise Cascade Corp. Unfortunately for its
proponents, this legislation has been introduced during both the 102d
and 103d Congress. This year, Senator Murray and I will work to pass
this legislation and finally get it signed into law.
Boise Cascade's plywood and sawmill operations in Kettle Falls, WA
are adjacent to 26 acres of land owned by the Bureau of Reclamation.
The Bureau land provides a buffer between scenic Lake Roosevelt and
Boise Cascade's operations. The National Park Service, which manages
the Bureau's land, historically has issued a special-use permit
allowing Boise Cascade to operate along the edge of the land. However,
the Park Service has indicated that it may not reissue the permit when
it expires in 1995, and has stated conclusively that the permit will
not be reissued upon expiration in 2000. Consequently, passage of this
legislation this year is crucial.
Without a special use permit, Boise Cascade would not be able to
continue its operations at Kettle Falls. Thus, 350 mill jobs would be
lost and the community would be devastated. To prevent such a
catastrophe, Boise Cascade has proposed exchanging 138 acres of land it
owns for 6 of the 26 acres it needs to continue operating. The 138
acres is primarily wildlife habitat located along Lake Roosevelt and
the Colville River, and would be conveyed to the Bureau of Reclamation
upon passage of this legislation.
This land exchange is supported by the Bureau of Reclamation, the
Park Service, and Boise Cascade. In addition, a local citizen's group
concerned with Columbia River water quality issues has negotiated a
series of mitigation measures with Boise Cascade, and has given its
full support to the land exchange.
Mr. President, this exchange make good sense and will avoid a
potentially severe problem. Last year the Energy Committee reported out
of committee the exact legislation that I am introducing today. I urge
the committee to promptly review this legislation, and I will work with
them on this issue. I thank my colleagues for their
consideration.
Mrs. MURRAY. Mr. President, I want to say a few words about an
important bill for Washington State. Today, I join my colleague, the
senior Senator from Washington [Mr. Gorton] introducing legislation to
authorize a land exchange between Boise Cascade Corp. and the Bureau of
Reclamation.
Boise Cascade operates a sawmill adjacent to the Lake Roosevelt
National Recreation Area near Kettle Falls, WA. The land located
between the mill and the lake is owned by the Bureau of Reclamation.
However, it is managed by the National Park Service under its authority
over the Lake Roosevelt unit. Unfortunately, the proximity of the mill
to the recreation area has led to concerns within the Park Service
about potential effects of Boise operation on the public.
Mr. President, Boise Cascade has been a stellar corporate citizen in
this area. The company has absolutely no desire to adversely affect the
recreation area. In fact, given their druthers, they'd like to enhance
the area. That's why this bill is so important.
If we enact this bill, we will ensure Boise's ability to continue its
mill operation. In addition, we will add significant benefit to Lake
Roosevelt. That's because this bill seeks to implement a land exchange
that will add 132 acres to the national recreation area. Here's how it
works: Boise Cascade owns 138 acres along the lake near the Colville
River. This land provides excellent wildlife forage habitat. The Bureau
owns 26 acres between the mill and the lake. In exchange for 6 of these
acres, Boise will deed its 138 to the Government for incorporation into
the recreation area.
Mr. President, this is a great deal for the taxpayers and the
citizens of Kettle Falls: 138 acres for just 6. There are 350 jobs at
the Boise mill. Needless to say, it's the major employer in that area.
The terms of this exchange have been mutually agreed to by the
agencies, the company, the local citizens, and conservation groups
concerned with protecting the lake. It's good for the community, and
it's good for the resource. I hope all my colleagues will recognize
this, and support our efforts to move the bill toward passage.
______
By Mr. FEINGOLD (for himself and Mr. Simon):
S. 380. A bill to provide for public access to information regarding
the availability of insurance, and for other purposes; to the Committee
on Banking, Housing, and Urban Affairs.
THE ANTI-REDLINING IN INSURANCE DISCLOSURE ACT OF 1995
Mr. FEINGOLD. Mr. President, today I am pleased to reintroduce
legislation that I originally introduced in the Senate last year, the
Anti-Redlining in Insurance Disclosure Act of 1995. Although the House
of Representatives was able to pass a more limited disclosure bill
during the 103d Congress, I was disappointed that the Senate was unable
to address what I see as not only a critically important civil rights
issue, but also an issue essential to any hopes of revitalizing the
struggling economies of our inner cities.
In recent years, this Nation has made tremendous strides in fighting
various forms of discrimination, particularly in terms of employment
and educational opportunities. Unfortunately, the progress we have made
in combating these forms of discrimination has not lessened the need to
exercise the same level of persistence in extinguishing equally
offensive, less subtle forms of racism and bigotry.
The term redlining actually evolved from the practice of particular
individuals in the banking industry using maps with red lines drawn
around certain neighborhoods. These individuals would then instruct
their loan officers to avoid offering their financial services to
residents of these redlined neighborhoods. These red lines typically
encircled low-income and minority communities, resulting in the
unavailability of the financial services necessary to purchase a home,
a business, or an automobile. But even as Congress identified and moved
to curb these discriminatory practices in the banking industry, a
disturbing and growing level of discrimination was emerging from the
insurance industry that would continue to deny certain individuals the
opportunity to own their own home or start a small business.
Home ownership is an aspiration that transcends the artificial
boundaries of race and income in America. As anyone who has secured
their first home loan can attest, there is an extraordinary feeling of
prestige and sense of self-worth that accompanies home ownership. But
for those individuals that reside in the economically depressed inner-
city neighborhoods of Milwaukee, Chicago, and other such cities, these
feelings of pride and accomplishment are even further intensified. It
is
[[Page S2401]] tragic that redlining practices exist, and unless the
Federal Government takes forceful action we will continue to send the
wrong message to those who seek to stabilize and stimulate these inner-
city economies. We must expose and eliminate these appalling redlining
practices that prevent hard-working, fully qualified individuals from
pursuing their dream, and their right, to obtain a home or business
loan.
Though it may seem obvious to some, we must recognize that any
serious effort to rebuild the economies of these inner-city communities
must have minority home and small business ownership as their
cornerstones. There are many well-motivated individuals in these
communities that are committed to economic revitalization--whether it
is purchasing a home for their family or starting a small business and
creating jobs. It is heartening that there are both Democrats and
Republicans, conservatives and liberals who recognize the need to
revitalize our inner cities, and yet it seems fruitless to discuss
ideas such as enterprise zones and community development block grants
without addressing a glaring problem that prevents an otherwise
qualified individual from owning their own home or business.
Several years ago Congress reacted to reports and studies that an
element of the financial services industry was preventing residents of
minority and low-income communities from obtaining home loans. In
response, Congress passed the Home Mortgage Disclosure Act [HMDA] which
required banks and thrifts to report their lending practices using a
set level of criteria. This legislation, which contrary to dire
predictions has had a nominal impact on the vitality and prosperity of
the lending industry, has provided Federal and State regulators in the
mortgage financing field with detailed information to identify mortgage
redlining. This critical piece of legislation was passed for precisely
the reason of enhancing the power of State and Federal authorities to
determine if banks and other lending institutions were discriminating
in their lending practices. But as effective as disclosure requirements
have been in exposing these abuses in the banking industry, it is
clearly not enough.
Property insurance, as we all know, is almost a prerequisite to
obtaining a home loan. This was best illustrated by Judge Frank
Easterbrook of the U.S. Seventh Circuit Court of Appeals in that
court's ruling that redlining practices are illegal and a violation of
the Fair Housing Act. Speaking for a unanimous court, Judge Easterbrook
observed that ``lenders require their borrowers to secure property
insurance. No insurance, no loan; no loan, no house; lack of insurance
thus makes housing unavailable.'' Judge Easterbrook's remarks
underscore the need to place people of all racial and ethnic
backgrounds on a level playing field when it comes to the opportunity
to purchase insurance. In short, denying an individual access to
affordable and adequate property insurance is essentially denying that
individual access to home ownership.
The key question, of course, is do redlining practices exist?
Countless new reports and studies indicate that there is a prevalent
and growing level of discriminatory underwriting in the insurance
industry. Studies such as the 1979 report of the Illinois, Indiana,
Michigan, Minnesota, Ohio, and Wisconsin Advisory Committees to the
U.S. Commission on Civil Rights and
the recent study on home insurance in 14 cities released by the
community advocacy group ACORN have pointed out that insurance
redlining practices are widespread in America. These reports highlight
the fallacies in the contention that lack of adequate insurance in many
of these communities is due to economics and statistically based risk
assessment. In addition, there is substantial anecdotal evidence that
suggests individuals residing in minority and low-income communities
are systematically denied affordable or adequate homeowners insurance.
I was shocked and outraged when I first saw the extensive media
reports of the statements made by a district sales manager of a large
insurance company which serves the city of Milwaukee. The sales manager
was recorded saying to his insurance agents:
Very honestly, I think you write too many blacks * * *. You
gotta sell good, solid, premium paying white people * * *.
They own their homes, the white works * * *. Very honestly,
black people will buy anything that looks good right now * *
* but when it comes to pay for it next time * * * you're not
going to get your money out of them * * *. The only way
you're going to correct your persistency is get away from
blacks.
This policy of denying affordable insurance to minorities was also
illustrated when the manager showed one agent how to accomplish this
goal by stating that
* * * if a black wants insurance, you don't have to say,
just tell them, because based on this kind of policy, the
company will only allow me to accept an annual premium. Do it
that way.
Mr. President, Milwaukee, WI is truly a wonderful city. It has
midwestern charm, a strong work ethic and like many other of our
Nation's urban communities, a large inner-city population that is
struggling to become economically vibrant and prosperous. But what
redlining practices do is deny those who are playing by the rules the
opportunity to own their own home or business. Again, there are those
who will assert that insurance is less available in these areas because
of risk-assessment and other economic principles. But according to a
study by the Missouri insurance department, data comparing low-income
minority areas with low-income white areas in St. Louis and Kansas City
showed that low-income minorities on average paid higher premiums for
homeowners insurance than white homeowners of similar means for
comparable coverage. On top of this, actual losses were lower in the
minority areas. Clearly the problem of discrimination exists and is
widespread. The question now is what can we do about it.
Redlining practices are illegal. This was established by Judge
Easterbrook and the Seventh Circuit Court of Appeals in NAACP versus
American Family Insurance, when the court ruled that the Fair Housing
Act also applies to the underwriting of homeowners insurance. The
problem is with the inability of some regulators
and the unwillingness of others to enforce the law. In powerful
testimony before several congressional committees, it has been stated
over and over that to enforce the law greater disclosure of crucial
information is needed from the insurance industry. Assistant Secretary
Roberta Achtenberg, head of the Department of Housing and Urban
Development's Division of Fair Housing and Equal Opportunity testified
to this, as did Deval Patrick, assistant attorney general for civil
rights. It was also expressed by numerous State insurance commissioners
including those from Texas, California, and Missouri, as well as
several civil rights and community groups.
As clear as the problem of insurance redlining has become, so has the
solution. Public disclosure can serve multiple purposes in combating
insurance discrimination by allowing for an accurate assessment of the
extent and nature of the problem, as well as assisting Federal and
State regulators who are charged with enforcing the antidiscrimination
laws that currently exist. The Home Mortgage Disclosure Act has been
effective, but passing disclosure laws that only apply to banks and
thrifts is like throwing out a life preserver with rope that is several
feet short. We must go further, and pursue disclosure regulations that
will provide Federal and State insurance regulators the same tools that
Federal and State banking regulators have, and allow them to detect and
expose any incidence of discrimination in the availability of
homeowners insurance.
The bill I am introducing today, the Anti-Redlining in Insurance
Disclosure Act, would require insurance companies to disclose
information regarding where they write property insurance and is
closely patterned after the requirements in the Home Mortgage
Disclosure Act. The bill would require the Secretary of Housing and
Urban Development to establish requirements for insurers to compile and
submit policy information annually. The information that the bill
requires to be disclosed must be reported along census tract lines, and
must include the number and types of policies written, the race of the
applicants, whether the applicant was accepted or rejected and the loss
data for the specified area. This information would be collected in the
50 largest metropolitan statistical areas
[[Page S2402]] [MSA's] and an additional 100 MSA's based on geographic
diversity and size of MSA populations. These disclosure requirements
are almost identical to those recommended by the General Accounting
Office in their investigation of this issue last year. Providing this
extensive and detailed information will enable regulators to analyze
and compare the availability, affordability, and quality of insurance
coverage for property, casualty, and homeowners insurance.
Insurance redlining is a national phenomena that demands a Federal
response. In the insurance industry, enforcement by State officials of
existing antidiscrimination statutes has proven to be difficult for one
principal reason; though many
State insurance commissioners have been forceful and aggressive in
exposing and sanctioning appropriate parties, other State insurance
commissioner offices lack the necessary resources to collect and
compile data information adequately. In many markets this data is
simply unavailable. And critical to this effort is the need to collect
claims and other loss data which is central to determining if the
unavailability of adequate and affordable insurance is due to sound
economic underwriting principles, or to reprehensible factors such as
the race and ethnic background of the applicant.
Last year, the efforts of Representatives Cardiss Collins, and Joseph
Kennedy resulted in the House of Representatives passing a disclosure
bill similar to the bill I have introduced today. My colleague from
Wisconsin, Representative Tom Barrett, has also been actively involved
with the insurance redlining issue. Just last year, Representative
Barrett chaired a field hearing in Milwaukee where first-hand testimony
was given about the extent of these discrimination abuses in Milwaukee
and other cities plagued by similar problems.
In addition, it is my understanding that due to the leadership of
Secretary Cisneros and Assistant Secretary Achtenberg, HUD is
considering the promulgation of disclosure requirements similar to the
reporting requirements in the bill I have introduced today. Although
some have suggested that HUD lacks the necessary authority to pass such
regulations, it is important to note that HUD has been identified by a
Federal court in Ohio as legally authorized to enforce the Fair Housing
Act as it relates to homeowners insurance. This was affirmed in
Nationwide Mutual Insurance Company versus Cisneros, when the U.S.
District Court upheld HUD's regulatory authority, noting that HUD's
contention that it had been delegated authority under the Fair Housing
Act was ``reasonable and entitled to substantial deference.'' I look
forward to monitoring the development of HUD's actions, and will
certainly lend my support and assistance to their efforts to curb
redlining practices.
Mr. President, Voltaire once said that ``Prejudices are what fools
use for reason.'' It is clearly one thing to underwrite insurance
policies based on sound economic factors and principles--it is another
thing to deny adequate or affordable insurance based on an individual's
race or ethnic background. We should be very proud of the civil rights
accomplishments our society has made in the last 30 years. But as many
potential homeowners in my State and across the country have
discovered, too many individuals in the insurance industry have used
their prejudices to determine the economic and social future of
communities that are on the brink of collapse. Passing this legislation
would represent marked progress in the pathway to offering all of our
citizens, regardless of racial or ethnic background, equal access to
social justice and economic opportunity.
I would like to conclude, Mr. President, by asking unanimous consent
that several items be printed in the Record. These items include the
text of the bill, a letter I received from several organizations
supporting the legislation, a letter that I, Senator Simon, and several
member of the House sent to Roberta Achtenberg, Assistant Secretary for
Fair Housing and Equal Opportunity as well as a response I received
from that Department, and finally, two editorials from the Houston Post
and the Dallas Morning News on the issue of insurance redlining.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 380
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Anti-
Redlining in Insurance Disclosure Act of 1995''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Establishment of general requirements to submit information.
Sec. 4. Reporting of noncommercial insurance information.
Sec. 5. Study of commercial insurance for residential properties and
small businesses.
Sec. 6. Reporting of rural insurance information.
Sec. 7. Waiver of reporting requirements.
Sec. 8. Reporting by private mortgage insurers.
Sec. 9. Use of data contractor and statistical agents.
Sec. 10. Submission of information to Secretary and maintenance of
information.
Sec. 11. Compilation of aggregate information.
Sec. 12. Availability and access system.
Sec. 13. Designations.
Sec. 14. Improved methods and reporting on basis of other areas.
Sec. 15. Annual reporting period.
Sec. 16. Disclosures by insurers to applicants and policyholders.
Sec. 17. Enforcement.
Sec. 18. Reports.
Sec. 19. Task force on agency appointments.
Sec. 20. Studies.
Sec. 21. Exemption and relation to State laws.
Sec. 22. Regulations.
Sec. 23. Definitions.
Sec. 24. Effective date.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) there are disparities in insurance coverage provided by
some insurers between areas of different incomes and racial
composition;
(2) such disparities in affordability and availability of
insurance severely limit the ability of qualified consumers
to obtain credit for home and business purchases; and
(3) the lack of affordable and adequate commercial
insurance for small businesses severely curtails the
establishment and growth of such businesses.
(b) Purposes.--The purposes of this Act are--
(1) to establish a nationwide database for determining the
availability, affordability, and adequacy of insurance
coverage for consumers and small businesses;
(2) to facilitate the enforcement of Federal and State laws
that prohibit illegally discriminatory insurance practices;
and
(3) to determine whether the extent and characteristics of
insurance availability, affordability, and coverage require
public officials to take any actions--
(A) to remedy redlining or other illegally or unfairly
discriminatory insurance practices; or
(B) regarding areas underserved by insurers.
(c) Construction.--Nothing in this Act is intended to, nor
shall it be construed to, encourage unsound underwriting
practices.
SEC. 3. ESTABLISHMENT OF GENERAL REQUIREMENTS TO SUBMIT
INFORMATION.
(a) In General.--The Secretary shall, by regulation,
establish requirements for insurers to compile and submit
information to the Secretary for each annual reporting
period, in accordance with this Act.
(b) Consultation.--In establishing the requirements for the
submission of information under this Act, the Secretary shall
consult with Federal agencies having appropriate expertise,
the National Association of Insurance Commissioners, State
insurance regulators, statistical agents, representatives of
small businesses, representatives of insurance agents
(including minority insurance agents), representatives of
property and casualty insurers, and community, consumer, and
civil rights organizations, as appropriate.
SEC. 4. REPORTING OF NONCOMMERCIAL INSURANCE INFORMATION.
(a) In General.--The requirements established pursuant to
section 3 to carry out this section shall--
(1) be designed to ensure that information is submitted and
compiled under this section as may be necessary to permit
analysis and comparison of--
(A) the availability and affordability of insurance
coverage and the quality or type of insurance coverage, by
MSA and the applicable region, race, and gender of
policyholders; and
(B) the location of the principal place of business of
insurance agents and the race of such agents, and the
location of the principal place of business of insurance
agents terminated and the race of such agents, by MSA and
applicable region; and
(2) specify the data elements required to be reported under
this section and require uniformity in the definitions of the
data elements.
[[Page S2403]] (b) Designated Insurers.--
(1) Aggregate information.--The regulations issued under
section 3 shall require that each designated insurer for a
designated line of insurance under section 13(c)(1) compile
and submit to the Secretary, for each annual reporting
period--
(A) the total number of policies issued in such line, total
exposures covered by such policies, and total amount of
premiums for such policies, by designated line and by
designated MSA and applicable region in which the insured
risk is located;
(B) the total number of cancellations and nonrenewals
(expressed in terms of policies or exposures, as determined
by the Secretary), by designated line and by designated MSA
and applicable region in which the insured risk is located;
(C) the total number and racial characteristics of--
(i) licensed agents of such insurer selling insurance in
the designated line, by designated MSA and applicable region
in which the agent's principal place of business is located;
and
(ii) such agents who were terminated by the insurer, by
designated MSA and applicable region in which the agent's
principal place of business was located; and
(D) for such designated line of insurance, information that
will enable the Secretary to assess the aggregate loss
experience for the insurer, by designated MSA and applicable
region in which the insured risk is located.
(2) Specification of information for itemized disclosure.--
(A) In general.--The regulations issued under section 3
regarding annual reporting requirements for designated
insurers for a designated line of insurance under section
13(c)(1) shall, with respect to policies issued under the
designated line or exposure units covered by such policies,
as determined by the Secretary--
(i) specify the data elements that shall be submitted;
(ii) provide for the submission of information on an
individual insurer basis;
(iii) provide for the submission of the information with
the least burden on insurers, particularly small insurers,
and insurance agents;
(iv) take into account existing statistical reporting
systems in the insurance industry;
(v) require reporting by MSA and applicable region in which
the insured risk is located;
(vi) provide for the submission of information that
identifies the designated line and subline or coverage type;
(vii) provide for the submission of information that
distinguishes policies written in a residual market from
policies written in the voluntary market;
(viii) specify--
(I) whether information shall be submitted on the basis of
policy or exposure unit; and
(II) whether information, when submitted, shall be
aggregated by like policyholders with like policies, except
that the Secretary shall not permit such aggregation if it
will adversely affect the accuracy of the information
reported;
(ix) provide for the submission of information regarding
the number of cancellations and nonrenewals of policies under
the designated line by MSA and applicable region in which the
insured risk is located, by race and gender of the
policyholder (if known to the insurer), and by whether the
policy was issued in a voluntary or residual market; and
(x) provide for the submission of information on the racial
characteristics and gender of policyholders at the level of
detail comparable to that required by the Home Mortgage
Disclosure Act of 1975 (and the regulations issued
thereunder).
(B) Rules regarding obtaining racial information.--With
respect to the information specified in subparagraph (A)(x),
applicants for, and policyholders of, insurance may be asked
their racial characteristics only in writing. Any such
written question shall clearly indicate that a response to
the question is voluntary on the part of the applicant or
policyholder, but encouraged, and that the information is
being requested by the Federal Government to monitor the
availability and affordability of insurance. If an applicant
for, or policyholder of, insurance declines to provide such
information, the agent or insurer for such insurance may
provide such information.
(3) Rule for reporting by designated insurers.--A
designated insurer for a designated line shall submit--
(A) information required under subparagraphs (A), (B), and
(D) of paragraph (1) and information required pursuant to
paragraph (2), for risks insured under such line that are
located within each designated MSA, any part of which is
located in a State for which the insurer is designated; and
(B) information required under paragraph (1)(C) for agents
within such designated MSA's.
(c) Nondesignated Insurers.--The regulations issued under
section 3 shall require each insurer that issues an insurance
policy in a designated line of insurance under section
13(c)(1) that covers an insured risk located in a designated
MSA and which is not a designated insurer for the line in any
State in which any part of such MSA is located, to compile
and submit to the Secretary, for each annual reporting
period--
(1) the total number of policies issued in such line;
(2) the total exposures covered by such policies; and
(3) the total amount of premiums for such policies;
by designated MSA and applicable region in which the insured
risk is located.
SEC. 5. STUDY OF COMMERCIAL INSURANCE FOR RESIDENTIAL
PROPERTIES AND SMALL BUSINESSES.
(a) In General.--The Secretary shall conduct a study to
determine the availability, affordability, and quality or
types of commercial insurance coverage for residential
properties and small businesses, in urban areas.
(b) Submission of Information.--To acquire information for
the study under this section, the Secretary shall, by
regulation, establish requirements for insurers providing
commercial insurance for residential properties and small
businesses to compile and submit to the Secretary on an
annual basis information regarding such insurance, as
follows:
(1) MSA's.--The Secretary shall carry out the study only
with respect to the 25 MSA's having the largest populations,
as determined by the Secretary and specified in the
regulations under this section.
(2) Insurers.--For each of the MSA's specified pursuant to
paragraph (1), the Secretary shall designate the insurers
required to submit the information. The Secretary shall
designate a sufficient number of insurers to provide a
representative sample of the insurers providing such
insurance in each such MSA.
(3) Lines of insurance.--The Secretary shall require the
submission of information regarding such lines, sublines, or
coverage types of commercial insurance as the Secretary
determines are necessary or important with respect to
establishing, operating, or maintaining residential
properties and each type of small business selected under
paragraph (4), and shall require submission of such
information by such lines, sublines, or coverage types.
(4) Small businesses.--For purposes of paragraph (3), the
Secretary shall determine the types of businesses that are
typical of small businesses and shall select a representative
sample of such types.
(5) Data elements.--The Secretary shall identify the data
elements required to be submitted.
(6) Submission by location.--The Secretary shall require
the information to be submitted by designated MSA and
applicable region in which the insured risk is located.
(7) Submission by insurer.--The Secretary shall require the
submission of information on an individual insurer basis and
shall specify whether information, when submitted, shall be
aggregated by like policies, except that the Secretary shall
not permit such aggregation if it will adversely affect the
accuracy of the information reported.
(8) Sunset.--The Secretary shall require the submission of
information under this section only for each of the first 5
annual reporting periods beginning more than 3 years after
the date of enactment of this Act.
(c) Considerations.--In establishing the requirements for
submission of information under this section, the Secretary
shall--
(1) take into consideration the administrative, paperwork,
and other burdens on insurers and insurance agents involved
in complying with the requirements of this section;
(2) minimize the burdens imposed by such requirements with
respect to such insurers and agents; and
(3) take into consideration existing statistical reporting
systems in the insurance industry.
(d) Report.--Not later than 6 months after the expiration
of the fifth of the 5 annual reporting periods referred to in
subsection (b)(8), the Secretary shall submit a report to the
Congress describing the information submitted under the study
conducted under this section and any findings of the
Secretary from the study regarding disparities in the
availability, affordability, and quality or types of
commercial insurance coverage for residential properties and
small businesses, in urban areas.
SEC. 6. REPORTING OF RURAL INSURANCE INFORMATION.
(a) In General.--The Secretary shall, by regulation,
establish requirements for insurers to annually compile and
submit to the Secretary information concerning the
availability, affordability, and quality or type of insurance
in designated rural areas in the lines designated under
section 13(c)(1).
(b) Content.--The regulations under this section shall
provide that--
(1) the information to be compiled and submitted under this
section by designated insurers and insurers that are not
designated insurers shall be of such types, data elements,
and specificity that is as identical as possible to the
types, data elements, and specificity of information required
under this Act of designated and nondesignated insurers,
respectively, for designated MSA's and shall be subject to
the provisions of section 4(b)(2)(B); and
(2) the information compiled and submitted under this
section shall be compiled and submitted on the basis of each
5-digit zip code in which the insured risks are located,
rather than on the basis of designated MSA and applicable
region (as otherwise required in this Act).
(c) Designation of Rural Areas.--For purposes of this
section, the term ``designated rural area'' means the
following:
(1) First 5 years.--With respect to the first 5 annual
reporting periods to which the reporting requirements under
this section
[[Page S2404]] apply, any of the 50 rural areas designated
by the Secretary and specified in regulations issued pursuant
to section 22, which shall not be amended or revised after
issuance. The Secretary shall (to the extent possible)
designate one rural area under this paragraph in each State
of the United States.
(2) After first 5 years.--With respect to annual reporting
periods thereafter, a rural area for which a designation made
by the Secretary under this paragraph is in effect, pursuant
to the following requirements:
(A) The designations shall be made for each of the
successive 5-year periods at the time provided in
subparagraph (C), and the first such period shall be the 5-
year period beginning upon the commencement of the sixth
annual reporting period to which the reporting requirements
under this Act apply.
(B) The Secretary shall designate 50 rural areas as
designated rural areas for each such 5-year period and shall
designate such rural areas based upon the information and
recommendations made in the report under section 18(b)
relating to the period.
(C) The Secretary shall make the designation of rural areas
for an ensuing 5-year period by regulations issued--
(i) not later than 12 months before the commencement of the
5-year period; and
(ii) not later than 6 months after the submission to the
Secretary of the report under section 18(b) relating to such
period.
(D) The designations of rural areas for a 5-year period
shall take effect upon the commencement of the first annual
reporting period of the 5-year period beginning not less than
12 months after the issuance of the regulations making such
designations, and shall remain in effect until the expiration
of the 5-year period.
Notwithstanding any other provision of this section, the
designation of a rural area shall remain in effect until a
succeeding designation of rural areas under paragraph (2)
takes effect.
SEC. 7. WAIVER OF REPORTING REQUIREMENTS.
(a) Waiver for States Collecting Equivalent Information.--
(1) Authority.--Subject to the requirements under this
section, the Secretary shall provide, by regulation, for the
waiver of the applicability of the provisions of sections 4,
5, and 6 for each insurer transacting business within a State
referred to in paragraph (2), but only with respect to
information required to be submitted under such sections that
relates to agents or insured risks located in the State.
(2) Requirements.--The Secretary may make a waiver pursuant
to paragraph (1) only with respect to a State that the
Secretary determines has in effect a law or other requirement
that--
(A) requires insurers to submit to the State information
that is the same as or equivalent to the information that is
required to be submitted to the Secretary pursuant to
sections 4, 5, and 6;
(B) provides for adequate enforcement of such law or other
requirements;
(C) provides for the same annual reporting period used by
the Secretary under this Act and for submission of the
information to the Secretary in a timely fashion, as
determined by the Secretary; and
(D) provides that, to the extent statistical agents are
permitted to submit information to the State on behalf of
insurers, such agents are subject to the same or equivalent
requirements as provided under section 9(b).
(3) Duration.--A waiver pursuant to paragraph (1) may
remain in effect only during the period for which the State
law or other requirement under paragraph (2) remains in
effect.
(b) Multiple-State MSA's.--In the case of any designated
MSA that contains area within--
(1) any State for which a waiver has been made pursuant to
subsection (a); and
(2) any State for which such a waiver has not been made;
the provisions of this Act requiring submission of
information to the Secretary regarding such MSA shall be
considered to apply only to the portion of such MSA that is
located within the State for which such a waiver has not been
made.
(c) Authority for Secretary To Obtain Information Directly
From Insurers.--If the State for which a waiver has been made
pursuant to subsection (a) does not submit to the Secretary
the information required under subsection (a)(2)(A) or
submits information that is not complete, the Secretary shall
require the insurers transacting business within the State to
submit such information directly to the Secretary.
SEC. 8. REPORTING BY PRIVATE MORTGAGE INSURERS.
(a) HMDA Reporting.--On an annual basis, the Federal
Financial Institutions Examination Council (hereafter in this
section referred to as the ``Council'') shall determine the
extent to which each insurer providing private mortgage
insurance is making available to the public and submitting to
the appropriate agency information regarding such insurance
that is equivalent to the information regarding mortgages
required to be reported under the Home Mortgage Disclosure
Act of 1975.
(b) Reporting Under This Act.--
(1) Certification of noncompliance.--If, for any annual
period referred to in subsection (a), the Council determines
that any insurer providing private mortgage insurance is not
making available to the public or submitting the information
referred to in subsection (a) or that the information made
available or submitted is not equivalent information as
described in subsection (a), then the Council shall notify
the insurer of such noncompliance. If, after the expiration
of a reasonable period of time, the insurer has not remedied
such noncompliance to the satisfaction of the Council, then
the Council shall immediately certify such noncompliance to
the Secretary.
(2) Requirement.--Upon the receipt of a certification under
paragraph (1), the Secretary shall, by regulation, require
such insurer to submit to the Secretary information regarding
such insurance that complies with the provisions of section 4
that are applicable to such insurance. Such regulations shall
be issued not later than 6 months after receipt of such
certification and shall apply to the first succeeding annual
reporting period beginning not less than 6 months after
issuance of such regulations and to each annual reporting
period thereafter.
SEC. 9. USE OF DATA CONTRACTOR AND STATISTICAL AGENTS.
(a) Data Collection Contractor.--The Secretary may contract
with a data collection contractor to collect the information
required to be maintained and submitted under sections 4, 5,
6, 7, and 8(b), if the contractor agrees to collect the
information pursuant to the terms and conditions of such
sections and this Act and the regulations issued thereunder.
Information submitted to such contractor shall be available
to the public to the same extent as if the information were
submitted directly to the Secretary.
(b) Use of Statistical Agents.--
(1) In general.--The Secretary shall provide, by
regulation, that insurers may submit any information required
under sections 4, 5, 6, and 8(b) through statistical agents
acting on behalf of more than one insurer.
(2) Protections.--The regulations issued under this
subsection shall permit submission of information through a
statistical agent only if the Secretary determines that--
(A) the statistical agent has adequate procedures to
protect the integrity of the information submitted;
(B) the statistical agent has a statistical plan and format
for submitting the information that meets the requirements of
this Act;
(C) the statistical agent has procedures in place that
ensure that information reported under the statistical plan
in connection with reporting under this Act and submitted to
the Secretary is not subject to any adjustment by the
statistical agent or an insurer for reasons other than
technical accuracy and conformance to the statistical plan;
(D) the information of an insurer is not subject to review
by any other insurer before being made available to the
public; and
(E) acceptance of the information through the statistical
agent will not adversely affect the accuracy of the
information reported.
(3) Discontinuance of acceptance of information.--The
Secretary may discontinue accepting information reported
through a statistical agent pursuant to this subsection if
the Secretary determines that the requirements for such
reporting are no longer met or that continued acceptance of
such information is contrary to the goal of ensuring the
accuracy of the information reported.
(4) GAO audits.--The Comptroller General of the United
States shall, at the request of the Secretary, audit
information collection and submission performed under this
subsection by data collection contractors or statistical
agents to ensure that the integrity of the information
collected and submitted is protected. In determining whether
to request an audit of a statistical agent, the Secretary
shall consider the sufficiency (for purposes of this Act) of
audits of the statistical agent conducted in connection with
State insurance regulation.
(5) Liability.--Notwithstanding any use of a statistical
agent as authorized under this subsection, an insurer using
such an agent shall be responsible for compliance with the
requirements under this Act.
SEC. 10. SUBMISSION OF INFORMATION TO SECRETARY AND
MAINTENANCE OF INFORMATION.
(a) Period of Maintenance.--Each insurer required by this
Act to compile and submit information to the Secretary shall
maintain such information for the 3-year period beginning
upon the conclusion of the annual reporting period to which
such information relates. The Secretary shall maintain any
information submitted to the Secretary for such period as the
Secretary considers appropriate and feasible to carry out the
purposes of this Act and to allow for historical analysis and
comparison of the information.
(b) Submission.--The Secretary shall issue regulations
prescribing a standard schedule (taking into consideration
the provisions of section 12(a)), format, and method for
submitting information under this Act to the Secretary. The
format and method of submitting the information shall
facilitate and encourage the submission in a form readable by
a computer. Any insurer submitting information to the
Secretary may submit in writing to the Secretary any
additional information or explanations that the insurer
considers relevant to the decision by the insurer to sell
insurance.
SEC. 11. COMPILATION OF AGGREGATE INFORMATION.
(a) Insurance Information.--For each annual reporting
period, the Secretary shall--
[[Page S2405]]
(1) compile, for each designated MSA, by designated line
(and if such information is submitted, by subline or coverage
type)--
(A) information submitted under sections 4, 5, 7, and 8(b)
and loss ratios (if the submission of loss information is
required), aggregated by applicable region for all insurers
submitting such information; and
(B) such information and loss ratios (if the submission of
loss information is required), aggregated by applicable
region for each such insurer; and
(2) produce tables based on information submitted under
sections 4, 5, 7, and 8(b) for each designated MSA, by
insurer and for all insurers, by designated line (and if such
information is submitted, by subline or coverage type),
indicating--
(A) insurance underwriting patterns aggregated for the
applicable regions within the MSA, grouped according to
location, age of property, income level, and racial
characteristics of neighborhoods; and
(B) loss ratios based on the information obtained pursuant
to sections 4, 5, 7, and 8(b) (if the submission of loss
information is required), aggregated for the applicable
regions within the MSA, grouped according to location, age of
property, income level, and racial characteristics of
neighborhoods.
(b) Agent Information.--For each annual reporting period
and for each designated MSA, the Secretary shall compile, by
designated line, the information submitted under section
4(b)(1)(C)--
(1) by designated insurer by applicable region;
(2) by designated insurer aggregated for the applicable
regions within the designated MSA, grouped according to
location, age of property, income level, and racial
characteristics; and
(3) for all designated insurers that have submitted such
information for the designated MSA, aggregated for the
applicable regions within the designated MSA, grouped
according to location, age of property, income level, and
racial characteristics.
(c) Rural Insurance Information.--For each annual reporting
period, the Secretary shall--
(1) compile for each applicable 5-digit zip code, by
designated line (and if such information is submitted, by
subline or coverage type)--
(A) information regarding insurance in rural areas
submitted under sections 6 and 7 and loss ratios, for all
insurers for which such information is submitted; and
(B) such information and loss ratios, for each such
insurer; and
(2) produce tables for each 5-digit zip code based on
information regarding insurance in rural areas submitted
under sections 6 and 7, by insurer and for all such insurers
for which information is submitted under such sections, by
designated line (and if such information is submitted, by
subline or coverage type), indicating--
(A) insurance underwriting patterns, aggregated by zip
codes, grouped according to location, age of property, income
level, and racial characteristics of neighborhoods (where
such demographic information is available); and
(B) loss ratios, based on the information obtained pursuant
to sections 6 and 7, aggregated by zip codes, grouped
according to location, age of property, income level, and
racial characteristics of neighborhoods (where such
demographic information is available).
SEC. 12. AVAILABILITY AND ACCESS SYSTEM.
(a) Availability to Public.--
(1) In general.--The Secretary shall maintain and make
available to the public, in accordance with the requirements
of this section, any information submitted to the Secretary
under this Act and any information compiled by the Secretary
under this Act.
(2) Timing.--The Secretary shall make such information
publicly available on a timetable determined by the
Secretary, but not later than 9 months after the conclusion
of the annual reporting period to which the information
relates, except that such information shall not be made
available to the public until it is available in its entirety
unless not all the information required to be reported is
available by such date.
(b) Public Access System.--
(1) Implementation.--The Secretary shall implement a system
to facilitate access to any information required to be made
available to the public under this Act.
(2) Bases of availability.--The system shall provide access
in the following manners:
(A) Access to itemized information.--To information
submitted under sections 4, 5, 6, 7, and 8(b) on the basis of
the insurer submitting the information, on the basis of
designated MSA and applicable region (or in the case of rural
information submitted under section 6 or 7, on the basis of
5-digit zip code), and on any other basis the Secretary
considers feasible and appropriate.
(B) Access to aggregate information.--To aggregate
information compiled under section 11, on the basis of--
(i) the insurer submitting the information;
(ii) designated MSA and applicable region (or in the case
of rural information submitted under section 6 or 7, on the
basis of 5-digit zip code); and
(iii) any other basis the Secretary considers feasible and
appropriate.
(3) Method.--The access system shall include a toll-free
telephone number that can be used by the public to request
such information and the address at which a written request
for such information may be submitted.
(4) Form.--The Secretary shall, by regulation, establish
the forms in which such information may be furnished by the
Secretary. Such forms shall include written statements, forms
readable by widely used personal computers, and, if feasible,
on-line access for personal computers. The Secretary shall
provide the information available under this section in any
such form requested by the person requesting the information,
except that the Secretary may charge a fee for providing such
information, which may not exceed the amount, determined by
the Secretary, that is equal to the cost of reproducing the
information.
(5) Analysis software.--The Secretary shall make available
to the public software that can be used on a personal
computer to analyze the information provided under this
section. The software shall be capable of analyzing the
information by insurer, designated line, race, gender, MSA,
and applicable region. It shall also contain data compiled by
the Secretary for each MSA and applicable region on income
levels, age of property, and racial characteristics that can
be used to evaluate the information provided under this Act
by insurers. The software and any accompanying data shall be
made available to the public without charge, except for an
amount, determined by the Secretary, which shall not exceed
the actual cost of reproducing the software and the
accompanying data.
(c) Protections Regarding Loss Information.--
(1) Prohibition of disclosure of loss information.--
Notwithstanding any other provision of this Act, the
Secretary may not make available to the public or otherwise
disclose any information submitted under this Act regarding
the amount or number of claims paid by any insurer, the
amount of losses of any insurer, or the loss experience for
any insurer, except--
(A) in the form of a loss ratio (expressing the
relationship of claims paid to premiums) made available or
disclosed in compliance with the provisions of paragraph (2);
or
(B) as provided in paragraph (3).
(2) Protection of identity of insurer.--In making available
to the public or otherwise disclosing a loss ratio for an
insurer--
(A) the Secretary may not identify the insurer to which the
loss ratio relates; and
(B) the Secretary may disclose the loss ratio only in a
manner that does not allow any party to determine the
identity of the specific insurer to which the loss ratio
relates, except parties having access to information under
paragraph (3).
(3) Confidentiality of information disclosed to
governmental agencies.--The Secretary may make information
referred to in paragraph (1) and the identity of the specific
insurer to which such information relates available to any
Federal entity and any State agency responsible for
regulating insurance in a State and may otherwise disclose
such information to any such entity or agency, but only to
the extent such entity or agency agrees not to make any such
information available or disclose such information to any
other person.
SEC. 13. DESIGNATIONS.
(a) Designation of MSA's.--For purposes of this Act, the
term ``designated MSA'' means the following MSA's:
(1) First 5 years.--With respect to the first 5 annual
reporting periods to which the reporting requirements under
this Act apply (pursuant to section 24), any of the 150 MSA's
selected as follows:
(A) The Secretary shall select the 50 MSA's having the
largest populations, as determined by the Secretary and
specified in regulations issued pursuant to section 22, which
shall not be amended or revised after issuance.
(B) The Secretary shall select 100 additional MSA's, on a
basis that provides for--
(i) geographic diversity among the designated MSA's under
this paragraph; and
(ii) diversity in size of the populations among such MSA's.
(2) After first 5 years.--With respect to annual reporting
periods thereafter, an MSA for which a designation under this
paragraph is in effect, pursuant to the following
requirements:
(A) The designations shall be made for each of the
successive 5-year periods at the time provided in
subparagraph (C), and the first such period shall be the 5-
year period beginning upon the commencement of the sixth
annual reporting period to which the reporting requirements
under this Act apply.
(B) The Secretary shall designate not less than 150 MSA's
as designated MSA's for each such 5-year period and shall
designate such MSA's based upon the information and
recommendations made in the report under section 18(b)
relating to the period.
(C) The Secretary shall make the designation of MSA's for
an ensuing 5-year period by regulations issued--
(i) not later than 12 months before the commencement of the
5-year period; and
(ii) not later than 6 months after the submission to the
Secretary of the report under section 20(b) relating to such
period.
(D) The designations of MSA's for a 5-year period shall
take effect upon the commencement of the first annual
reporting period of the 5-year period beginning not less than
12 months after the issuance of the regulations making such
designations, and shall remain in effect until the expiration
of the 5-year period.
[[Page S2406]] Notwithstanding any other provision of this
section, the designation of an MSA shall remain in effect
until a succeeding designation of MSA's under paragraph (2)
takes effect.
(b) Designation of Insurers.--The Secretary shall
designate, for each designated line and each State, insurers
doing business in the lines as designated insurers in the
State for purposes of this Act, subject to the following
requirements:
(1) Highest aggregate premium volume.--
(A) General rule.--For each State, the Secretary shall
designate, for each designated line, each of the insurers and
insurer groups included in the class established under this
paragraph for the State.
(B) Determination.--In each State, the Secretary shall rank
the insurers and insurer groups in each designated line from
the insurer or group having the largest aggregate premium
volume in the State for such line to the insurer or group
having the smallest such aggregate premium volume and shall
include in the class for the State only--
(i) the insurer or group of the highest rank;
(ii) each insurer or group of successively lower rank if
the inclusion of such insurer or group in the class does not
result in the sum of such aggregate premium volumes for
insurers and groups in the class exceeding 80 percent of the
total aggregate premium volume in the State for the line; and
(iii) the first such successively lower ranked insurer or
insurer group whose inclusion in the class results in such
sum exceeding 80 percent of the total aggregate premium
volume in the State for the line.
(2) Minimum aggregate premium volume.--For each State, the
Secretary shall designate, for each designated line, each
insurer and insurer group not designated pursuant to
paragraph (1) whose premium volume in the State for the
designated line exceeds 1 percent of the total aggregate
premium volume in the State for the line.
(3) FAIR plans and joint underwriting associations.--For
each State, the Secretary shall designate, for each
designated line--
(A) each statewide plan under part A of title XII of the
National Housing Act to assure fair access to insurance
requirements; and
(B) each joint underwriting association;
that provides insurance under such line.
(4) Duration.--The Secretary shall designate insurers under
this subsection once every 5 years. Each insurer designated
shall be a designated insurer for each of the first 5
successive annual reporting periods commencing after such
designation.
(c) Designation of Lines of Insurance.--
(1) In general.--The Secretary shall, by regulation,
designate homeowners, dwelling fire, and allied lines of
insurance as designated lines for purposes of this Act, and
shall distinguish the coverage types in such lines by the
perils covered and by market or replacement value. For
purposes of this Act, homeowners insurance shall not include
any renters coverage or coverage for the personal property of
a condominium owner.
(2) Report.--At any time the Secretary determines that any
line of insurance not described in paragraph (1) should be a
designated line because disparities in coverage provided
under such line exist among geographic areas having different
income levels or racial composition, the Secretary shall
submit a report recommending designating such line of
insurance as a designated line for purposes of this Act to
the Committee on Banking, Finance and Urban Affairs of the
House of Representatives and the appropriate committees of
the Senate.
(3) Duration.--
(A) In general.--Except as provided in subparagraph (B),
the Secretary shall make the designations under this
subsection once every 5 years, by regulation, and each line
and subline or coverage type designated under such
regulations shall be designated for each of the first 5
successive annual reporting periods occurring after issuance
of the regulations.
(B) Alteration.--During any 5-year period referred to in
subparagraph (A) in which designations are in effect, the
Secretary may amend or revise the designated lines, sublines,
and coverage types only by regulation and only in accordance
with the requirements of this subsection. Such regulations
amending or revising designations shall apply only to annual
reporting periods beginning after the expiration of the 6-
month period beginning on the date of issuance of the
regulations.
(d) Timing of Designations.--The Secretary shall make the
designations required by subsections (b)(4) and (c)(3)(A) and
notify interested parties during the 6-month period ending 6
months before the commencement of the first annual reporting
period to which such designations apply.
(e) Obtaining Information.--The Secretary may require
insurers to submit to the Secretary such information as the
Secretary considers necessary to make designations
specifically required under this Act. The Secretary may not
require insurers to submit any information under this
subsection that relates to any line of insurance not
specifically authorized to be designated pursuant to this Act
or that is to be used solely for the purpose of a report
under subsection (c)(2).
SEC. 14. IMPROVED METHODS AND REPORTING ON BASIS OF OTHER
AREAS.
(a) Development of Improved Methods.--The Secretary shall
develop, or assist in the improvement of, methods of matching
addresses and applicable regions to facilitate compliance by
insurers, in as economical a manner as possible, with the
requirements of this Act. The Secretary shall allow insurers,
or statistical agents acting on behalf of insurers, to match
addresses and applicable regions through the use of 9-digit
zip codes if the Secretary determines that such use will
substantially reduce the cost and burden to insurers of such
matching without significant adverse impact on the
reliability of the matching.
(b) Address Conversion Software.--The Secretary shall make
available, to any insurer required to provide information to
the Secretary under this Act, computer software that can be
used to convert addresses to applicable regions within
designated MSA's. The software shall be made available in
forms that provide such conversion for designated MSA's on a
nationwide basis and on a State-by-State basis. The software
shall be made available not later than 6 months before the
first annual reporting period to which the reporting
requirements under this Act apply (pursuant to section 26)
and shall be updated annually. The software shall be made
available without charge, except for an amount, determined by
the Secretary, which shall not exceed the actual cost of
reproducing the software.
(c) Convertibility.--
(1) Authority.--The Secretary may, by regulation, provide
for insurers to comply with the requirements under sections
4, 5, and 8(b) by reporting the information required under
such sections on the basis of geographical location other
than MSA and applicable region, but only if the Secretary
determines that information reported on such other basis is
convertible to the basis of MSA and applicable region and
such conversion does not affect the accuracy of the
information.
(2) Limitation.--With respect to any information submitted
on the basis of geographical location other than designated
MSA and applicable region pursuant to paragraph (1), the
Secretary may disclose the information only on the basis of
designated MSA and applicable region.
SEC. 15. ANNUAL REPORTING PERIOD.
(a) In General.--For purposes of this Act, the annual
reporting periods shall be the 12-month periods commencing in
each calendar year on the same day, which shall be selected
under subsection (b) by the Secretary.
(b) Selection.--Not later than the expiration of the 6-
month period beginning on the date of enactment of this Act,
the Secretary shall, by regulation, select a day of the year
upon which all annual reporting periods shall commence. In
determining such day, the Secretary shall consider the
reporting periods used for purposes of State and other
insurance statistical reporting systems, in order to minimize
the burdens on insurers.
SEC. 16. DISCLOSURES BY INSURERS TO APPLICANTS AND
POLICYHOLDERS.
(a) In General.--The Secretary shall, by regulation,
require the following disclosures:
(1) Applicants.--Each insurer that, through the insurer, or
an agent or broker, declines a written application or written
request to issue an insurance policy under a designated line
shall provide to the applicant at the time of such
declination, through such insurer, agent, or broker, one of
the following:
(A) A written explanation of the specific reasons for the
declination.
(B) Written notice that--
(i) the applicant may submit to the insurer, agent, or
broker, within 90 days of such notice, a written request for
a written explanation of the reasons for the declination; and
(ii) pursuant to such a request, an explanation shall be
provided to the applicant within 21 days after receipt of
such request.
(2) Provision of explanation.--If an insurer, agent, or
broker making a declination receives a written request
referred to in paragraph (1)(B) within such 90-day period,
the insurer, agent, or broker shall provide a written
explanation referred to in such subparagraph within such 21-
day period.
(3) Policyholders.--Each insurer that cancels or refuses to
renew an insurance policy under a designated line shall
provide to the policyholder, in writing and within an
appropriate period of time as determined by the Secretary,
the reasons for canceling or refusing to renew the policy.
(b) Model Acts.--In issuing regulations under subsection
(a), the Secretary shall consider relevant portions of model
acts developed by the National Association of Insurance
Commissioners.
(c) Preemption.--Subsection (a) shall not be construed to
annul, alter, or effect, or exempt any insurer, agent, or
broker subject to the provisions of subsection (a) from
complying with any laws or requirements of any State with
respect to notifying insurance applicants or policyholders of
the reasons for declination or cancellation of, or refusal to
renew insurance, except to the extent that such laws or
requirements are inconsistent with subsection (a) (or the
regulations issued thereunder) and then only to the extent of
such inconsistency. The Secretary is authorized to determine
whether such inconsistencies exist and to resolve issues
regarding such inconsistencies. The Secretary may not provide
that any State law or requirement is inconsistent with
subsection (a) if it imposes requirements equivalent to the
requirements under such subsection or requirements that are
more stringent or comprehensive, in the determination of the
Secretary.
[[Page S2407]]
(d) Immunity.--In issuing regulations under subsection (a),
the Secretary shall specifically consider the necessity of
providing insurers, agents, and brokers with immunity solely
for the act of conveying or communicating the reasons for a
declination or cancellation of, or refusal to renew insurance
on behalf of a principal making such decision. The Secretary
may provide for immunity under the regulations issued under
subsection (a) if the Secretary determines that such a
provision is necessary and in the public interest, except
that the Secretary may not provide immunity for any conduct
that is negligent, reckless, or willful.
(e) Enforcement.--The Secretary may authorize the States to
enforce the requirements under regulations issued under
subsection (a).
SEC. 17. ENFORCEMENT.
(a) Civil Penalties.--Any insurer who is determined by the
Secretary, after providing opportunity for a hearing on the
record, to have violated any requirement pursuant to this Act
shall be subject to a civil penalty of not to exceed $5,000
for each day during which such violation continues.
(b) Injunction.--The Secretary may bring an action in an
appropriate United States district court for appropriate
declaratory and injunctive relief against any insurer who
violates the requirements referred to in subsection (a).
(c) Insurer Liability.--An insurer shall be responsible
under subsections (a) and (b) for any violation of a
statistical agent acting on behalf of the insurer.
SEC. 18. REPORTS.
(a) Annual Report.--The Secretary shall annually report to
the Committee on Banking, Finance and Urban Affairs of the
House of Representatives and the appropriate committees of
the Senate on the implementation of this Act and shall make
recommendations to such committees on such additional
legislation as the Secretary deems appropriate to carry out
this Act. The Secretary shall include in each annual report a
description of any complaints or problems resulting from the
implementation of this Act, of which the Secretary has
knowledge, made by (or on behalf of) insurance policyholders
that concern the disclosure of information regarding
policyholders and any recommendations for addressing such
problems. Each report shall specifically address whether
granting property and casualty insurance powers to other
financial intermediaries would significantly reduce redlining
and other discriminatory insurance practices and the
Secretary shall consult with the appropriate financial
institution regulators regarding such issues in preparing the
report.
(b) GAO Reports.--
(1) In general.--The Comptroller General of the United
States shall submit a report under this subsection to the
Secretary and the Congress for each 5-year period referred to
in sections 6(c)(2) and 13(a)(2), which contains information
to be used by the Secretary in implementing this Act during
such period.
(2) Timing.--The report under this subsection for each such
5-year period shall be submitted not later than 18 months
before the commencement of the period to which the report
relates.
(3) Contents.--A report under this subsection shall include
the following information:
(A) An analysis of the adequacy of the implementation of
this Act and any recommendations of the Comptroller General
for improving the implementation.
(B) The costs to the Federal Government, insurers, and
consumers of implementing and complying with this Act.
(C) Any beneficial or harmful effects resulting from the
requirements of this Act.
(D) An analysis of whether, considering the purposes of
this Act, insurers are required by this Act (or by
implementing regulations) to submit appropriate information.
(E) An analysis of whether sufficient evidence exists of
patterns of disparities in the availability, affordability,
and quality or type of insurance coverage to warrant
continued applicability of the requirements of this Act.
(F) An analysis of whether the group of designated MSA's in
effect at the time of the report are appropriate for purposes
of this Act.
(G) Specific recommendations, for use by the Secretary in
designating MSA's for the 5-year period for which the report
is made, with regard to--
(i) the characteristics of MSA's that should be included in
the group of designated MSA's;
(ii) the number of MSA's that should be included in the
group;
(iii) the number of MSA's having each particular
characteristic that should be included in the group; and
(iv) the characteristics of MSA's, and number of MSA's
having each such characteristic, that should be removed from
the group of designated MSA's in effect at the time of the
report.
(H) With respect only to the first report required under
this subsection, recommendations of whether the study
conducted under section 5 should be continued beyond the date
in section 5(b)(8) and, if so, whether the requirements
regarding the submission of information under the study
should be expanded or changed with respect to insurers,
MSA's, lines, sublines or coverage types of insurance, and
types of small businesses, or whether the study should be
allowed to terminate under law.
(I) An analysis of whether the group of designated rural
areas in effect at the time of the report are appropriate for
purposes of this Act.
(J) Specific recommendations, for use by the Secretary in
designating rural areas for purposes of section 6 for the 5-
year period for which the report is made, with regard to--
(i) the characteristics of rural areas that should be
included in the group of designated rural areas under such
section;
(ii) the number of rural areas having each particular
characteristic that should be included in the group; and
(iii) the characteristics of rural areas, and number of
rural areas having each such characteristic, that should be
removed from the group of designated rural areas in effect at
the time of the report.
(K) Any other information or recommendations relating to
the requirements or implementation of this Act that the
Comptroller General considers appropriate.
(4) Consultation.--In preparing each report under this
subsection, the Comptroller General shall consult with
Federal agencies having appropriate expertise, the National
Association of Insurance Commissioners, State insurance
regulators, statistical agents, representatives of small
businesses, representatives of insurance agents (including
minority insurance agents) and property and casualty
insurers, and community, consumer, and civil rights
organizations.
SEC. 19. TASK FORCE ON AGENCY APPOINTMENTS.
(a) Establishment.--Not later than 90 days after the date
of enactment of this Act, the Secretary shall establish a
task force on insurance agency appointments (hereafter in
this section referred to as the ``Task Force''). The Task
Force shall--
(1) consist of representatives of appropriate Federal
agencies, property and casualty insurance agents, including
specifically minority insurance agents, property and casualty
insurers, State insurance regulators, and community,
consumer, and civil rights organizations;
(2) have a significant representation from minority
insurance agents; and
(3) be chaired by the Secretary or the Secretary's
designee.
(b) Function.-- The Task Force shall--
(1) review the problems inner-city and minority agents may
have in receiving appointments to represent property and
casualty insurers and consider the effects such problems have
on the availability, affordability, and quality or type of
insurance, especially in underserved areas;
(2) review the practices of insurers in terminating agents
and consider the effects such practices have on the
availability, affordability, and quality or type of
insurance, especially in underserved areas; and
(3) recommend solutions to improve the ability of inner-
city and minority insurance agents to market property and
casualty insurance products, including steps property and
casualty insurers should take to increase their appointments
of such agents.
(c) Report and Termination.--The Task Force shall report to
the Committee on Banking, Finance and Urban Affairs of the
House of Representatives and the appropriate committees of
the Senate its findings under paragraphs (1) and (2) of
subsection (b) and its recommendations under paragraph (3) of
subsection (b) not later than 2 years after the date of
enactment of this Act. The Task Force shall terminate on the
date on which the report is submitted to the committees.
SEC. 20. STUDIES.
(a) Study of Insurance Prescreening.--
(1) In general.--The Secretary shall conduct a study to
determine the feasibility and utility of requiring insurers
to report information with respect to the characteristics of
applicants for insurance and reasons for rejection of
applicants. The study shall examine the extent to which--
(A) oral applications or representations are used by
insurers and agents in making determinations regarding
whether or not to insure a prospective insured;
(B) written applications are used by insurers and agents in
making determinations regarding whether or not to insure a
prospective insured;
(C) written applications are submitted after the insurer or
agent has already made a determination to provide insurance
to a prospective insured or has determined that the
prospective insured is eligible for insurance; and
(D) prospective insured persons are discouraged from
submitting applications for insurance based, in whole or in
part, on--
(i) the location of the risk to be insured;
(ii) the racial characteristics of the prospective insured;
(iii) the racial composition of the neighborhood in which
the risk to be insured is located; and
(iv) in the case of residential property insurance, the age
and value of the risk to be insured.
(2) Report.--The Secretary shall report the results of the
study under paragraph (1) to the Committee on Banking,
Finance and Urban Affairs of the House of Representatives and
the appropriate committees of the Senate, not later than 2
years after the date of enactment of this Act. The report
shall include recommendations of the Secretary--
(A) with respect to requiring insurers to report on the
disposition of oral and written applications for insurance;
and
[[Page S2408]] (B) for any legislation that the Secretary
considers appropriate regarding the issues described in the
report.
(b) Study of Insurer Actions To Meet Insurance Needs of
Certain Neighborhoods.--The Secretary shall conduct a study
of various practices, actions, and methods undertaken by
insurers to meet the property and casualty insurance needs of
residents of low- and moderate-income neighborhoods, minority
neighborhoods, and small businesses located in such
neighborhoods. The Secretary shall report the results of the
study, including any recommendations, to the Committee on
Banking, Finance and Urban Affairs of the House of
Representatives and the appropriate committees of the Senate,
not later than 2 years after the date of enactment of this
Act.
(c) Study of Disparate Claims Treatment.--
(1) In general.--The Secretary shall conduct a study to
determine whether, and the extent to which, insurers engage
in disparate treatment in handling claims of policyholders
under designated lines of insurance based on the race,
gender, and income level of the policyholder, and on the
racial characteristics and income levels of the area in which
the insured risk is located. In conducting the study, the
Secretary shall specifically consider whether residents of
low-income neighborhoods or areas and minority neighborhoods
or areas are more likely than residents of other areas to
have their claims contested or their insurance coverage
canceled.
(2) Report.--The Secretary shall submit a report on the
results of the study to the Committee on Banking, Finance and
Urban Affairs of the House of Representatives and the
appropriate committees of the Senate, not later than 2 years
after the date of enactment of this Act.
(d) Study of Rating Territories.--The Secretary shall
conduct a study to determine whether the practice in the
insurance industry of basing insurance premium amounts on the
territory in which the insured risk is located has a
disparate impact on the availability, affordability, or
quality of insurance by race, gender, or type of
neighborhood. The Secretary shall submit a report on the
results of the study to the Committee on Banking, Finance and
Urban Affairs of the House of Representatives and the
appropriate committees of the Senate, not later than 12
months after the date of enactment of this Act.
(e) Study of Insurer Reinvestment Requirements.--
(1) In general.--The Secretary shall conduct a study to
determine the feasibility of requiring insurers to reinvest
in communities and neighborhoods from which they collect
premiums for insurance and whether, and the extent to which,
community reinvestment requirements for insurers should be
established that are comparable to the community reinvestment
requirements applicable to depository institutions. The
Secretary shall consult with representatives of insurers and
consumer, community, and civil rights organizations regarding
the results of the study and any recommendations to be made
based on the results of the study.
(2) Report.--The Secretary shall report the results of the
study, including any such recommendations, to the Committee
on Banking, Finance and Urban Affairs of the House of
Representatives and the appropriate committees of the Senate,
not later than 6 months after the conclusion of the first
annual reporting period to which the reporting requirements
under this Act apply (pursuant to section 26).
SEC. 21. EXEMPTION AND RELATION TO STATE LAWS.
(a) Exemption for United States Programs.--Reporting shall
not be required under this Act with respect to insurance
provided by any program underwritten or administered by the
United States.
(b) Relation to State Laws.--This Act does not annul,
alter, or affect, or exempt the obligation of any insurer
subject to this Act to comply with the laws of any State or
subdivision thereof with respect to public disclosure,
submission of information, and recordkeeping.
SEC. 22. REGULATIONS.
(a) In General.--The Secretary shall issue any regulations
required under this Act and any other regulations that may be
necessary to carry out this Act. The regulations shall be
issued through rulemaking in accordance with the procedures
under section 553 of title 5, United States Code, for
substantive rules. Except as otherwise provided in this Act,
such final regulations shall be issued not later than the
expiration of the 18-month period beginning on the date of
enactment of this Act.
(b) Burdens.--In prescribing such regulations, the
Secretary shall take into consideration the administrative,
paperwork, and other burdens on insurance agents, including
independent insurance agents, involved in complying with the
requirements of this Act and shall minimize the burdens
imposed by such requirements with respect to such agents.
SEC. 23. DEFINITIONS.
For purposes of this Act, the following definitions shall
apply:
(1) Agent.--The term ``agent'' means, with respect to an
insurer, an agent licensed by a State who sells property and
casualty insurance. The term includes agents who are
employees of the insurer, agents who are independent
contractors working exclusively for the insurer, and agents
who are independent contractors appointed to represent the
insurer on a nonexclusive basis.
(2) Applicable region.--The term ``applicable region''
means, with respect to a designated MSA--
(A) for any county located within the MSA that has a
population of more than 30,000, the applicable census tract
within the county; or
(B) for any county located within the MSA that has a
population of 30,000 or less, the applicable county.
(3) Commercial insurance.--The term ``commercial
insurance'' means any line of property and casualty
insurance, except homeowner's, dwelling fire, allied lines,
and other personal lines of insurance.
(4) Designated insurer.--The term ``designated insurer''
means, with respect to a designated line, an insurer
designated for a State by the Secretary under section 13(b)
as a designated insurer for such line or any insurer that is
part of an insurer group selected under such section.
(5) Designated investment.--The term ``designated
investment'' means making or purchasing a loan for the
purchase of commercial real estate, making or purchasing a
mortgage loan for the purchase of a 1- to 4-family dwelling,
making or purchasing a commercial or industrial loan.
(6) Designated line.--The term ``designated line'' means a
line of insurance or bid, performance, and payment bonds
designated by the Secretary under section 13(c).
(7) Exposures.--The term ``exposures'' means, with respect
to an insurance policy, an expression of an exposure unit
covered under the policy compared to the duration of the
policy (pursuant to standards established by the Secretary
for uniform reporting of exposures).
(8) Exposure units.--The term ``exposure units'' means a
dwelling covered under an insurance policy for homeowners,
dwelling fire, or allied lines coverage.
(9) Insurance.--The term ``insurance'' means property and
casualty insurance. Such term includes primary insurance,
surplus lines insurance, and any other arrangement for the
shifting and distributing of risks that is determined to be
insurance under the law of any State in which the insurer or
insurer group engages in an insurance business.
(10) Insurer.--Except with respect to section 8, the term
``insurer'' means any corporation, association, society,
order, firm, company, mutual, partnership, individual,
aggregation of individuals, or any other legal entity that is
authorized to transact the business of property or casualty
insurance in any State or that is engaged in a property or
casualty insurance business. The term includes any certified
foreign direct insurer, but does not include an individual or
entity which represents an insurer as agent solely for the
purpose of selling or which represents a consumer as a broker
solely for the purpose of buying insurance.
(11) Issued.--The term ``issued'' means, with respect to an
insurance policy, newly issued or renewed.
(12) Joint underwriting association.--The term ``joint
underwriting association'' means an unincorporated
association of insurers established to provide a particular
form of insurance to the public.
(13) Mortgage insurance.--The term ``mortgage insurance''
means insurance against the nonpayment of, or default on, a
mortgage or loan for residential or commercial property.
(14) MSA.--The term ``MSA'' means a Metropolitan
Statistical Area or a Primary Metropolitan Statistical Area.
(15) Private mortgage insurance.--The term ``private
mortgage insurance'' means mortgage insurance other than
mortgage insurance made available under the National Housing
Act, title 38 of the United States Code, or title V of the
Housing Act of 1949.
(16) Property and casualty insurance.--The term ``property
and casualty insurance'' means insurance against loss of or
damage to property, insurance against loss of income or extra
expense incurred because of loss of, or damage to, property,
and insurance against third party liability claims caused by
negligence or imposed by statute or contract. Such term does
not include workers' compensation, professional liability, or
title insurance.
(17) Residual market.--The term ``residual market'' means
an assigned risk plan, joint underwriting association, or any
similar mechanism designed to make insurance available to
those unable to obtain it in the voluntary market. The term
includes each statewide plan under part A of title XII of the
National Housing Act to assure fair access to insurance
requirements.
(18) Rural area.--The term ``rural area'' means any area
that--
(A) has a population of 10,000 or more;
(B) has a continuous boundary; and
(C) contains only areas that are rural areas, as such term
is defined in section 520 of the Housing Act of 1949 (except
that clause (3)(B) of such section 520 shall not apply for
purposes of this Act).
(19) Secretary.--The term ``Secretary'' means the Secretary
of Housing and Urban Development.
(20) State.--The term ``State'' means any State, the
District of Columbia, the Commonwealth of Puerto Rico, the
Northern Mariana Islands, the Virgin Islands, American Samoa,
and the Trust Territory of the Pacific Islands.
[[Page S2409]] SEC. 24. EFFECTIVE DATE.
The requirements of this Act relating to reporting of
information by insurers shall take effect with respect to the
first annual reporting period that begins not less than 3
years after the date of enactment of this Act.
____
Congress of the United States,
Washington, DC, October 28, 1994.
Assistant Secretary Roberta Achtenberg,
Division of Fair Housing and Equal Opportunity, Department of
Housing and Urban Development,
Washington, DC.
Dear Secretary Achtenberg: We understand you have recently
received a letter from the ranking Republican member of the
House Subcommittee on Commerce, Consumer Protection and
Competitiveness, regarding the Department of Housing and
Urban Development's (HUD) advance notice of proposed
rulemaking (ANPR) on discrimination in property insurance. We
are writing to inform you that we take a different view from
this letter and we would like to encourage you to proceed as
scheduled with the ANPR.
We are concerned with several of the letter's assertions,
particularly the contentions that insurance underwriting is
unrelated to the Fair Housing Act and that HUD is not the
proper agency to oversee a federal data collection effort. We
respectfully disagree with these notions, as do the federal
courts.
Insurance redlining abuses are widespread and well
documented. In addition to the countless studies and reports
that have verified discriminatory underwriting practices,
field hearings such as the recent Chicago hearing sponsored
by HUD's Fair Housing and Equal Opportunity Division and the
hearings in House and Senate committees have clearly
demonstrated that property and other lines of insurance have
become unaffordable or unavailable in many minority and low-
income communities. Such discriminatory practices are not
confined to one insurance company, one community or one
state--redlining is a national phenomena that requires an
appropriate federal response.
Redlining practices are illegal. This was established in
NAACP v. American Family Insurance when the Seventh Circuit
Court of Appeals ruled unanimously that the underwriting of
homeowners insurance falls under the umbrella of the Fair
Housing Act. Judge Frank Easterbrook, speaking for a
unanimous Court, stated that ``lenders require their
borrowers to secure property insurance. No insurance, no
loan; no loan, no house; lack of insurance thus makes housing
unavailable.'' As you know, HUD has also been identified by a
federal court in Ohio as legally authorized to enforce the
Fair Housing Act as it relates to homeowners insurance. This
was affirmed in Nationwide Mutual Insurance Company v.
Cisneros, when the U.S. District Court upheld HUD's
regulatory authority, noting that HUD's contention that it
had been delegated authority under the Fair Housing Act was
``reasonable and entitled to substantial deference''.
It is also clear that greater disclosure is a key element
in combating redlining. The Home Mortgage Disclosure Act
(HMDA) has provided federal and state regulators in the
mortgage financing field with detailed information to
identify mortgage redlining. As you know, this legislation
has been effective and has had little, if any, adverse impact
on the vitality and prosperity of the banking industry. This
critical piece of legislation was passed for precisely the
reason of enhancing the power of state and federal
authorities to determine if banks and other lending
institutions were discriminating in their lending practices.
As needed and effective as that legislation is, we know that
it is difficult, if not impossible as noted by the Seventh
Circuit Court of Appeals, to obtain a home loan without the
necessary insurance. Thus, seeking this sort of disclosure
only from the lending industry is like throwing out a life
preserver with a rope that is several feet short. We must go
further.
In the insurance industry, enforcement by state officials
of existing anti-discrimination statutes has proven to be
difficult for one principal reason; though many state
insurance commissioners have been forceful and aggressive in
exposing and sanctioning appropriate parties, other state
insurance commissioner offices lack the necessary resources
to collect and compile data information adequately. In many
markets this data is simply unavailable. And critical to this
effort is the need to collect claims and other loss data
which is central to determining if the unavailability of
adequate insurance is due to sound economic underwriting
principles, or to reprehensible factors such as the race and
income status of the applicant.
In powerful testimony before several Congressional
committees, it has been stated over and over that to enforce
the law greater disclosure of crucial information is needed
from the insurance industry. This was included in your
testimony, Secretary Achtenberg, as well as the testimony of
Deval Patrick, Assistant Attorney General for Civil Rights.
It was also expressed by a number of state insurance
commissioners from across the country.
The letter you received also expressed concerns about the
possibility that HUD may promulgate data reporting
requirements stronger than those contained in H.R. 1188, the
Anti-Redlining in Insurance Disclosure Act. These reporting
requirements, such as the collection of claims and loss data,
including a large number of Metropolitan Statistical Areas
(MSAs), and collecting this data by census tract as opposed
to zip codes, have all been recommended by the General
Accounting Office, numerous consumer and civil rights groups
and various state insurance
commissioners. We join these voices in urging you to adopt
these strong reporting requirements.
Finally, we would like to commend you, Secretary
Achtenberg, as well as Secretary Cisneros and other officials
in the Clinton Administration for your forceful stand against
discriminatory redlining practices. Although it is
disappointing that Congress was unable to pass anti-redlining
legislation this year, we are heartened by the
Administration's willingness to initiate efforts to curtail
and root out discrimination in the insurance marketplace. We
look forward to following your progress and invite you to
contact us if we can be of any future assistance.
Sincerely,
Russell Feingold,
Paul Simon,
Senators.
Joseph P. Kennedy II,
Thomas Barrett,
Cleo Fields,
Henry B. Gonzalez,
Lucille Roybal-Allard,
Esteban Edward Torres,
Representatives.
____
U.S. Department of Housing
and Urban Development,
Washington, DC, December 20, 1994.
Hon. Russell D. Feingold
U.S. Senate, Washington, DC.
Dear Senator Feingold: Thank you for your letter of October
28, 1994, expressing your concerns and constructive
recommendations on the issues of insurance redlining and
discrimination. Let me assure you that the Department of
Housing and Urban Development (HUD or the Department) is
proceeding as scheduled with the promulgation of a regulation
applying the Fair Housing Act (the Act) to property
insurance. A similar letter has been sent to Senator Paul
Simon, Congressman Joseph P. Kennedy II, Congressman Henry B.
Gonzalez, Congressman Thomas Barrett, Congressman Cleo
Fields, Congresswoman Lucille Roybal-Allard and Congressman
Esteban Edward Torres.
Clearly, the Department shares your view that HUD has
authority, and indeed the responsibility, to enforce the Act
(Title VIII of the Civil Rights Act of 1968, as amended) in
the area of property insurance. Several Administrations,
beginning with a HUD General Counsel opinion in 1978, have
concluded that the Act prohibits discrimination in the
provision of property or hazard insurance. All the court
decisions that have addressed this issue, with one exception
which was decided prior to the Fair Housing Amendments Act of
1988, have drawn this same conclusion. Because HUD is the
primary Title VIII law enforcement agency, and the only
agency with authority to promulgate regulations under that
Act, the Department will fulfill its obligation to issue
rules applying the Act to property insurance.
As you know, in 1989 HUD issued regulations implementing
the Fair Housing Amendments Act of 1988. In these
regulations, the Department determined that the Act prohibits
``refusing to provide . . . property or hazard insurance . .
. or providing such . . . insurance differently because of
race, color, religion, sex, handicap, familial status, or
national origin'' (24 C.F.R. Section 100.70(a)(4). HUD
intends to go beyond this general prohibition and provide
more detailed guidance regarding the types of practices and
circumstances under which violations of the Act occur.
The Department also shares your viewpoint on the value of
greater disclosure of crucial information. The Department was
also disappointed that Congress was unable to pass anti-
redlining legislation this year. HUD looks forward to working
with you to achieve this objective in the next session of
Congress.
Your contributions to the public meetings that HUD held
during the past few months were most helpful in shaping the
Department's thoughts on how HUD should approach the
regulation. The hearings you have held on insurance
discrimination generated substantial information that will be
tremendously beneficial to HUD's rulemaking process. Your
specific recommendations on the rule and the public attention
that you have stimulated have assisted HUD and many others in
cities throughout the country who are attempting to resolve
these serious problems.
Any further detailed recommendations or general
observations you could share with the Department would be
greatly appreciated.
Thank you for your interest in the Department's programs
and for the guidance you have provided HUD and your concerted
efforts to combat the national problems of insurance
redlining and discrimination.
Sincerely,
William J. Gilmartin,
Assistant Secretary.
____
February 8, 1995.
Hon. Russ Feingold,
U.S. Senate,
Washington, DC.
Dear Senator Feingold: We write to offer our endorsement of
the ``Anti-Redlining in Insurance Disclosure Act of 1995.''
This legislation represents a critical first step towards
[[Page S2410]] addressing the serious problem of unfair
discrimination and redlining in the provision of homeowners
insurance in a simple yet effective way--through the power of
sunshine.
Hearings in both the House of Representatives and the
Senate last year as well as numerous studies and lawsuits
have shown that residents of low-income, predominantly
minority areas have a harder time obtaining insurance
coverage for their homes. Most recently, the National
Association of Insurance Commissioners (NAIC) released the
results of its study of homeowners insurance in more than 40
urban areas in 20 states. In its report, the NAIC concluded
that ``[t]here is considerable evidence that residents of
urban communities, particularly residents of low-income and
minority neighborhoods, face greater difficulty in obtaining
high-quality homeowners insurance through the voluntary
market than residents of other areas.''
Availability and affordability problems for these
communities contributes to and furthers urban decay and
disinvestment. The lack of affordable insurance is a material
deterrent to homeownership and economic development in low
income and minority communities. Without insurance, people
simply cannot buy homes. And without high-quality insurance,
homeowners in these areas are forced to cover much of their
loss out of their own pockets--losses they had hoped
insurance would cover.
The legislation provides the tools to better understand the
extent of the problem and help develop solutions by simply
requiring insurers to begin to make public information as to
where and at what price they write insurance. It also would
collect data on insurer losses which is extremely important
data in assessing the underlying causes for these problems.
The data collected by this legislation will go a long way to
shedding light on the debate over insurance redlining and
will be a valuable tool for enforcement of civil rights laws
at the state and federal level.
Your legislation incorporates 4 key elements that are
essential to advancing fair and equal access to insurance:
First, the bill calls for the collection of data on the
cost and type of insurance policies written by the census
tract (or zip + 4's) where the policy is issued. Only census
tracts provide the kind of relevant demographic data needed
to gauge the extent of disparities created by insurance
redlining on minority and low-income neighborhoods. The Home
Mortgage Disclosure Act requires banks to report loan
information on a census tract basis, and this standard should
apply to the insurance industry as well.
Second, the bill includes the collection of data on
insurance losses and claims. While insurers claim disparities
in prices between different neighborhoods are solely based on
loss experience, evidence suggests the opposite. Data
analyzed by the Missouri Department of Insurance, for
example, indicated that residents of minority neighborhoods
pay more in premiums, but incur fewer losses, than residents
of comparable white neighborhoods. Only through the
collection of loss data can we conclusively resolve the
debate about whether these disparities are due to risk or
prejudice.
Third, the bill would collect this data in 150 Metropolitan
Statistical Areas (MSA's). The NAIC data suggest that
availability and affordability problems are widespread across
the nation. In order to obtain information on all of those
areas that may be experiencing such problems, data needs to
be collected from as many MSAs as possible. Furthermore, the
data will be invaluable as a civil rights enforcement tool,
and that tool should be available to the greatest number of
communities and citizens.
Fourth, the bill provides for the reporting of the race and
gender by policyholders on a voluntary basis. Such data has
been collected under HMDA and other federal, state and
private entities for years and is essential to assist efforts
to enforce state and federal laws prohibiting discrimination
in the provision of insurance.
We are eager to work with you to obtain passage of the
``Anti-Redlining in Insurance Disclosure Act of 1995,'' and
commend you for your leadership on this important issue.
Sincerely,
Alliance to End Childhood Lead Poisoning.
American Civil Liberties Union (ACLU).
American Planning Association.
Association of Community Organizations for Reform Now
(ACORN).
Center for Community Change.
Consumer Federation of America's Insurance Group.
Consumers Union.
Jesuit Conference, USA, Office of Social Ministries.
National Council of La Raza.
National Fair Housing Alliance.
National Neighborhood Coalition.
NETWORK: A National Catholic Social Justice Lobby.
United Methodist Church, General Board of Church and
Society.
United States Public Interest Research Group (US PIRG).
____
[From the Dallas Morning News, Jan. 9, 1995]
Insurance Reform; The Important Thing is to Get it Done
Call it redlining. Call it lack of availability. Call it
what you want to call it. The fact remains that too many
risk-worthy Texans are unable to obtain automobile and
homeowners insurance at the best rates.
The problem is real, and it is serious. Not even the
insurance industry denies that a problem exists, though it
vehemently disputes accusations that it denies insurance to
consumers because of where they live, their skin color or
other factors unrelated to risk.
Nonetheless, compelling evidence compiled by the Texas
Insurance Department indicates that a disproportionate number
of the Texans unable to obtain affordable insurance are
racial or ethnic minorities living in lower-income
neighborhoods.
The insurance industry may resent the charges of unfair
discrimination being hurled by consumer groups, state
regulators and some state legislators. However, it is
impossible to ignore that most victims of what may be
charitably called flaws in the marketplace are neither white
nor wealthy.
The issue has come to a head because Texas Insurance
Commissioner Rebecca Lightsey, an appointee of Democratic
Gov. Ann Richards, must decide whether to enact new anti-
discrimination rules before her term expires Feb. 1.
Republican Gov.-elect George W. Bush wants her to wait so
that the issue may be addressed by his nominee to the post,
Elton Bomer.
Mr. Bush's request is reasonable. It would be decent of Ms.
Lightsey to comply.
But more important than protocol or deference to an
incoming governor is attention to the issue. Denying
insurance abets poverty. It is immoral. It is unfair. It
makes no economic sense.
In such areas as Oak Cliff and South Dallas, there are many
automobiles and homes worth insuring. No insurer should have
to provide preferred or standard-rate insurance to a consumer
who constitutes a bad risk. But neither should he deny it
because of inappropriate or prejudicial notions of
insurability.
There are two acceptable courses. Ms. Lightsey can enact
the rules, in which case Mr. Bush could refine them later as
he sees fit. Or she can let Mr. Bush handle it.
If Ms. Lightsey acts, she should do so because the problem
should not fester a moment longer. There should be no
implication that Mr. Bush would not act; his good record of
support for civil and equal rights indicates quite the
contrary.
____
[From the Houston Post, Jan. 19, 1995]
Outgoing Texas Insurance Regulator Unintimidated
Despite criticism, outgoing Texas Insurance Commissioner
Rebecca Lightsey has courageously promulgated rules to stop
neighborhood ``redlining'' and other discrimination against
automobile and property insurance buyers.
The decision was ripe for making on her watch and she made
it, undaunted by sniping from the insurance industry and new
Republican Gov. George Bush's camp that she was
inappropriately acting on her way out.
The insurance industry has been fighting to block
antidiscrimination rules for two years or more. And Bush, who
had campaign backing from insurance industry leaders, urged
Lightsey to let Bush's new commissioner, former state Rep.
Elton Bomer, decide whether such rules should be adopted.
There appeared a strong likelihood that if Lightsey had
acquiesced, we'd have no rules.
Lightsey, an interim appointee of Democratic Gov. Ann
Richards, succeeded J. Robert Hunter, another Richards
appointee. Hunter resigned after Bush defeated Richards.
Lightsey's term ends Feb. 1.
An attorney, former Texas Consumer Association executive
director and an aide to Gov. Richards, Lightsey has more
insurance regulatory experience than Bomer.
As a Richards staff attorney, she worked on insurance
matters, including development of a comprehensive insurance
regulation reform law in 1991. She earlier dealt with
insurance matters for the consumer association.
Before succeeding Hunter, Lightsey also was executive
director of the Texas Insurance Purchasing Alliance. It was
created by the Legislature to make health insurance more
obtainable for small employers.
The non-discrimination rules she adopted--after holding a
Jan. 4 public hearing that Bush wanted canceled--were not
hastily written. They were developed by the Texas Department
of Insurance after about 18 months of studies and earlier
hearings under Hunter and the three-member State Board of
Insurance that preceded him. The rules are modified
replacements for similar 1993 rules the board adopted, which
the insurance industry got a court to throw out.
Although the insurance industry claims the rules are not
needed because discrimination is already against state and
federal laws, studies by the insurance department and the
Office of Public Insurance Counsel indicate discrimination is
occurring. It is keeping poor people, particularly in
minority neighborhoods, from obtaining house and car
insurance or forcing them to pay higher rates. This should
not be allowed.
The new rules will prohibit:
Consideration of insurance customers' race, color, religion
or national origin. Discrimination based on geographic
location, disability, sex or age also will be banned unless
companies show they cause extra risk.
Use of underwriting guidelines (secret policies as to who
will be insured) not directly related to the risk of extra
losses and claims.
Charging of higher rates or denial of coverage to those
wanting only the minimum amount of car insurance to satisfy
state law.
Consumers can sue for triple damages if the rules are
broken.
[[Page S2411]] None of these rules is unreasonable. If the
industry is not violating them, it should have no cause for
alarm. If it is, such practices should be stopped.
There was no good reason to put off the rules' adoption so
the Bush administration could go over the same ground and
give the industry more time to fight them.
Lightsey has ordered the rules to go into effect June 1.
This gives the Legislature--or Bomer and Bush, who have
indicated they don't even know much about the rules--time to
review and possibly cancel them.
If the rules are killed, however, those responsible had
better be able to show good cause.
______
By Mr. HELMS (for himself, Mr. Dole, Mr. Mack, Mr. Coverdell, Mr.
Graham, Mr. D'Amato, Mr. Hatch, Mr. Gramm, Mr. Thurmond, Mr.
Faircloth, Mr. Gregg, Mr. Inhofe, Mr. Hollings, and Ms. Snowe):
S. 381. A bill to strengthen international sanctions against the
Castro government in Cuba, to develop a plan to support a transition
government leading to a democratically elected government in Cuba, and
for other purposes; ordered held at the desk.
the cuban liberty and democratic solidarity act
Mr. HELMS. Mr. President, the day following the 1994 elections, I met
with reporters in Raleigh to discuss in some detail the priorities I
intended to pursue as chairman of the Senate Foreign Relations
Committee. High on my list of priorities was to do everything possible
as chairman to help bring freedom and democracy to Cuba.
Fidel Castro's brutal and cruel Communist dictatorship has persecuted
the Cuban people for 36 years. He is the world's longest-reigning
tyrant.
That is why I am introducing today a bill titled the ``Cuban Liberty
and Democratic Solidarity (LIBERTAD) Act'' as my first piece of
legislation as chairman of the Foreign Relations Committee.
Let me be clear: Whether Castro leaves Cuba in a vertical position or
a horizontal position is up to him and the Cuban people. But he must--
and will--leave Cuba.
There are some voices murmuring that the United States should lift
the embargo and begin doing business with Castro. I categorically
reject such suggestions, because for 36 years, both Republican and
Democratic Presidents have maintained a consistent, bipartisan policy
of isolating Castro's dictatorship.
There must be no retreat in that policy today. If anything, with the
collapse of the U.S.S.R.--and the end of Soviet subsidies to Cuba--the
embargo is finally having the effect on Castro that has been intended
all along. Why should the United States let up the pressure now? It's
time to tighten the screws--not loosen them. We have an obligation--to
our principles and to the Cuban people--to elevate the pressure on
Castro until the Cuban people are free.
The bi-partisan Cuba policy has led the American people to stand
together in support of restoring freedom to Cuba. As for the
legislation I am offering today, it incorporates and builds upon the
significant work of the two distinguished Senators from Florida, Connie
Mack and Bob Graham, and of three distinguished Members of the House of
Representatives: Lincoln Diaz-Balart, Bob Menendez, and Ileana Ros-
Lehtinen.
The Cuban Liberty and Democratic Solidarity Act:
Strengthens international sanctions against the Castro regime by
prohibiting sugar imports from countries that purchase sugar from Cuba
and then sell that sugar in the United States by instructing our
representatives to the international financial institutions to vote
against loans to Cuba and to require the United States to withhold our
contribution to those same institutions if they ignore our objections
and aid the Castro regime, by urging the President to seek an
international embargo against Cuba at the United Nations, and by
prohibiting loans or other financing by a United States person to a
foreign person or entity who purchases an American property confiscated
by the Cuban Government.
Reaffirms the 1992 Cuban Democracy Act;
Revitalizes our broadcasting programs to Cuba by mandating the
conversion of television Marti to ultra-high frequency [UHF]
broadcasting.
Cuts off foreign aid to any independent State of the Former Soviet
Union that aids Castro, especially if that aid goes for the operation
of military and intelligence facilities in Cuba which threaten the
United States;
Encourages free and fair elections in Cuba after Castro is gone, and
authorizes programs to promote free market and private enterprise
development; and
Help U.S. citizens and U.S. companies whose property was confiscated
by Castro. The bill denies entry into the United States of anyone who
confiscates or benefits from confiscated American property; and it
allows a U.S. citizen with a confiscated property claim to go into a
U.S. court to seek compensation from a person or entity which is being
unjustly enriched by the use of that confiscated property.
The Cuban people are industrious and innovative. Where they live and
work in freedom, they have prospered. My hope is that this bill will
hasten an end to the brutal Castro dictatorship and make Cuba free and
prosperous. Libertad Para Cuba.
Mr. President, I ask unanimous consent that the text of the bill and
additional material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 381
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1995''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. Definitions.
TITLE I--STRENGTHENING INTERNATIONAL SANCTIONS AGAINST THE CASTRO
GOVERNMENT
Sec. 101. Statement of policy.
Sec. 102. Enforcement of the economic embargo of Cuba.
Sec. 103. Prohibition against indirect financing of Cuba.
Sec. 104. United States opposition to Cuban membership in international
financial institutions.
Sec. 105. United States opposition to readmission of the Government of
Cuba to the Organization of American States.
Sec. 106. Assistance by the independent states of the former Soviet
Union for the Government of Cuba.
Sec. 107. Television broadcasting to Cuba.
Sec. 108. Reports on commerce with, and assistance to, Cuba from other
foreign countries.
Sec. 109. Importation sanction against certain Cuban trading partners.
TITLE II--SUPPORT FOR A FREE AND INDEPENDENT CUBA
Sec. 201. Policy toward a transition government and a democratically
elected government in Cuba.
Sec. 202. Authorization of assistance for the Cuban people.
Sec. 203. Implementation; reports to Congress.
Sec. 204. Termination of the economic embargo of Cuba.
Sec. 205. Requirements for a transition government.
Sec. 206. Requirements for a democratically elected government.
TITLE III--PROTECTION OF AMERICAN PROPERTY RIGHTS ABROAD
Sec. 301. Exclusion from the United States of aliens who have
confiscated property claimed by United States persons.
Sec. 302. Liability for trafficking in confiscated property claimed by
United States persons.
Sec. 303. Determination of claims to confiscated property.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) The economy of Cuba has experienced a decline of
approximately 60 percent in the last 5 years as a result of--
(A) the reduction in its subsidization by the former Soviet
Union;
(B) 36 years of Communist tyranny and economic
mismanagement by the Castro government;
(C) the precipitous decline in trade between Cuba and the
countries of the former Soviet bloc; and
(D) the policy of the Russian Government and the countries
of the former Soviet bloc to conduct economic relations with
Cuba predominantly on commercial terms.
(2) At the same time, the welfare and health of the Cuban
people have substantially deteriorated as a result of Cuba's
economic decline and the refusal of the Castro
[[Page S2412]] regime to permit free and fair democratic
elections in Cuba or to adopt any economic or political
reforms that would lead to democracy, a market economy, or an
economic recovery.
(3) The repression of the Cuban people, including a ban on
free and fair democratic elections and the continuing
violation of fundamental human rights, has isolated the Cuban
regime as the only nondemocratic government in the Western
Hemisphere.
(4) As long as no such economic or political reforms are
adopted by the Cuban government, the economic condition of
the country and the welfare of the Cuban people will not
improve in any significant way.
(5) Fidel Castro has defined democratic pluralism as
``pluralistic garbage'' and has made clear that he has no
intention of permitting free and fair democratic elections in
Cuba or otherwise tolerating the democratization of Cuban
society.
(6) The Castro government, in an attempt to retain absolute
political power, continues to utilize, as it has from its
inception, torture in various forms (including psychiatric
abuse), execution, exile, confiscation, political
imprisonment, and other forms of terror and repression as
most recently demonstrated by the massacre of more than 70
Cuban men, women, and children attempting to flee Cuba.
(7) The Castro government holds hostage in Cuba innocent
Cubans whose relatives have escaped the country.
(8) The Castro government has threatened international
peace and security by engaging in acts of armed subversion
and terrorism, such as the training and arming of groups
dedicated to international violence.
(9) The Government of Cuba engages in illegal international
narcotics trade and harbors fugitives from justice in the
United States.
(10) The totalitarian nature of the Castro regime has
deprived the Cuban people of any peaceful means to improve
their condition and has led thousands of Cuban citizens to
risk or lose their lives in dangerous attempts to escape from
Cuba to freedom.
(11) Attempts to escape from Cuba and courageous acts of
defiance of the Castro regime by Cuban pro-democracy and
human rights groups have ensured the international
community's continued awareness of, and concern for, the
plight of Cuba.
(12) The Cuban people deserve to be assisted in a decisive
manner in order to end the tyranny that has oppressed them
for 36 years.
(13) Radio Marti and Television Marti have both been
effective vehicles for providing the people of Cuba with news
and information and have helped to bolster the morale of the
Cubans living under tyranny.
(14) The consistent policy of the United States towards
Cuba since the beginning of the Castro regime, carried out by
both Democratic and Republican administrations, has sought to
keep faith with the people of Cuba, and has been effective in
isolating the totalitarian Castro regime.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to strengthen international sanctions against the
Castro government;
(2) to encourage the holding of free and fair democratic
elections in Cuba, conducted under the supervision of
internationally recognized observers;
(3) to provide a policy framework for United States support
to the Cuban people in response to the formation of a
transition government or a democratically elected government
in Cuba; and
(4) to protect the rights of United States persons who own
claims to confiscated property abroad.
SEC. 4. DEFINITIONS.
As used in this Act--
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee
on International Relations and the Committee on
Appropriations of the House of Representatives and the
Committee on Foreign Relations and the Committee on
Appropriations of the Senate.
(2) Confiscated.--The term ``confiscated'' refers to the
nationalization, expropriation, or other seizure of ownership
or control of property by governmental authority--
(A) without adequate and effective compensation or in
violation of the law of the place where the property was
situated when the confiscation occurred; and
(B) without the claim to the property having been settled
pursuant to an international claims settlement agreement.
(3) Cuban government.--The term ``Cuban government''
includes the government of any political subdivision, agency,
or instrumentality of the Government of Cuba.
(4) Democratically elected government in cuba.--The term
``democratically elected government in Cuba'' means a
government described in section 206.
(5) Economic embargo of cuba.--The term ``economic embargo
of Cuba'' refers to the economic embargo imposed against Cuba
pursuant to section 620(a) of the Foreign Assistance Act of
1961 (22 U.S.C. 2370(a)), section 5(b) of the Trading With
the Enemy Act (50 U.S.C. App. 5(b)), the International
Emergency Economic Powers Act, and the Export Administration
Act of 1979.
(6) Property.--The term ``property'' means--
(A) any property, right, or interest, including any
leasehold interest,
(B) debts owed by a foreign government or by any enterprise
which has been confiscated by a foreign government; and
(C) debts which are a charge on property confiscated by a
foreign government.
(7) Traffics.--The term ``traffics'' means selling,
transfering, distributing, dispensing, or otherwise disposing
of property, or purchasing, receiving, possessing, obtaining
control of, managing, or using property.
(8) Transition government in cuba.--The term ``transition
government in Cuba'' means a government described in section
205.
(9) United states person.--The term ``United States
person'' means
(A) any United States citizen, including, in the context of
claims to confiscated property, any person who becomes a
United States citizen after the property was confiscated but
before final resolution of the claim to that property; and
(B) any corporation, trust, partnership, or other juridical
entity 50 percent or more beneficially owned by United States
citizens.
TITLE I--STRENGTHENING INTERNATIONAL SANCTIONS AGAINST THE CASTRO
GOVERNMENT
SEC. 101. STATEMENT OF POLICY.
It is the sense of the Congress that--
(1) the acts of the Castro government, including its
massive, systematic, and extraordinary violations of human
rights, are a threat to international peace;
(2) the President should advocate, and should instruct the
United States Permanent Representative to the United Nations
to propose and seek within the Security Council a mandatory
international embargo against the totalitarian government of
Cuba pursuant to chapter VII of the Charter of the United
Nations, which is similar to consultations conducted by
United States representatives with respect to Haiti; and
(3) any resumption of efforts by any independent state of
the former Soviet Union to make operational the nuclear
facility at Cienfuegos, Cuba, will have a detrimental impact
on United States assistance to such state.
SEC. 102. ENFORCEMENT OF THE ECONOMIC EMBARGO OF CUBA.
(a) Policy.--(1) The Congress hereby reaffirms section
1704(a) of the Cuban Democracy Act of 1992, which states the
President should encourage foreign countries to restrict
trade and credit relations with Cuba.
(2) The Congress further urges the President to take
immediate steps to apply the sanctions described in section
1704(b)(1) of such Act against countries assisting Cuba.
(b) Diplomatic Efforts.--The Secretary of State should
ensure that United States diplomatic personnel abroad
understand and, in their contacts with foreign officials
are--
(1) communicating the reasons for the United States
economic embargo of Cuba; and
(2) urging foreign governments to cooperate more
effectively with the embargo.
(c) Existing Regulations.--The President shall instruct the
Secretary of the Treasury and the Attorney General to enforce
fully the Cuban Assets Control Regulations in part 515 of
title 31, Code of Federal Regulations.
(d) Violations of Restrictions on Travel to Cuba.--The
penalties provided for in section 16 of the Trading with the
Enemy Act (50 U.S.C. App. 16) shall apply to all violations
of the Cuban Assets Control Regulations (part 515 of title
31, Code of Federal Regulations) involving transactions
incident to travel to and within Cuba, notwithstanding
section 16(b)(2) (the first place it appears) and section
16(b)(3) and (4) of such Act.
SEC. 103. PROHIBITION AGAINST INDIRECT FINANCING OF CUBA.
(a) Prohibition.--Effective upon the date of enactment of
this Act, it is unlawful for any United States person,
including any officer, director, or agent thereof and
including any officer or employee of a United States agency,
knowingly to extend any loan, credit, or other financing to a
foreign person that traffics in any property confiscated by
the Cuban government the claim to which is owned by a United
States person.
(b) Termination of Prohibition.--The prohibition of
subsection (a) shall cease to apply on the date of
termination of the economic embargo of Cuba.
(c) Penalties.--Violations of subsection (a) shall be
punishable by the same penalties as are applicable to similar
violations of the Cuban Assets Control Regulations in part
515 of title 31, Code of Federal Regulations.
(d) Definitions.--As used in this section--
(1) the term ``foreign person'' means (A) an alien, and (B)
any corporation, trust, partnership, or other juridical
entity that is not 50 percent or more beneficially owned by
United States citizens; and
(2) the term ``United States agency'' has the same meaning
given to the term ``agency'' in section 551(1) of title 5,
United States Code.
SEC. 104. UNITED STATES OPPOSITION TO CUBAN MEMBERSHIP IN
INTERNATIONAL FINANCIAL INSTITUTIONS.
(a) Continued Opposition to Cuban Membership in
International Financial Institutions.--(1) Except as provided
in paragraph (2), the Secretary of the Treasury shall
instruct the United States executive director of each
international financial institution to vote against the
admission of Cuba as a member of such institution until Cuba
holds free and fair, democratic elections, conducted under
the supervision of internationally recognized observers.
(2) During the period that a transition government in Cuba
is in power, the President
[[Page S2413]] shall take steps to support the processing of
Cuba's application for membership in any international
financial institution, subject to the membership taking
effect after a democratically elected government in Cuba is
in power.
(b) Reduction in United States Payments to International
Financial Institutions.--If any international financial
institution approves a loan or other assistance to Cuba over
the opposition of the United States, then the Secretary of
the Treasury shall withhold from payment to such institution
an amount equal to the amount of the loan or other
assistance, with respect to each of the following types of
payment:
(1) The paid-in portion of the increase in capital stock of
the institution.
(2) The callable portion of the increase in capital stock
of the institution.
(c) Definition.--For purposes of this section, the term
``international financial institution'' means the
International Monetary Fund, the International Bank for
Reconstruction and Development, the International Development
Association, the International Finance Corporation, the
Multilateral Investment Guaranty Agency, and the Inter-
American Development Bank.
SEC. 105. UNITED STATES OPPOSITION TO READMISSION OF THE
GOVERNMENT OF CUBA TO THE ORGANIZATION OF
AMERICAN STATES.
The President should instruct the United States Permanent
Representative to the Organization of American States to vote
against the readmission of the Government of Cuba to
membership in the Organization until the President determines
under section 203(c) that a democratically elected government
in Cuba is in power.
SEC. 106. ASSISTANCE BY THE INDEPENDENT STATES OF THE FORMER
SOVIET UNION OF THE GOVERNMENT OF CUBA.
(a) Reporting Requirement.--Not later than 90 days after
the date of enactment of this Act, the President shall submit
to the appropriate congressional committees a report
detailing progress towards the withdrawal of personnel of any
independent state of the former Soviet Union (within the
meaning of section 3 of the FREEDOM Support Act (22 U.S.C.
5801)), including advisers, technicians, and military
personnel, from the Cienfuegos nuclear facility in Cuba.
(b) Criteria for Assistance.--Section 498A(a)(11) of the
Foreign Assistance Act of 1961 (22 U.S.C. 2295a(a)(1)) is
amended by striking ``of military facilities'' and inserting
``military and intelligence facilities, including the
military and intelligence facilities at Lourdes and
Cienfuegos,''.
(c) Ineligibility for Assistance.--(1) Section 498A(b) of
that Act (22 U.S.C. 2295a(b)) is amended--
(A) by striking ``or'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph (6); and
(C) by inserting after paragraph (4) the following:
``(5) for the government of any independent state effective
30 days after the President has determined and certified to
the appropriate congressional committees (and Congress has
not enacted legislation disapproving the determination within
the 30-day period) that such government is providing
assistance for, or engaging in nonmarket based trade (as
defined in section 498B(k)(3)) with, the Government of Cuba;
or''.
(2) Subsection (k) of section 498B of that Act (22 U.S.C.
2295b(k)), is amended by adding at the end the following:
``(3) Nonmarket based trade.--As used in section
498A(b)(5), the term `nonmarket based trade' includes
exports, imports, exchanges, or other arrangements that are
provided for goods and services (including oil and other
petroleum products) on terms more favorable than those
generally available in applicable markets or for comparable
commodities, including--
``(A) exports to the Government of Cuba on terms that
involve a grant, concessional price, guarantee, insurance, or
subsidy;
``(B) imports from the Government of Cuba at preferential
tariff rates; and
``(C) exchange arrangements that include advance delivery
of commodities, arrangements in which the Government of Cuba
is not held accountable for unfulfilled exchange contracts,
and arrangements under which Cuba does not pay appropriate
transportation, insurance, or finance costs.''.
(d) Facilities at Lourdes, Cuba.--(1) The Congress
expresses its strong disapproval of the extension by Russia
of credits equivalent to $200,000,000 in support of the
intelligence facility at Lourdes, Cuba, in November 1994.
(2) Section 498A of the Foreign Assistance Act of 1961 (22
U.S.C. 2295a) is amended by adding at the end the following
new subsection:
``(d) Reduction in Assistance for Support of Military and
Intelligence Facilities in Cuba.--(1) Notwithstanding any
other provision of law, the President shall withhold from
assistance allocated for an independent state of the former
Soviet Union under this chapter an amount equal to the sum of
assistance and credits, if any, provided by such state in
support of military and intelligence facilities in Cuba, such
as the intelligence facility at Lourdes, Cuba.
``(2) Nothing in this subsection may be construed to apply
to--
``(A) assistance provided under the Soviet Nuclear Threat
Reduction Act of 1991 (title II of Public Law 102-228) or the
Cooperative Threat Reduction Act of 1993 (title XII of Public
Law 103-160); or
``(B) assistance to meet urgent humanitarian needs under
section 498(1), including disaster assistance described in
subsection (c)(3) of this section.''.
SEC. 107. TELEVISION BROADCASTING TO CUBA.
(a) Conversion to UHF.--The Director of the United States
Information Agency shall implement a conversion of television
broadcasting to Cuba under the Television Marti Service to
ultra high frequency (UHF) broadcasting.
(b) Periodic Reports.--Not later than 45 days after the
date of enactment of this Act, and every three months
thereafter until the conversion described in subsection (a)
is fully implemented, the Director shall submit a report to
the appropriate congressional committees on the progress made
in carrying out subsection (a).
SEC. 108. REPORTS ON COMMERCE WITH, AND ASSISTANCE TO, CUBA
FROM OTHER FOREIGN COUNTRIES.
(a) Reports Required.--Not later than 90 days after the
date of enactment of this Act, and every year thereafter, the
President shall submit a report to the appropriate
congressional committees on commerce with, and assistance to,
Cuba from other foreign countries during the preceding 12-
month period.
(b) Contents of Reports.--Each report required by
subsection (a) shall, for the period covered by the report,
contain--
(1) a description of all bilateral assistance provided to
Cuba by other foreign countries, including humanitarian
assistance;
(2) a description of Cuba's commerce with foreign
countries, including an identification of Cuba's trading
partners and the extent of such trade;
(3) a description of the joint ventures completed, or under
consideration, by foreign nationals and business firms
involving facilities in Cuba, including an identification of
the location of the facilities involved and a description of
the terms of agreement of the joint ventures and the names of
the parties that are involved;
(4) a determination as to whether or not any of the
facilities described in paragraph (3) is the subject of a
claim against Cuba by a United States person;
(5) a determination of the amount of Cuban debt owed to
each foreign country, including the amount of debt exchanged,
forgiven, or reduced under the terms of each investment or
operation in Cuba involving foreign nationals or businesses;
and
(6) a description of the steps taken to assure that raw
materials and semifinished or finished goods produced by
facilities in Cuba involving foreign nationals or businesses
do not enter the United States market, either directly or
through third countries or parties.
SEC. 109. IMPORTATION SANCTION AGAINST CERTAIN CUBAN TRADING
PARTNERS.
(a) Sanction.--Notwithstanding any other provision of law,
sugars, syrups, and molasses, that are the product of a
country that the President determines has imported sugar,
syrup, or molasses that is the product of Cuba, shall not be
entered, or withdrawn from warehouse for consumption, into
the customs territory of the United States, unless the
condition set forth in subsection (b) is met.
(b) Condition for Removal of Sanction.--The sanction set
forth in subsection (a) shall cease to apply to a country if
the country certifies to the President that the country will
not import sugar, syrup, or molasses that is the product of
Cuba until free and fair elections, conducted under the
supervision of internationally recognized observers, are held
in Cuba. Such certification shall cease to be effective if
the President makes a subsequent determination under
subsection (a) with respect to that country.
(c) Reports to Congress.--The President shall report to the
appropriate congressional committees all determinations made
under subsection (a) and all certifications made under
subsection (b).
(d) Reallocation of Sugar Quotas.--During any period in
which a sanction under subsection (a) is in effect with
respect to a country, the President may reallocate to other
countries the quota of sugars, syrups, and molasses allocated
to that country, before the prohibition went into effect,
under chapter 17 of the Harmonized Tariff Schedule of the
United States.
TITLE II--SUPPORT FOR A FREE AND INDEPENDENT CUBA
SEC. 201. POLICY TOWARD A TRANSITION GOVERNMENT AND A
DEMOCRATICALLY ELECTED GOVERNMENT IN CUBA.
It is the policy of the United States--
(1) to support the self-determination of the Cuban people;
(2) to facilitate a peaceful transition to representative
democracy and a free market economy in Cuba;
(3) to be impartial toward any individual or entity in the
selection by the Cuban people of their future government;
(4) to enter into negotiations with a democratically
elected government in Cuba regarding the status of the United
States Naval Base at Guantanamo Bay;
(5) to restore diplomatic relations with Cuba, and support
the reintegration of Cuba into entities of the Inter-American
System, when the President determines that there exists a
democratically elected government in Cuba;
(6) to remove the economic embargo of Cuba when the
President determines that
[[Page S2414]] there exists a democratically elected
government in Cuba; and
(7) to pursue a mutually beneficial trading relationship
with a democratic Cuba.
SEC. 202. AUTHORIZATION OF ASSISTANCE FOR THE CUBAN PEOPLE.
(a) Authorization.--
(1) In general.--The President may provide assistance under
this section for the Cuban people after a transition
government, or a democratically elected government, is in
power in Cuba, as determined under section 203 (a) and (c).
(2) Effect on other laws.--
(A) Superseding other laws.--Subject to subparagraph (B),
assistance may be provided under this section notwithstanding
any other provision of law.
(B) Determination required regarding property taken from
united states persons.--Subparagraph (A) shall not apply to
section 620(a)(2) of the Foreign Assistance Act of 1961 (22
U.S.C. 2370(a)(2)).
(b) Response Plan.--
(1) Development of plan.--The President shall develop a
plan detailing the manner in which the United States would
provide and implement support for the Cuban people in
response to the formation of--
(A) a transition government in Cuba; and
(B) a democratically elected government in Cuba.
(2) Types of assistance.--Support for the Cuban people
under the plan described in paragraph (1) shall include the
following types of assistance:
(A) Transition government.--Assistance under the plan to a
transition government in Cuba shall be limited to such food,
medicine, medical supplies and equipment, and other
assistance as may be necessary to meet emergency humanitarian
needs of the Cuban people.
(B) Democratically elected government.--Assistance under
the plan for a democratically elected government in Cuba
shall consist of assistance to promote free market
development, private enterprise, and a mutually beneficial
trade relationship between the United States and Cuba. Such
assistance should include--
(i) financing, guarantees, and other assistance provided by
the Export-Import Bank of the United States;
(ii) insurance, guarantees, and other assistance provided
by the Overseas Private Investment Corporation for investment
projects in Cuba;
(iii) assistance provided by the Trade and Development
Agency;
(iv) international narcotics control assistance provided
under chapter 8 of part I of the Foreign Assistance Act of
1961; and
(v) Peace Corps activities.
(c) Caribbean Basin Initiative.--(1) The President shall
determine, as part of the plan developed under subsection
(b), whether or not to designate Cuba as a beneficiary
country under section 212 of the Caribbean Basin Economic
Recovery Act.
(2) Any designation of Cuba as a beneficiary country under
section 212 of such Act may only be made after a
democratically elected government in Cuba is in power. Such
designation may be made notwithstanding any other provision
of law.
(3) The table contained in section 212(b) of the Caribbean
Basin Economic Recovery Act (19 U.S.C. 2702(b)) is amended by
inserting ``Cuba'' between ``Costa Rica'' and ``Dominica''.
(d) Trade Agreements.--Notwithstanding any other provision
of law, the President, upon transmittal to Congress of a
determination under section 203(c) that a democratically
elected government in Cuba is in power, should--
(1) take the steps necessary to extend nondiscriminatory
trade treatment (most-favored-nation status) to the products
of Cuba; and
(2) take such other steps as will encourage renewed
investment in Cuba.
(e) Communication With the Cuban People.--The President
should take the necessary steps to communicate to the Cuban
people the plan developed under this section.
(f) Report to Congress.--Not later than 180 days after the
date of the enactment of this Act, the President shall
transmit to the appropriate congressional committees a report
describing in detail the plan developed under this section.
SEC. 203. IMPLEMENTATION; REPORTS TO CONGRESS.
(a) Implementation With Respect to Transition Government.--
Upon making a determination that a transition government in
Cuba is in power, the President shall transmit that
determination to the appropriate congressional committees and
should, subject to the availability of appropriations,
commence the provision of assistance to such transition
government under the plan developed under section 202(b).
(b) Reports to Congress.--(1) The President shall transmit
to the appropriate congressional committees a report setting
forth the strategy for providing assistance described in
section 202(b)(2)(A) to the transition government in Cuba
under the plan of assistance developed under section 202(b),
the types of such assistance, and the extent to which such
assistance has been distributed in accordance with the plan.
(2) The President shall transmit the report not later than
90 days after making the determination referred to in
paragraph (1), except that the President shall transmit the
report in preliminary form not later than 15 days after
making that determination.
(c) Implementation With Respect to Democratically Elected
Government.--The President shall, upon determining that a
democratically elected government in Cuba is in power,
transmit that determination to the appropriate congressional
committees and should, subject to the availability of
appropriations, commence the provision of assistance to such
democratically elected government under the plan developed
under section 202(b)(2)(B).
(d) Annual Reports to Congress.--Not later than 60 days
after the end of each fiscal year, the President shall
transmit to the appropriate congressional committees a report
on the assistance provided under the plan developed under
section 202(b), including a description of each type of
assistance, the amounts expended for such assistance, and a
description of the assistance to be provided under the plan
in the current fiscal year.
SEC. 204. TERMINATION OF THE ECONOMIC EMBARGO OF CUBA.
(a) Termination.--Upon the effective date of this section--
(1) section 620(a) of the Foreign Assistance Act of 1961
(22 U.S.C. 2370(a)) is repealed;
(2) section 620(f) of the Foreign Assistance Act of 1961
(22 U.S.C. 2370(f)) is amended by striking ``Republic of
Cuba'';
(3) the prohibitions on transactions described in part 515
of title 31, Code of Federal Regulations, shall cease to
apply; and
(4) the President shall take such other steps as may be
necessary to rescind any other regulations in effect under
the economic embargo of Cuba.
(b) Effective Date.--This section shall take effect upon
transmittal to Congress of a determination under section
203(c) that a democratically elected government in Cuba is in
power.
SEC. 205. REQUIREMENTS FOR A TRANSITION GOVERNMENT.
For purposes of this Act, a transition government in Cuba
is a government in Cuba that--
(1) is demonstrably in transition from communist
totalitarian dictatorship to representative democracy;
(2) has released all political prisoners and allowed for
investigations of Cuban prisons by appropriate international
human rights organizations;
(3) has dissolved the present Department of State Security
in the Cuban Ministry of the Interior, including the
Committees for the Defense of the Revolution and the Rapid
Response Brigades;
(4) has publicly committed itself to, and is making
demonstrable progress in--
(A) establishing an independent judiciary;
(B) respecting internationally recognized human rights and
basic freedoms as set forth in the Universal Declaration of
Human Rights, to which Cuba is a signatory nation;
(C) effectively guaranteeing the rights of free speech and
freedom of the press;
(D) permitting the reinstatement of citizenship to Cuban-
born nationals returning to Cuba;
(E) organizing free and fair elections for a new
government--
(i) to be held within 1 year after the transition
government assumes power;
(ii) with the participation of multiple independent
political parties that have full access to the media on an
equal basis, including (in the case of radio, television, or
other telecommunications media) in terms of allotments of
time for such access and the times of day such allotments are
given; and
(iii) to be conducted under the supervision of
internationally recognized observers, such as the
Organization of American States, the United Nations, and
other elections monitors;
(F) assuring the right to private property;
(G) taking appropriate steps to return to United States
citizens and entities property taken by the Government of
Cuba from such citizens and entities on or after January 1,
1959, or to provide equitable compensation to such citizens
and entities for such property;
(H) having a currency that is fully convertible
domestically and internationally;
(I) granting permits to privately owned telecommunications
and media companies to operate in Cuba; and
(J) allowing the establishment of an independent labor
movement and of independent social, economic, and political
associations;
(5) does not include Fidel Castro or Raul Castro;
(6) has given adequate assurances that it will allow the
speedy and efficient distribution of assistance to the Cuban
people; and
(7) permits the deployment throughout Cuba of independent
and unfettered international human rights monitors.
SEC. 206. REQUIREMENTS FOR A DEMOCRATICALLY ELECTED
GOVERNMENT.
For purposes of this Act, a democratically elected
government in Cuba, in addition to continuing to comply with
the requirements of section 205, is a government in Cuba
which--
(1) results from free and fair elections--
(A) conducted under the supervision of internationally
recognized observers;
(B) in which opposition parties were permitted ample time
to organize and campaign for such elections, and in which all
candidates in the elections were permitted full access to the
media;
(2) is showing respect for the basic civil liberties and
human rights of the citizens of Cuba;
(3) has established an independent judiciary;
[[Page S2415]] (4) is substantially moving toward a market-
oriented economic system based on the right to own and enjoy
property;
(5) is committed to making constitutional changes that
would ensure regular free and fair elections that meet the
requirements of paragraph (2); and
(6) has returned to United States citizens, and entities
which are 50 percent or more beneficially owned by United
States citizens, property taken by the Government of Cuba
from such citizens and entities on or after January 1, 1959,
or provided full compensation in accordance with
international law standards and practice to such citizens and
entities for such property.
TITLE III--PROTECTION OF AMERICAN PROPERTY RIGHTS ABROAD
SEC. 301. EXCLUSION FROM THE UNITED STATES OF ALIENS WHO HAVE
CONFISCATED PROPERTY CLAIMED BY UNITED STATES
PERSONS.
(a) Additional Grounds for Exclusion.--Section 212(a)(9) of
the Immigration and Nationality Act (8 U.S.C. 1182(a)) is
amended by adding at the end the following:
``(D) Aliens who have confiscated american property abroad
and related persons.--(i) Any alien who--
``(I) has confiscated, or has directed or overseen the
confiscation of, property the claim to which is owned by a
United States person, or converts or has converted for
personal gain confiscated property, the claim to which is
owned by a United States person;
``(II) traffics in confiscated property, the claim to which
is owned by a United States person;
``(III) is a corporate officer, principal, or shareholder
of an entity which the Secretary of State determines or is
informed by competent authority has been involved in the
confiscation, trafficking in, or subsequent unauthorized use
or benefit from confiscated property, the claim to which is
owned by a United States person, or
``(IV) is a spouse or dependent of a person described in
subclause (I),
is excludable.
``(ii) The validity of claims under this subparagraph shall
be established in accordance with section 303 of the Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1995.
``(iii) For purposes of this subparagraph, the terms
`confiscated', `traffics', and `United States person' have
the same meanings given to such terms under section 4 of the
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of
1995.''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply to individuals seeking to enter the United States
on or after the date of enactment of this Act.
SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY
CLAIMED BY UNITED STATES PERSONS.
(a) Civil Remedy.--(1) Except as provided in paragraphs (2)
and (3), any person or government that traffics in property
confiscated by a foreign government shall be liable to the
United States person who owns the claim to the confiscated
property for money damages in an amount which is the greater
of--
(A) the amount certified by the Foreign Claims Settlement
Commission under title V of the International Claims
Settlement Act of 1949, plus interest at the commercially
recognized normal rate;
(B) the amount determined under section 303(a)(2); or
(C) the fair market value of that property, calculated as
being the then current value of the property, or the value of
the property when confiscated plus interest at the
commercially recognized normal rate, whichever is greater.
(2) Except as provided in paragraph (3), any person or
government that traffics in confiscated property after having
received (A) notice of a claim to ownership of the property
by the United States person who owns the claim to the
confiscated property, and (B) a copy of this section, shall
be liable to such United States person for money damages in
an amount which is treble the amount specified in paragraph
(1).
(3)(A) Actions may be brought under paragraph (1) with
respect to property confiscated before, on, or after the date
of enactment of this Act.
(B) In the case of property confiscated before the date of
enactment of this Act, no United States person may bring an
action under this section unless such person acquired
ownership of the claim to the confiscated property before
such date.
(C) In the case of property confiscated on or after the
date of enactment of this Act, in order to maintain the
action, the United States person who is the plaintiff must
demonstrate to the court that the plaintiff has taken
reasonable steps to exhaust all available local remedies.
(b) Jurisdiction.--Chapter 85 of title 28, United States
Code, is amended by inserting after section 1331 the
following new section:
``Sec. 1331a. Civil actions involving confiscated property
``The district courts shall have exclusive jurisdiction,
without regard to the amount in controversy, of any action
brought under section 302 of the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1995.''.
(c) Waiver of Sovereign Immunity.--Section 1605 of title
28, United States Code, is amended--
(1) by striking ``or'' at the end of paragraph (5);
(2) by striking the period at the end of paragraph (6) and
inserting ``; or''; and
(3) by adding at the end the following:
``(7) in which the action is brought with respect to
confiscated property under section 302 of the Cuban Liberty
and Democratic Solidarity (LIBERTAD) Act of 1995.''.
SEC. 303. DETERMINATION OF CLAIMS TO CONFISCATED PROPERTY.
(a) Evidence of Ownership.--For purposes of this Act,
conclusive evidence of ownership by the United States person
of a claim to confiscated property is established--
(1) when the Foreign Claims Settlement Commission certifies
the claim under title V of the International Claims
Settlement Act of 1949, as amended by subsection (b); or
(2) when the claim has been determined to be valid by a
court or administrative agency of the country in which the
property was confiscated.
(b) Amendment of the International Claims Settlement Act of
1949.--Title V of the International Claims Settlement Act of
1949 is amended by adding at the end the following new
section:
``ADDITIONAL CLAIMS
``Sec. 514. Notwithstanding any other provision of this
title, a United States national may bring a claim to the
Commission for determination and certification under this
title of the amount and validity of a claim resulting from
actions taken by the Government of Cuba described in section
503(a), whether or not the United States national qualified
as a United States national at the time of the Cuban
government action, except that, in the case of property
confiscated after the date of enactment of this section, the
claimant must be a United States national at the time of the
confiscation.''.
(c) Conforming Repeal.--Section 510 of the International
Claims Settlement Act of 1949 (22 U.S.C. 1643i) is repealed.
____
Section-by-Section Analysis
Section 1. Short Title and Table of Contents
Section 2. Findings
Details findings regarding Cuba, including the decline of
the Cuban economy, the substantial deterioration of the
health and welfare of the Cuban people, Castro's refusal to
adopt any economic or political reforms, and the continuing
repression of the Cuban people.
Section 3. Purposes
States general purposes of the Act, including strengthening
international sanctions against the Castro government,
encouraging the holding of free and fair elections, providing
a policy framework for U.S. support to a transition
government and a democratically-elected government in Cuba,
and protecting the rights of U.S. persons who own claims to
confiscated property abroad.
Section 4. Definitions
Defines terms used in this Act.
title i: strengthening international sanctions against the castro
government
Section 101. Statement of Policy
Expresses the sense of Congress that (1) the acts of the
Castro government, including human rights violations, are a
threat to international peace, (2) the President should
instruct the U.S. Permanent Representative to the United
Nations to seek, in the Security Council, an international
embargo against the Castro dictatorship (similar to
consultations conducted with respect to Haiti), and (3) there
will be a detrimental impact on United States assistance to
any independent state of the former Soviet Union which
resumes efforts to make operational the nuclear facility at
Cienfuegos, Cuba.
Section 102. Enforcement of the Economic Embargo of Cuba
(a) Reaffirms the Cuban Democracy Act of 1992 [section
1704(a)], which states that the President should encourage
foreign countries to restrict trade and credit relations with
Cuba, and urges the President to take immediate steps to
apply sanctions described in section 1704(b)(1) of such Act
against countries assisting Cuba.
(b) Calls on the Secretary of State to direct U.S.
diplomatic personnel to communicate to foreign officials the
reasons for the U.S. economic embargo on Cuba and to urge
foreign governments to cooperate more effectively with the
embargo.
(c) Requires the President to instruct the Secretary of the
Treasury and Attorney General to fully enforce the Cuban
Assets Control Regulations.
(d) Subjects to criminal penalties under the Trading with
the Enemy Act persons violating travel restrictions imposed
by the Cuban Assets Control Regulations (part 515 of title
31, Code of Federal Regulations). Penalties include fines
and/or imprisonment of a person or official of a corporation.
Section 103. Prohibition Against Indirect Financing of Cuba
(a) Prohibits any loans, credits, or other financing from a
U.S. person or agency to a foreign person who knowingly
purchases a U.S. property confiscated by the Cuban
government.
(b) Terminates this prohibition on the date of termination
of the economic embargo of Cuba.
(c) Makes violations of this provision punishable by the
same penalties that are applicable to similar violations of
the Cuban Assets Control Regulations.
Section 104. United States Opposition to Cuban Membership in
International Financial Institutions
(a) Requires the Secretary of the Treasury to instruct the
U.S. executive director of
[[Page S2416]] each international financial institution to
vote against the admission of Cuba as a member until Cuba has
held free and fair internationally supervised elections.
(b) Directs the President to take steps during the period
that a transition government is in power in Cuba to support
the processing of Cuba's application for membership in any
international financial institution, to take effect after a
democratically-elected government is in power in Cuba.
(c) Requires the United States to withhold payment to any
international financial institution that approves a loan or
other assistance to Cuba in an amount equal to the amount of
the loan or assistance provided to Cuba.
Section 105. United States Opposition to Readmission of Cuba to the
Organization of American States (OAS)
States that the President should instruct the U.S.
Permanent Representative to the OAS to vote against the
readmission of Cuba to membership in the OAS until a
democratically-elected government exits in Cuba.
Section 106. Assistance by the Independent States of the Former Soviet
Union for the Government of Cuba
(a) Requires the President to submit to Congress a report
detailing progress towards the withdrawal of personnel of any
independent state of the former Soviet Union [including
advisers, technicians, and military personnel] from the
Cienfuegos nuclear facility in Cuba.
(b) Amends the criteria for providing U.S. assistance to
the independent states of the former Soviet Union to specify
that the President shall take into account the extent to
which a state is
acting to close military and intelligence facilities in
Cuba, including the military and intelligence facilities
at Lourdes and Cienfuegos. [Section 498(a)(11) of the
Foreign Assistance Act currently does not mention
intelligence facilities or specify the facilities at
Lourdes and Cienfuegos].
(c) Prohibits the President from providing assistance for
the government of any independent state that the President
has determined and certified to Congress is providing
assistance for, or engaging in nonmarket based trade with,
the Government of Cuba. Nonmarket based trade includes
exports, imports, exchanges, or other arrangements that are
provided for goods and services on terms more favorable than
those generally available in applicable markets or for
comparable commodities.
(d) Express strong disapproval by Congress for $200,000,000
in credits from Russia to Cuba in support of the intelligence
facility at Lourdes, Cuba, and requires the President to
withhold assistance to any state of the former Soviet Union
in an amount equal to the sum of such state's assistance and
credits for military and intelligence facilities in Cuba.
Funding for Nunn-Lugar denuclearization programs and
humanitarian assistance is exempt.
Section 107. Television Broadcasting to Cuba.
Instructs the Director of USIA to implement the conversion
of Television Marti to Ultra-High Frequency (UHF)
broadcasting, and to submit quarterly reports to Congress on
progress made in carrying out the conversion until it is
fully implemented.
Section 108. Reports on Commerce with and Assistance to Cuba from
Foreign Countries
Directs the President to submit an annual report to
Congress on assistance to and commerce with Cuba from foreign
countries. Each report shall contain: (1) a description of
all bilateral assistance, including humanitarian assistance;
(2) identification of Cuba's trading partners and the extent
of such trade; (3) a description of joint ventures completed
or under consideration by foreign nationals and business
firms involving facilities in Cuba; (4) a determination as to
whether any facilities are claimed by a U.S. person; (5) a
determination of the amount of Cuban debt owed to each
foreign country and business, including the amount of debt
exchanged, forgiven, or reduced; and (6) steps taken to
assure that raw materials and semi-finished or finished goods
produced by facilities in Cuba involving foreign nationals or
businesses are not entering the U.S. market.
Section 109. Importation Sanction Against Certain Cuban Trading
Partners
(a) Prohibits importation into the United States of any
sugars, syrups, or molasses that are the product of a country
that the President determines has imported sugar, syrup, or
molasses from Cuba. The intent of this section is to prevent
indirect support of the Cuban sugar industry through
countries that buy
Cuban sugar for either domestic consumption or reprocessing
for export and sell their own or the reprocessed sugar to
the United States.
(b) Provides for the removal of the sanction in subsection
(a) if the country certifies to the President that the
country will not import sugar, syrup, or molasses that is the
product of Cuba until free and fair elections are held in
Cuba. Such a certification would cease to apply if the
President makes a subsequent certification under subsection
(a).
(c) Instructs the President to report to Congress all
determinations in subsections (a) and (b).
(d) Allows the President to reallocate to other countries
the quota of sugars, syrups, and molasses allocated to a
country subject to sanction under subsection (a).
title ii: support for a free and independent cuba
Section 201. Policy Toward a Transition Government and a
Democratically-Elected Government
States that U.S. policy is to: (1) support the self-
determination of the Cuban people; (2) facilitate a peaceful
transition to representative democracy and a free market
economy in Cuba; and (3) be impartial toward any individual
or entity in the selection by the Cuban people of their
future government. Once the President has determined that a
democratically-elected government exists in Cuba, the U.S.
policy shall be to: (4) enter into negotiations regarding the
status of the U.S. Naval Base at Guantanamo; (5) restore
diplomatic recognition and support the reintegration of Cuba
into entities of the Inter-American System; (6) remove the
economic embargo; and (7) pursue a mutually beneficial
trading relationship.
Section 202. Authorization of Assistance for the Cuban People
(a) Authorizes the President to provide assistance for the
Cuban people after a transition government or a
democratically-elected government is in power in Cuba, as
determined under section 203. Assistance may be provided
under this section notwithstanding any other provision of
law, except that no assistance may be given until the
President determines that a transition or democratically
elected Cuban government has ``taken appropriate steps
according to international law standards'' to return or
compensate for property taken from US citizens and entities
on or after January 1, 1959 [section 620(a)(2) of the Foreign
Assistance Act of 1961 (22 U.S.C. 2379(a)(2))].
(b)(1) Directs the President to develop a plan detailing
the manner in which the United States would provide
assistance to the Cuban people in response to the formation
of a transition and a democratically-elected government in
Cuba.
(2) Limits assistance to a transition government to such
food, medicine, medical supplies and equipment, and other
assistance as may be necessary to meet the humanitarian needs
of the Cuban people.
(3) Specifies that assistance under the plan for a
democratically-elected government shall consist of assistance
to promote free market development, private enterprise, and
mutually beneficial trade; such assistance should include
assistance provided by the Export-Import Bank, the Overseas
Private Investment Corporation, and the Trade and Development
Agency, international narcotics control assistance, and Peace
Corps activities.
(c) Requires the President to determine as part of the
assistance plan whether to designate Cuba as a beneficiary
country under section 212 of the Caribbean Basic Economic
Recovery Act once a democratically-elected government is in
power in Cuba.
(d) Authorizes the President, upon determining that a
democratically-elected government is in power in Cuba, to
extend most-favored-nation (MFN) status to Cuba and to
otherwise encourage renewed investment in Cuba,
notwithstanding any other provision of law.
(e) Directs the President to take the necessary steps to
communicate this plan to the Cuban people.
(f) Requires the President to transmit to Congress, not
later than 180 days after the enactment of this Act, a
detailed report on the plan developed under this section.
Section 203. Implementation; Reports to Congress
(a) Authorizes the President to begin assistance to Cuba
upon transmittal to Congress of a determination that a
transition government is in power in Cuba.
(b) Requires the President to transmit to Congress a
preliminary report, within 15 days of such a determination,
setting forth the strategy and implementation of assistance,
followed by a full report not later than 90 days after making
the determination.
(c) Authorizes the President to begin assistance to Cuba
upon transmittal to Congress of a determination that a
democratically-elected government is in power in Cuba.
(d) Requires an annual report, within 60 days of the end of
each fiscal year, on the assistance to be provided under the
plan developed under section 202(b) and the assistance to be
provided in the current fiscal year.
Section 204. Termination of the Economic Embargo on Cuba
Terminates the economic embargo on Cuba upon transmittal to
Congress of a presidential determination that a
democratically-elected government is in power in Cuba.
Section 205. Requirements for a Transition Government
Defines a transition government in Cuba as one which (1) is
demonstrably in transition from communist totalitarian
dictatorship to democracy; (2) has released all political
prisoners; (3) has dissolved the present Department of State
Security in the Cuban Ministry of the Interior; and (4) also
``makes public commitments'' to (A) establishing an
independent judiciary, (B) respecting internationally
recognized human rights and basic freedoms, (C) guaranteeing
the rights of free speech and freedom of the press,
(D) permitting the reinstatement of citizenship to Cuban-
born nationals returning to Cuba, (E) organizing free and
fair elections for a new government, (F) assuring the
right to private property, (G) taking appropriate steps
either to return to U.S. citizens property taken by the
government of Cuba on or after January 1, 1959 or to
provide equitable
[[Page S2417]] compensation to U.S. citizens for such
property, (H) having a currency that is fully convertible
domestically and internationally, (I) granting permits to
privately-owned telecommunications and media companies to
operate in Cuba, and (J) allowing the establishment of an
independent labor movement and of independent social,
economic, and political associations. Other provisions
include that the transition government: (5) does not include
Fidel Castro or Raul Castro; (6) has given adequate
assurances that it will allow the speedy and efficient
distribution of assistance to the Cuban people; and (7)
permits the deployment throughout Cuba of independent and
unfettered international human rights monitors.
Section 206. Requirements for a Democratically-Elected Government
Defines a democratic government in Cuba as one which, in
addition to the requirements in section 205, (1) is the
product of free and fair elections in which opposition
parties had sufficient time to organize and were permitted
full access to media; (2) is showing respect for basic civil
liberties and human rights; (3) has established an
independent judiciary; (4) is moving toward a market-oriented
economic system based on the right to own and enjoy property;
(5) is committed to making constitutional changes that would
ensure regular free and fair elections; and (6) has returned
to U.S. citizens, and entities which are 50 percent or more
beneficially-owned by U.S. citizens, property taken by the
Government of Cuba from such citizens and entities on or
after January 1, 1959, or provides full compensation in
accordance with international law standards.
TITLE III: PROTECTION OF AMERICAN PROPERTY RIGHTS ABROAD
Section 301. Exclusion from the United States of Aliens Who Have
Confiscated Property Claimed by United States Persons
Denies entry into the United States to any alien (including
a spouse or dependent of that person) who has confiscated,
has directed, or has overseen the confiscation, of U.S.
property abroad. This provision is applicable to corporate
officers, principals, or shareholders of an entity that has
been involved in the confiscation, purchase, or receipt of a
confiscated property.
Section 302. Liability for Trafficking in Confiscated Property Claimed
by United States Persons
(a) Holds any person or government which traffics in
property confiscated by a foreign government liable for money
damages to the U.S. claimant of the confiscated property.
Treble damages are authorized in cases where the person or
government trafficking in confiscated property has received
notice of a U.S. person's claim of ownership. If property was
confiscated before the date of enactment of this Act, no U.S.
person may bring an action unless such person acquired
ownership of the claim to the confiscated property before
such date. If a property is confiscated on or after the date
of enactment of this Act, the U.S. person who is the
plaintiff must demonstrate to the court that the plaintiff
has taken reasonable steps to exhaust all available local
remedies.
(b) Gives Federal district courts exclusive jurisdiction
over any actions brought under this section.
(c) Waives sovereign immunity for any actions brought under
this section.
Section 303. Determination of Claims to Confiscated Property
(a) Provides that conclusive evidence of ownership by a
U.S. person to confiscated property is established when the
Foreign Claims Settlement Commission certifies the claim or
when the claim has been determined valid by a court or
administrative agency in the country in which the property
was confiscated.
(b) Amends the International Claims Settlement Act to allow
a U.S. national to bring a claim to the Commission for
determination and certification of the amount and validity of
a claim against the Cuban government of confiscation of
property.
______
By Mr. DASCHLE (for himself, Mr. Pressler, Mr. Campbell, Mr.
Simon, Mr. Pell, and Mr. Dorgan):
S. 382. A bill to establish a Wounded Knee National Tribal Park, and
for other purposes; to the Committee on Indian Affairs.
the wounded knee national tribal park establishment act of 1995
Mr. DASCHLE. Mr. President, today I am joining with my colleague from
South Dakota, Senator Pressler, and Senators Campbell, Simon, Pell, and
Dorgan to introduce legislation that would establish the Wounded Knee
National Tribal Park in the State of South Dakota. The purpose of this
effort is to acknowledge the armed struggle between the Plains Indians
and the U.S. Army that culminated in the death of over 300 Lakota Sioux
men, women, and children at Wounded Knee, SD, on December 29, 1890.
There is no question about the historical significance of the Wounded
Knee tragedy. Wounded Knee not only signaled an end to a chapter in
American history often referred to as the ``Indian Wars'' but it also
marked a change in national policy that once forced Indian tribes to
locate on smaller and smaller reservations.
History books show that on December 15, 1890, Federal agents,
concerned about the potential ramifications of a spiritual movement
among the Sioux Indians, attempted to arrest Chief Sitting Bull. When
one of his followers shot at the agents, they returned gunfire,
mortally wounding Sitting Bull.
Sitting Bull's half-brother, Chief Big Foot, took in Sitting Bull's
followers. The band fled from the Bad Lands toward the Pine Ridge
Indian Reservation. The U.S. Army intercepted the party and accepted an
unconditional surrender from Chief Big Foot. The entire band was
escorted to a military camp at Wounded Knee Creek.
At Wounded Knee, a single gunshot was fired. It is not known to this
day whether the shot was fired by a member of the Sioux Tribe or the
U.S. Army. What is known is that the gunshot led to a largely one-side
volley of bullets leaving approximately 350 to 370 Sioux men, women,
and children dead or wounded. The U.S. Army suffered 60 casualties,
many of whom reportedly were hit by bullets fired by their comrades.
These are the tragic facts of what is known as the Wounded Knee
Massacre. One hundred years later, in 1990, the 101st Congress passed
Senate Concurrent Resolution 153, which acknowledged the carnage at
Wounded Knee and expressed ``congressional support for the
establishment of a suitable and appropriate memorial to those who were
tragically slain at Wounded Knee.''
The bill we are introducing today gives substance to the sentiment
expressed by the resolution.
Mr. President, considerable time and thought has been given to the
Wounded Knee memorial project by descendants of the victims and
survivors of the Wounded Knee tragedy, by the Oglala Sioux and the
Cheyenne River Sioux tribal governments, and by Members of Congress,
the State of South Dakota, and the Department of the Interior.
The effort to establish a memorial goes back even further than 1990.
Since 1950, Wounded Knee has been studied six times by the National
Park Service and has been identified as a prime candidate for addition
to the National Park System. Since 1987, the Lakota Tribes of South
Dakota have been working with the National Park Service to plan for the
preservation of Wounded Knee.
In Congress, the Senate Indian Affairs Committee held hearings on
proposals to establish a
Wounded Knee Memorial and Historic Site on September 25, 1990 in
Washington, and on April 30, 1991 at the Pine Ridge Indian Reservation
in South Dakota.
In May 1991, at the request of the Lakota Sioux and with the support
of the Secretary of the Interior, the National Park Service began to
explore management alternatives for the Wounded Knee site. The process
included strong public participation from the Oglala Sioux Tribe, the
Cheyenne River Sioux Tribe, and the Wounded Knee Survivors Association.
Those hearings enabled all the parties involved to discover much
common ground and strengthened our shared resolve to move forward with
the establishment of the Wounded Knee National Tribal Park.
The step we are taking today is not an end, but a beginning.
Many issues remain to be addressed, including land acquisition for
the Wounded Knee National Park, design of the memorial, and management
of the National Tribal Park. I welcome debate on these and other
matters, and look forward to participation in the debate.
By passing this legislation, we will clear the way for resolution of
those issues. More important, we will preserve for future generations
an important chapter from the text of America's past.
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. 382
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S2418]] SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wounded Knee National Tribal
Park Establishment Act of 1995''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) in December of 1890, approximately 350 to 375 Sioux
men, women, and children under the leadership of Chief Big
Foot journeyed from the Cheyenne River Indian Reservation to
the Pine Ridge Indian Reservation at the invitation of Chief
Red Cloud to help make peace between the non-Indians and
Indians;
(2) the journey of Chief Big Foot and his band of
Minneconjou Sioux occurred during the Ghost Dance Religion
period when extreme hostility existed between Sioux Indians
and non-Indians residing near the Sioux reservations, and the
United States Army assumed control of the Sioux reservations;
(3) Chief Big Foot and his band were intercepted on the
Pine Ridge Indian Reservation at Porcupine Butte by Major
Whitside, surrendered unconditionally under a white flag of
truce, and were escorted to Wounded Knee Creek, where Colonel
Forsyth assumed command;
(4) on December 29, 1890, an incident occurred in which
soldiers under the command of General Forsyth killed and
wounded over 300 members of the band of Chief Big Foot, most
all of whom were unarmed and entitled to protection of their
rights to property, person, and life under Federal law;
(5) the 1890 Wounded Knee Massacre is a historically
significant event because the event marks the last military
encounter of the Indian wars period of the 19th century;
(6) in S. Con. Res. 153 (101st Cong., 2d Sess.), Congress
apologized to the Sioux people for the 1890 Massacre;
(7)(A) paragraph (2) of such concurrent resolution provides
that Congress ``expresses its support for the establishment
of a suitable and appropriate Memorial to those who were so
tragically slain at Wounded Knee which could inform the
American public of the historic significance of the events at
Wounded Knee and accurately portray the heroic and courageous
campaign waged by the Sioux people to preserve and protect
their lands and their way of life during this period''; and
(B) paragraph (3) of such concurrent resolution provides
that Congress ``expresses its commitment to acknowledge and
learn from our history, including the Wounded Knee Massacre,
in order to provide a proper foundation for building an ever
more humane, enlightened, and just society for the future'';
(8) the Wounded Knee Massacre site, and sites relating to
the 1890 Wounded Knee Massacre and Ghost Dance Religion on
the Cheyenne River Indian Reservation and Pine Ridge Indian
Reservation, are nationally significant cultural and historic
sites that must be protected through the designation of the
sites as a national tribal park; and
(9) the Wounded Knee Massacre is a nationally significant
event that must be memorialized by establishing suitable and
appropriate memorials to the Indian victims of the Massacre,
located on the Cheyenne River Indian Reservation and Pine
Ridge Indian Reservation.
(b) Purposes.--The purposes of this Act are to--
(1) establish the Wounded Knee National Tribal Park
consisting of--
(A) sites relating to the 1890 Wounded Knee Massacre and
Ghost Dance Religion located on the Cheyenne River Indian
Reservation; and
(B) the 1890 Wounded Knee Massacre Site and sites relating
to the Massacre and Ghost Dance Religion located on the Pine
Ridge Indian Reservation;
(2) establish suitable and appropriate national monuments
within both units of the Wounded Knee National Tribal Park to
memorialize the Indian victims of the 1890 Wounded Knee
Massacre; and
(3) authorize feasibility studies to--
(A) establish the route of Chief Big Foot from the Cheyenne
River Indian Reservation to Wounded Knee as a national
historic trail; and
(B) establish a visitor information and orientation center
on the Cheyenne River Indian Reservation.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Commission.--The term ``Commission'' means the Wounded
Knee National Tribal Park Advisory Commission established
under section 8(a).
(2) North unit.--The term ``North Unit'' means the area of
the Park comprised of the sites referred to in section
2(b)(1)(A).
(3) Park.--The term ``Park'' means the Wounded Knee
National Tribal Park established under section 4.
(4) Real property.--For the purposes of this Act, the term
``real property'' includes lands, and all mineral rights,
water rights, easements, permanent structures, and fixtures
on such lands.
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(6) South unit.--The term ``South Unit'' means the area of
the Park comprised of the sites referred to in section
2(b)(1)(B).
SEC. 4. ESTABLISHMENT OF WOUNDED KNEE NATIONAL TRIBAL PARK.
(a) Establishment.--
(1) In general.--The Secretary shall establish a national
tribal park to be known as the ``Wounded Knee National Tribal
Park'', as generally described in the third alternative of
the report completed by the National Park Service entitled
``Draft Study of Alternatives, Environmental Assessment,
Wounded Knee, South Dakota,'' and dated January 1993, and as
more particularly described in this Act.
(2) Area included in park.--The Wounded Knee National
Tribal Park shall consist of--
(A) a North Unit that may include--
(i) such sites relating to the 1890 Wounded Knee Massacre
and Ghost Dance Religion, including the campsite of Chief Big
Foot at Deep Creek, as the Cheyenne River Sioux Tribe, in
consultation with the Director of the National Park Service,
considers necessary to include in such unit;
(ii) a cultural center and museum complex;
(iii) projects described in section 9(b)(2); and
(iv) a suitable and appropriate national monument to
memorialize Chief Big Foot and his band of Minneconjou Sioux;
and
(B) a South Unit that may include--
(i) the 1890 Wounded Knee Massacre site, as generally
described in the 1990 boundaries studies authorized by the
National Park Service, and such other sites relating to the
1890 Wounded Knee Massacre and Ghost Dance Religion as the
Oglala Sioux Tribe, in consultation with the Director of the
National Park Service, considers necessary to include in such
Unit;
(ii) a cultural center and museum complex at or near the
Wounded Knee Massacre site;
(iii) projects described in section 9(b)(2); and
(iv) a suitable and appropriate national monument to
memorialize the Sioux Indians involved in the 1890 Wounded
Knee Massacre.
(b) Cooperative Agreements.--
(1) In general.--The Secretary shall enter into a
cooperative agreement with each of the Cheyenne River Sioux
Tribe with respect to the North Unity, and Oglala Sioux Tribe
with respect to the South Unit to carry out planning, design,
construction, operation, maintenance, and replacement
activities, as appropriate, for the units.
(2) Requirements for cooperative agreements.--A cooperative
agreement entered into under paragraph (1) shall set forth,
in a manner acceptable to the Secretary--
(A)(i) the responsibilities of the parties referred to in
paragraph (1) with respect to the North Unit and the South
Unit; and
(ii) the manner in which contracts to carry out such
activities will be administered;
(B) the procedures and requirements for the approval and
acceptance of the design of, and construction of the North
Unit and South Unit;
(C) such Federal management policies described in the
publication entitled ``Management Policies, U.S. Department
of the Interior, National Park Service, 1988'' as the
Secretary considers necessary to qualify both units of the
Park for affiliation;
(D) a general management plan for each unit of the Park
that shall include plans--
(i) to protect and preserve the religious sanctity of the
Wounded Knee Massacre site and other religious sites located
within each unit;
(ii) to restore the Wounded Knee Massacre site, and other
important historic sites located within the units, to the
original condition of the sites at the time of the Massacre,
including the removal of all buildings and structures that
have no historical significance;
(iii) for the enactment of tribal zoning ordinances to
protect areas surrounding each unit from commercial
development and exploitation;
(iv) for the implementation of a continuing program of
public involvement, interpretation, and visitor education
concerning Lakota Sioux history and culture within each unit;
(v) to protect, interpret, and preserve important
archaological and paleontological sites within each unit;
(vi) for visitor use facilities, and the training and
employing of tribal members within each unit, as provided in
subsection (e); and
(vii) to waive or require entrance fees at the Wounded Knee
Massacre site; and
(E) the role and responsibilities of the Advisory
Commission established under section 8(a) in relation to both
units.
(c) Title.--
(1) Property acquired for the north unit.--Title to all
real property acquired for the North Unit of the Wounded Knee
National Tribal Park shall be held in trust by the United
States for the Cheyenne River Sioux Tribe.
(2) Property acquired for the south unit.--Title to all
real property acquired in the South Unit of the Wounded Knee
National Tribal Park shall be held in trust by the United
States for the Oglala Sioux Tribe.
(d) Technical Assistance.--
(1) In general.--The Secretary may provide technical
assistance to the Cheyenne River Sioux Tribe and Oglala Sioux
Tribe for carrying out the activities described in subsection
(b)(1).
(2) Training.--In addition to providing the assistance
described in paragraph (1), the Secretary may train and
employ members of the tribes concerning the operation and
maintenance of both units, including training in--
(A) the provision of public services, management of visitor
use facilities, interpretation and visitor education on Sioux
history and culture, and artifact curation at both units; and
(B) the interpretation, management, protection, and
preservation of other historical and natural properties at
both units.
(e) Application of the Indian Self-Determination Act.--
Except as otherwise provided in this Act, the activities
described in subsection (b)(1) shall be subject to the
Indian
[[Page S2419]] Self-Determination Act (25 U.S.C. 450f et
seq.).
SEC. 5. ACQUISITION OF LANDS FOR WOUNDED KNEE NATIONAL TRIBAL
PARK.
(a) In General.--The Cheyenne River Sioux Tribe and Oglala
Sioux Tribe may acquire by purchase from a willing seller, by
gift or devise, by exchange, or in other manner--
(1) surface and subsurface rights to any tract of fee-
patented or trust land; or
(2) easements that cover such lands,
that those tribes, in consultation with the Secretary,
consider necessary for inclusion in the North Unit or the
South Unit of the Wounded Knee National Tribal Park.
(b) Financial Assistance.--The Secretary may provide
financial assistance to the Cheyenne River Sioux Tribe and
the Oglala Sioux Tribe to acquire land and any interest in
land or other real property that is necessary for a unit of
the Park.
SEC. 6. MANAGEMENT.
(a) Management of North Unit.--
(1) In general.--The Cheyenne River Sioux Tribe, or a
designated agency or authority of that tribe, shall operate,
maintain, and manage the North Unit pursuant to the terms and
conditions contained in a cooperative agreement between the
Secretary and the Cheyenne River Sioux Tribe entered into by
the Secretary and the tribe pursuant to section 4(b).
(2) Exclusion.--The Cheyenne River Sioux Tribe shall have
no jurisdiction or authority over the South Unit.
(b) Management of South Unit.--
(1) In general.--The Oglala Sioux Tribe, or a designated
agency or authority of such tribe, shall operate, maintain,
and manage the South Unit pursuant to the terms and
conditions contained in a cooperative agreement between the
Secretary and the Oglala Sioux Tribe entered into by the
Secretary and the tribe pursuant to section 4(b).
(2) Exclusion.--The Oglala Sioux Tribe shall have no
jurisdiction or authority over the North Unit.
SEC. 7. PLANNING AND DESIGN OF NATIONAL MONUMENTS;
FEASIBILITY STUDIES.
(a) Monuments.--
(1) In general.--Except as provided in paragraph (2), the
national monuments on the North Unit and South Unit
authorized by subparagraphs (A)(iv) and (B)(iv) of section
4(a)(2) shall be planned, designed, and constructed by the
Secretary, after consultation with an advisory committee that
the Secretary shall appoint in consultation with--
(A) the Wounded Knee Survivors Association of the Cheyenne
River Indian Reservation;
(B) the Wounded Knee Survivors Association of the Pine
Ridge Indian Reservation; and
(C) direct descendants of the band of Minneconjou Sioux of
Chief Big Foot.
(2) Authority of the cheyenne river sioux tribal council
and the oglala sioux tribal council.--(A) The Cheyenne River
Sioux Tribal Council and the Oglala Sioux Tribal Council
shall have no authority to plan and design the monuments
referred to in paragraph (1).
(B) The Cheyenne River Sioux Tribal Council and the Oglala
Sioux Tribal Council shall have the authority to enter into
contracts for the construction, operation, maintenance, and
replacement of the monuments under the Indian Self-
Determination Act (25 U.S.C. 450f et seq.).
(b) Feasibility Studies.--
(1) In general.--The Secretary shall complete feasibility
studies to--
(A) establish and mark the route taken by Chief Big Foot
and his band from the Cheyenne River Indian Reservation to
Wounded Knee as a national historic trail; and
(B) establish a visitor information and orientation center
on the Cheyenne River Indian Reservation.
(2) Report.--Not later than 1 year after funds are
initially made available to the Secretary for a feasibility
study conducted under this subsection, the Secretary shall
complete the study and submit a report that contains the
findings of the study to Congress.
SEC. 8. WOUNDED KNEE NATIONAL TRIBAL PARK ADVISORY
COMMISSION.
(a) In General.--There is established within the Department
of the Interior the Wounded Knee National Tribal Park
Advisory Commission. The Commission shall advise regularly
the Cheyenne River Sioux Tribe and Oglala Sioux Tribe, or any
designated agency or authority of either tribe, concerning
the management and administration of the North Unit and South
Unit.
(b) Role and Responsibilities.--The role and
responsibilities of the Commission shall be defined in the
cooperative agreements that the Secretary shall enter into
with the Cheyenne Sioux Tribe and Oglala Sioux Tribe under
section 4(b). The Cheyenne River Sioux Tribe and Oglala Sioux
Tribe, or any designated agency or authority of either such
tribe, shall consult with the Commission not less frequently
than 4 times each year.
(c) Period of Operation.--The Commission shall exist for
such time as either the North Unit or the South Unit is in
existence.
(d) Membership.--The Secretary shall appoint 17 members of
the Commission. In addition, the Director of the National
Park Service or a designee of the Director shall serve as an
ex-officio member of the Commission. The Secretary shall
appoint the members of the Commission after consulting with,
and soliciting a recommendation from each of the following:
(1) The Chairman of the Cheyenne River Sioux Tribe.
(2) The President of the Oglala Sioux Tribe.
(3) The Chairman of the Wounded Knee Community Council on
the Pine Ridge Indian Reservation.
(4) The Chairman of the Wounded Knee Subcommunity Council
on the Pine Ridge Indian Reservation.
(5) The Chairman of the White Clay Community Council on the
Pine Ridge Indian Reservation.
(6) The Chairman of District No. 3 on the Cheyenne River
Indian Reservation.
(7) The Chairman of Red Scaffold Community on the Cheyenne
River Indian Reservation.
(8) The Chairman of Cherry Creek Community on the Cheyenne
River Reservation.
(9) The Chairman of Bridger Community on the Cheyenne River
Reservation.
(10) The Chairman of the Board of Directors of the Oglala
Sioux Parks and Recreation Authority.
(11) The President of the Wounded Knee Survivors
Association of the Cheyenne River Indian Reservation.
(12) The President of the Wounded Knee Survivors
Association of the Pine Ridge Indian Reservation.
(13) The Secretary of the Smithsonian Institution.
(14)(i) The Governor of the State of South Dakota and the
historic preservation officer of such State.
(ii) The Governor of the State of Nebraska and the historic
preservation officer of such State.
(e) Chair.--The offices of Chairman and Vice Chairman of
the Commission shall be rotated between the Chairman of the
Cheyenne River Sioux Tribe (or a designated representative of
the Chairman) and the President of the Oglala Sioux Tribe (or
a designated representative of the President) on a year-to-
year basis. If both the Chairman and Vice Chairman are absent
from any meeting, the members of the Commission who are
present at the meeting shall select a member who is present
to serve in the place of the Chairman for the meeting.
(f) Meetings.--The Commission shall meet at the call of the
Chairman or a majority of its members. In a manner consistent
with the public meeting requirements of the Federal Advisory
Committee Act (5 U.S.C. App.), the Commission shall from time
to time meet with persons concerned with Park issues relating
to the North Unit or South Unit. The Commission shall record
all minutes and resolutions of the Commission and make such
records available to the public upon request.
(g) Administrative Director.--
(1) In general.--The Secretary, in consultation with the
Commission, shall employ an Administrative Director for the
Commission and define the duties of the Administrative
Director. The Administrative Director shall be paid at a rate
not to exceed the annual rate of basic pay payable for grade
GS-12 of the General Schedule under subchapter IV of chapter
53 of title 5, United States Code, without regard to--
(A) the provisions of title 5, United States Code,
governing appointments in the competitive service; and
(B) the provisions of chapter 51, and subchapter III of
chapter 52 of that title relating to classification and
General Schedule pay rates.
(2) Office.--The office and staff of the Administrative
Director shall be located at such location as the Secretary
considers appropriate.
(h) Support Services.--The Administrator of General
Services shall provide to the Commission, on a
nonreimbursable basis, such administrative support services
as the Commission, in consultation with the Secretary, may
request.
(i) Expenses.--Members of the Commission who are not
otherwise employed by the Federal Government, while away from
their homes or regular places of business in the performance
of services for the Commission, shall be allowed travel and
all other related expenses, including per diem in lieu of
subsistence, in the same manner as persons employed
intermittently in Government service are allowed expenses
under section 5703 of title 5, United States Code.
(j) Applicability of Federal Advisory Act.--Except with
respect to any requirement for reissuance of a charter, and
except as otherwise provided in this Act, the provisions of
the Federal Advisory Committee Act (5 U.S.C. App.) shall
apply to the Commission established under this Act.
SEC. 9. FUNDRAISER AGREEMENTS WITH NONPROFIT CORPORATIONS.
(a) In General.--Notwithstanding any other provision of
law, the Cheyenne River Sioux Tribe and the Oglala Sioux
Tribe, or a designated agency or authority of either tribe,
may, with the approval of the Secretary, enter into an
agreement with a nonprofit corporation to raise funds from
private sources to be used in lieu of, or supplement, any
Federal funds made available by appropriations pursuant to
the authorization under section 11.
(b) New Projects.--The Cheyenne River Sioux Tribe and the
Oglala Sioux Tribe, or a designated agency or authority of
either tribe, shall have the power and authority to enter
into a separate agreement with a nonprofit corporation to--
[[Page S2420]] (1) raise funds from private sources to pay
for all obligations, costs, and fees for professional
services contracted, incurred, or assumed by the tribe, or a
designated agency or authority of the tribe, that are
related, directly or indirectly, to the development or
establishment of the Park; and
(2) raise funds from private sources to plan, design,
construct, operate, maintain, and replace--
(A) an international amphitheater dedicated to the
Indigenous Peoples of the Americas to be located at or near
the Wounded Knee Massacre site, which, if constructed, shall
become the permanent home of the Francis Jansen sculpture;
and
(B) any other project that the Cheyenne River Sioux Tribe
or the Oglala Sioux Tribe may, in consultation with the
Secretary, choose to include within the North Unit or South
Unit.
SEC. 10. DUTIES OF OTHER FEDERAL ENTITIES.
The appropriate official of any Federal entity that
conducts or supports activities that directly affect the Park
shall consult with the Secretary and the Cheyenne River Sioux
Tribe and the Oglala Sioux Tribe with respect to such
activities to minimize any adverse effects on the Park.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
SEC. 12. RULE OF STATUTORY CONSTRUCTION.
Nothing contained in this Act is intended to abrogate,
modify, or impair any rights or claims of the Cheyenne River
Sioux Tribe or Oglala Sioux Tribe, that are based on any
treaty, Executive order, agreement, Act of Congress, or other
legal basis.
Mr. PRESSLER. Mr. President, I am pleased to join my colleague from
South Dakota, Senator Daschle, as well as Senators Campbell, Simon,
Pell, and Dorgan in introducing legislation to establish the Wounded
Knee National Tribal Park in the State of South Dakota. The purpose of
our legislation is to acknowledge, preserve and protect the
historically significant sites of the Wounded Knee tragedy of 1890.
National recognition of this area is long overdue.
The legislation we are introducing today is the product of our
cumulative efforts over the past several sessions of Congress to
properly recognize the Wounded Knee tragedy. Indeed, Wounded Knee has
been the subject of Senate consideration for a number of years. Let me
highlight some of this activity:
During the 101st Congress, the Senate Select Committee on Indian
Affairs held hearings to discuss the historical significance of Wounded
Knee. Also during the 101st Congress, the Senate adopted Senate
Concurrent Resolution 153, recognizing the 100th anniversary of the
Wounded Knee Massacre. This resolution, which I cosponsored, also
expressed support for the establishment of a suitable and appropriate
memorial to those who were slain at Wounded Knee in 1890.
Late in the 102d Congress and again in the 103d Congress, Senator
Daschle and I introduced legislation (S. 3213 and S. 278) to establish
the Chief Big Foot National Memorial Park and the Wounded Knee National
Memorial.
During the 103d Congress, the Senate Energy Committee's Subcommittee
on Public Lands, National Parks and Forests held a hearing on S. 278
(July 29, 1993).
In addition to this congressional activity, the National Park Service
has studied the historical significance of Wounded Knee six times since
1950. The Park Service consistently has reaffirmed it as a nationally
significant area. In fact, our bill is in part based on one of the
proposed alternatives mentioned in a January 1993 NPS report on Wounded
Knee.
Mr. President, I hope the Senate will agree during this 104th
Congress to ensure the protection and preservation of the historical
sites at the Wounded Knee tragedy. I look forward to working with my
colleagues, members of the Cheyenne River and Oglala Sioux Tribes, the
Governor of South Dakota, the National Park Service, and other
organizations to move this legislation forward. Above all, we must
ensure this legislation is implemented with proper consultation with
the Indian communities. It is imperative that Indian perspectives be
included in developing the memorials' interpretive sites.
Enactment of our legislation will promote a greater understanding of
the events associated with the Wounded Knee tragedy. In addition,
appreciation of Indian culture, heritage, and history will be enhanced
through establishment of these memorials.
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