[Congressional Record Volume 141, Number 52 (Tuesday, March 21, 1995)]
[Senate]
[Pages S4262-S4280]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mrs. FEINSTEIN:
  S. 580. A bill to amend the Immigration and Nationality Act to 
control illegal immigration to the United States, reduce incentives for 
illegal immigration, reform asylum procedures, strengthen criminal 
penalties for the smuggling of aliens, and reform other procedures; to 
the Committee on the Judiciary.


      THE ILLEGAL IMMIGRATION CONTROL AND ENFORCEMENT ACT OF 1995

  Mrs. FEINSTEIN. Mr. President, I rise today to introduce, and now 
send to the desk, the Illegal Immigration Control and Enforcement Act 
of 1995. This bill incorporates many of the concepts in the immigration 
package that I introduced in the last session of Congress. New 
proposals have been added, however, after consultation with many, 
including California's law enforcement officials and others interested 
in curbing illegal immigration.
  Mr. President, I offer this legislation not to compete with Senator 
Simpson's S. 269, which he introduced on January 24, but rather to 
complement it. Little in this bill is duplicative of Senator Simpson's 
legislation. I am convinced that, combined, these two bills could offer 
a strong, straightforward program to stop illegal immigration.
  There simply is no time to lose. The crisis of illegal immigration 
continues in California and throughout the Nation.

[[Page S4263]]

  Too many people are still able to illegally cross our borders, and 
too few States, most notably California, carry the burden of having to 
support, educate, and often incarcerate the hundreds of thousands who 
enter this country illegally each year.
  There is no doubt in my mind that our border enforcement has improved 
in the last 2 years and I want to thank this administration for an 
unprecedented commitment to that end. I am equally convinced, however, 
that steps already taken have been insufficient to fully address the 
problem.
  Despite its major flaws and probable unconstitutionality, proposition 
187 in California was overwhelmingly approved by voters last November. 
The message was clear: Stop illegal immigration. If Congress does not 
heed this warning, I fear an even more serious backlash nationwide 
against all immigrants, including those who want to come to our country 
legally.


                          Impact on California

  One reason proposition 187 passed by such a large margin is that 
Californians know the impact of immigration on our State. According to 
1993 INS statistics, 45 percent of the Nation's illegal immigrants are 
now in California. That means between 1.6 and 2.3 million illegal 
immigrants now reside in our State; 15 percent of California's State 
prison population--or almost 20,000 inmates--is comprised of 
incarcerated illegal immigrants; 45 percent of all persons with pending 
asylum cases reside in California; 35 percent of the refugees to this 
country claimed residency in California in 1993; and almost 30 percent 
of the legal immigrants in this have country chosen to live in 
California.
  According to the Governor of our State, illegal immigration in fiscal 
year 1995-96 will cost California an estimated $3.6 billion, including 
an $2.66 billion for the federally mandated costs of education, health 
care, and incarceration. By anyone's estimation, that is a staggering 
sum, and a tremendous burden on just one State.


                    The Need for Immigration Reform

  I believe our Federal response to the problem of illegal immigration 
must address four key goals: First, control illegal immigration at the 
border; second, reduce the economic incentives to come to the United 
States illegally; third, deal swiftly and severely with document 
forgers and alien smugglers; and fourth, remove criminal aliens from 
our Nation's prisons and jails, while assuring that their sentences are 
served in their countries of origin.


                             Border Control

  This legislation requires that at least 700, and up to 1,000, new 
Border Patrol agents be hired in each of the next 3 fiscal years. It 
differs from the crime bill in one critical respect. The crime bill 
authorized the hiring of up to 1,000 new agents in each of Fiscal Years 
1996, 1997 and 1998. This bill further requires that a minimum of 700 
agents per year be hired. It thus adds a floor to the crime bill which 
will assure that no fewer than 2,100 new agents, and up to 900 support 
personnel, will be on board by the end of Fiscal Year 1998 for a total 
of 7,082 Border Patrol agents.
  It mandates the hiring of sufficient INS border inspectors to fully 
staff all legal crossing lanes at peak periods. The bill also provides 
for improved border infrastructure and Border Patrol training.


                          Reducing Incentives

  Second, this legislation substantially expands existing employer 
sanctions and wage and hour law enforcement programs to reduce the 
biggest incentives for undocumented persons to come to this country, 
namely jobs.
  Central to this effort is the creation of a counterfeit-proof work 
and benefits authorization verification system. Any employer--and any 
provider of federally funded benefits--ought to be 100 percent certain 
that a candidate is here legally. A counterfeit-proof verification 
system is the only way this can be achieved.
  In addition, this bill dramatically increases the civil fines for 
anyone who knowingly hires, recruits, or refers illegal aliens for 
hiring. This is important because today the civil penalties for 
illegally hiring an illegal immigrant are very low. Fines range between 
just $250 and $2,000--per alien hired--for a first offense.
  This bill would increase that range from $1,000 to $3,000 for the 
first offense.
  Second offenses would carry per alien fines of between $3,000 and 
$7,000, and third or later offenses would cost $7,000 to $20,000 per 
alien--that is more than double the current $3,000 to $10,000 
liability.
  It dramatically increases the criminal penalties for a pattern or 
practice of hiring illegal immigrants. This bill doubles the maximum 
criminal fine, and triples the maximum jail sentence, for anyone who 
facilitates a fraudulent application for benefits by an unlawful alien 
by counterfeiting the seal or stamp of any Federal agency. If this bill 
is enacted, the new maximums will be $500,000, or 15 years in jail, or 
both.
  It provides for additional INS and Department of Labor inspectors to 
enforce existing laws and provides for the hiring of additional 
assistant U.S. attorneys to more aggressively prosecute these crimes.


                      Smuggling and Document Fraud

  Shutting down false document mills, counterfeiters, smugglers, and 
smuggling organizations is the third priority at the core of this 
legislation.
  Smugglers and forgers will find this to be a very tough bill indeed. 
This legislation broadens current Federal asset seizure authority to 
include those who smuggle or harbor illegal aliens, and those who 
produce false work and benefits documents.
  It imposes tough minimum and maximum sentences on smugglers, and it 
imposes those penalties for each alien smuggled. At the moment, 
penalties are assessed per transaction, no matter how many illegal 
immigrants a smuggler takes across our borders.
  This bill increases the penalty for smugglers in the event that an 
alien is injured, killed, or subject to blackmail threats by the 
smuggler.
  It makes it easier to deport so-called weekend warriors--legal 
permanent residents, green card holders, who are in the United States, 
smuggle illegal immigrants for profit, and then try to use their 
immigration status to avoid being deported from the United States.
  It dramatically increases penalties for document forgers or 
counterfeiters. First offenders will be sentenced to 2\1/2\ to 5 years, 
5 to 10 years with any prior felony conviction, and 10 to 15 years with 
two or more prior felonies. Currently, document forgers can receive as 
little as 0 to 6 months for a first offense.


                            Criminal Aliens

  This legislation is intended to once again signal that the President 
must have the authority, by treaty, to deport aliens convicted of 
crimes in this country for secure incarceration in such aliens' home 
countries.
  Although we have prisoner transfer treaty agreements with many 
nations now, they are subject to the consent of the prisoner to be 
transferred. If the prisoner does not consent, he is not transferred.
  This legislation eliminates that obstacle. It also would speed up the 
deportation process and make more criminal aliens deportable by 
broadening the definition of an aggravated felony for which aliens may 
already be deported to include document fraud crimes not now 
independent grounds for deportation; it classifies as aggravated 
felonies certain offenses punishable by 3 years, rather than for which 
an alien has actually been sentenced to 5 years or more. As a result, 
it would definitely increase the number of criminals who would qualify 
for deportation as having committed aggravated felony.
  In addition, courts would have the authority to require that, in 
order to receive a sentence of probation rather than a prison term, an 
illegal alien convicted of a crime would be required to consent to 
being deported as a condition of probation. This would give prosecutors 
the option of ejecting from the country relatively low-level offenders 
after trial without going through an additional, and often lengthy, 
deportation hearing.


                      Sponsors of Legal Immigrants

  Before concluding, let me note just one other feature of the bill 
which pertains to immigrants who have lawfully come to the United 
States on the basis of a citizen's--usually an immediate relative's--
sponsorship. The legislation would require anyone who sponsors a legal 
immigrant for admission to the United States to make good on their 
promise of financial support should the 
[[Page S4264]] legal alien require assistance before becoming a 
citizen.
  In addition, past proposals to strengthen sponsorship agreements 
typically exempted sponsors from liability for medical costs.
  This legislation would make sponsors responsible for the costs of 
medical care, requiring them to obtain health insurance for the 
immigrant they have sponsored. The insurance would be of a type and 
amount to be specified by the Secretary of Health and Human Services, 
and would be required to be purchased within 20 days of an immigrant's 
arrival in this country. A safety valve is built into the bill, 
however, for sponsors who die, or who become impoverished or bankrupt.


                          Border Crossing Fee

  This bill also provides a funding mechanism for this package with a 
border crossing fee of $1 per person, which could yield up to $400 
million per year. The border control, the infrastructure, the training, 
the additional narcotics abatement efforts provided in this bill all 
could be underwritten by such a fee.


                               Conclusion

  In conclusion, Mr. President, immigration is too much at the core of 
what America means to each of us individually, and to our society 
collectively, to politicize and polarize the coming debate. If we are 
to map common ground together, it is the spirit of compromise that must 
prevail. We owe America--America the Nation and America the idea--no 
less.
  I look forward to continuing to work closely with the chairman of my 
subcommittee, Senator Simpson, with Senators Kennedy and Simon, and 
with all of my Republican colleagues on the subcommittee to present the 
full Judiciary Committee and the Senate with the best possible 
comprehensive illegal immigration legislation as quickly as possible.
                                 ______

      By Mr. HATFIELD (for himself and Mr. Brown):
  S. 582. A bill to amend title 28, United States Code, to provide that 
certain voluntary disclosures of violations of Federal laws made 
pursuant to an environmental audit shall not be subject to discovery or 
admitted into evidence during a Federal judicial or administrative 
proceeding, and for other purposes; to the Committee on the Judiciary.


               ENVIRONMENTAL AUDIT PRIVILEGE LEGISLATION

 Mr. HATFIELD. Mr. President, with the recent changes in 
Congress, we are presented with an important opportunity to take a 
fresh look at many aspects of our Federal legal and regulatory system. 
A return to federalism is underway including a movement to allow 
greater flexibility in administering Federal programs. I support a full 
review of the Federal regulatory straitjacket we have helped create and 
believe that greater flexibility should be extended to both the public 
and private sectors of this Nation.
  As my colleagues know, it is difficult to have a conversation these 
days with a business leader or a local government official without the 
topic turning to the increasingly onerous burden of Federal 
regulations--particularly environmental regulations. It is now clear 
the many of our laws and regulations designed to ensure a safer 
environment are now having the unfortunate effect of discouraging sound 
environmental practices.
  The legislation I will introduce today makes the point that the 
Federal Government should encourage responsible actions by businesses 
with incentives and flexibility, rather than through threats and 
penalties. Given the limited resources available for environmental 
enforcement and monitoring, it is vital that companies self-police and 
be willing partners in the implementation of the Nation's environmental 
programs. There is no other way to protect our people, our communities, 
and our environment.
  In an effort to advance this idea, I am introducing the Environmental 
Audit Privilege Act. I am pleased to be joined in this effort by my 
friend from Colorado, Senator Hank Brown.
  This legislation will create new incentives for companies to police 
their own environmental actions by establishing a limited legal 
privilege for businesses that voluntarily audit their compliance with 
environmental laws and promptly proceed to correct any violations 
discovered.
  In 1993, Oregon became the first State to codify a privilege for 
environmental audits. Under the Oregon law, an internal environmental 
audit, undertaken voluntarily, cannot be used against the company in a 
trial or administrative action, unless efforts to comply were not 
promptly initiated and pursued with reasonable diligence or the 
privilege was invoked for fraudulent purposes. The Oregon law garnered 
support not only from the business community, but also from the Oregon 
Department of Environmental Quality and the State attorney general. 
These supporters have told me of the positive effects this law has had 
in Oregon.
  Six other States have created a similar privilege, including 
Colorado, Indiana, Kentucky, Arkansas, Illinois, and Wyoming. Nearly 
two dozen other States are considering bills to create an environmental 
audit privilege. Supporters of these State provisions argue that their 
efforts are undermined by the absence of a Federal counterpart. To 
avoid the State privilege, a litigant must simply file suit in Federal 
court, where it is possible the State privilege will not be recognized.
  The legislation I put forward today is an extension of legislation I 
introduced in the 103d
 Congress which was based solely on the Oregon law. A new section has 
been added to this bill as a result of the very constructive efforts of 
Senator Brown. This new section is based on a worthy idea pioneered by 
the State of Colorado.

  The audit privilege portion of my bill strikes an equitable balance 
between protecting a company's right to self-police and ensuring that 
businesses comply with environmental regulations. There are clear 
limits on the privilege, however. The privilege would cease to exist if 
used for fraudulent activities or if waived by a company. Furthermore, 
the privilege is moot if the company does not promptly act to achieve 
compliance when a violation is discovered in an audit. This factor 
ensures a strong incentive for companies to immediately correct any 
potential or real problem in their activities.
  Even if the company proceeds immediately to correct a violation, the 
privilege is not absolute. The privilege only extends to information in 
the audit report, not to the violation itself. It would not bar 
enforcement action for environmental violations; no environmental law 
is decriminalized nor are enforcement agencies barred from pursuing 
action. This protection does not prevent an agency or an injured party 
from pursuing legal action against a violator on the basis of 
independent evidence of the violation.
  Oregon's law has expanded employee involvement, which has made audits 
more complete and accurate, and it has helped employees connect their 
daily jobs with environmental compliance. It has also created new 
incentives for companies to independently pursue compliance while 
encouraging businesses to adopt more systematic approaches to examining 
and correcting their environmental activities.
  Last, but by no means least, lawyers are no longer needed in Oregon 
to shield audit documents under the attorney-client privilege. 
Companies can now feel secure in keeping records, and they have had 
much greater success in dealing with chronic problems. Removing lawyers 
from audits substantially reduces the cost of auditing and improves the 
frankness of information flowing within companies.
  The legislation I am introducing today also includes a very important 
section which I will refer to as voluntary disclosure. This section 
provides protection for companies that wish to step forward and 
voluntarily disclose inadvertent violations of environmental laws that 
come to light through the conduct of a voluntary environmental audit. 
Again, these provisions are based on a law first passed in the State of 
Colorado. It has been a pleasure to have worked with Senator Brown and 
his fine staff over the past several months to reach agreement on this 
important section of the bill.
  Under this section, if an audit reveals a previously unknown 
environmental violation, the company will be immune from 
administrative, civil, or criminal penalties if it: First, promptly and 
voluntarily discloses the violation to the regulatory agency; second, 
takes prompt steps to correct the problem; and, third, fully cooperates 
with the 
[[Page S4265]] regulatory agency. As with the privilege, this 
protection does not prevent an agency or an injured party from pursuing 
legal action against a violator on the basis of independent evidence of 
the violation.
  While Oregon did not include such provisions in its law, I believe 
providing protections for voluntary disclosures is a meritorious idea, 
and one certainly worthy of the full consideration of the Senate. As 
one of my colleagues recently noted, sunlight is an excellent 
disinfectant. Thus, while the privilege portions of this bill allow an 
environmental audit to remain secret, the voluntary disclosure 
provisions would give the public access to this important information
 and would require any violations be addressed promptly.

  Last week, President Clinton announced his plans to encourage 
environmental audits as part of a package of regulatory reform 
measures. I want to commend the President and those at EPA who have 
recognized the benefits of encouraging companies to engage in this type 
of self-analysis. I believe both business profitability and the 
environment will benefit from these efforts, and I look forward to 
working with the administration on the legislative side of this effort.
  I am aware the administration has serious misgivings about codifying 
and audit privilege and has raised questions about the voluntary 
disclosure protection in this bill. I admit this is an issue that 
excludes great common sense appeal upon first glance, but which 
certainly grows more complex with each level of further analysis. While 
I am not a lawyer, my further analysis leads me to the conclusion that 
this idea is sound and that the Nation would benefit from the debate 
this legislative proposal will inevitably generate.
  Self-enforcement by responsible companies is vital to the success of 
our environmental objectives. It is a fact that most companies want to 
police themselves. Not only is it morally correct, it is also 
consistent with a total quality management approach to business 
management, for companies to take a proactive approach to environmental 
safety. It makes business sense and is less costly for a company to 
find and rectify a violation than it is to face regulatory, civil, or 
criminal action. Incentives for self-enforcement will help free up the 
very limited resources of Federal and State environmental and 
enforcement agencies, allowing them to pursue the most severe, 
egregious, and dangerous violations of our environmental laws.
  Federal policy must promote the delicate balance between protecting 
our environment and allowing business to flourish. The Environmental 
Audit Privilege Act will provide companies with greater flexibility and 
with incentives for compliance with environmental protection 
regulations. Such protections will signal an important step toward 
ensuring the success of our businesses and of our environmental 
programs.
  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:
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,
     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Voluntary Environmental 
     Audit Protection Act''.

     SEC. 2. VOLUNTARY SELF-EVALUATION PROTECTION.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by adding at the end the following new chapter:

          ``CHAPTER 179--VOLUNTARY SELF-EVALUATION PROTECTION
``Sec.
``3801. Admissibility of environmental audit reports.
``3802. Testimony.
``3803. Disclosure to a Federal agency.
``3804. Definitions.
     ``Sec. 3801. Admissibility of environmental audit reports

       ``(a) General Rule.--
       ``(1) In general.--Except as provided in paragraphs (2) and 
     (3), an environmental audit report prepared in good faith by 
     a person or government entity related to, and essentially 
     constituting a part of, an environmental audit shall not be 
     subject to discovery and shall not be admitted into evidence 
     in any civil or criminal action or administrative proceeding 
     before a Federal court or agency or under Federal law.
       ``(2) Exclusions.--Paragraph (1) shall not apply to--
       ``(A) any document, communication, data, report, or other 
     information required to be collected, developed, maintained, 
     or reported to a regulatory agency pursuant to a covered 
     Federal law;
       ``(B) information obtained by observation, sampling, or 
     monitoring by any regulatory agency; or
       ``(C) information obtained from a source independent of the 
     environmental audit.
       ``(3) Inapplicability.--Paragraph (1) shall not apply to an 
     environmental audit report, if--
       ``(A) the owner or operator of the facility that initiated 
     the environmental audit expressly waives the right of the 
     person or government entity to exclude from the evidence or 
     proceeding material subject to this section;
       ``(B) after an in camera hearing, the appropriate Federal 
     court determines that--
       ``(i) the environmental audit report provides evidence of 
     noncompliance with a covered Federal law; and
       ``(ii) appropriate efforts to achieve compliance were not 
     promptly initiated and pursued with reasonable diligence; or
       ``(C) the person or government entity is asserting the 
     applicability of the exclusion under this subsection for a 
     fraudulent purpose.
       ``(b) Determination of Applicability.--The appropriate 
     Federal court shall conduct an in camera review of the report 
     or portion of the report to determine the applicability of 
     subsection (a) to an environmental audit report or portion of 
     a report.
       ``(c) Burdens of Proof.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     party invoking the protection of subsection (a)(1) shall have 
     the burden of proving the applicability of such subsection 
     including, if there is evidence of noncompliance with an 
     applicable environmental law, the burden of proving a prima 
     facie case that appropriate efforts to achieve compliance 
     were promptly initiated and pursued with reasonable 
     diligence.
       ``(2) Waiver and fraud.--A party seeking discovery under 
     subparagraph (A) or (C) of subsection (b)(3) shall have the 
     burden of proving the existence of a waiver, or that 
     subsection (a)(1) has been invoked for a fraudulent purpose.
       ``(d) Effect on Other Rules.--Nothing in this Act shall 
     limit, waive, or abrogate the scope or nature of any 
     statutory or common law rule regarding discovery or 
     admissibility of evidence, including the attorney-client 
     privilege and the work product doctrine.

     ``Sec. 3802. Testimony

       ``Notwithstanding any other provision of law, a person or 
     government entity, including any officer or employee of the 
     person or government entity, that performs an environmental 
     audit may not be required to give testimony in a Federal 
     court or an administrative proceeding of a Federal agency 
     without the consent of the person or government entity 
     concerning the environmental audit, including the 
     environmental audit report with respect to which section 
     3801(a) applies.

     ``Sec. 3803. Disclosure to a Federal agency

       ``(a) In General.--The disclosure of information relating 
     to a covered Federal law to the appropriate official of a 
     Federal agency or State agency responsible for administering 
     a covered Federal law shall be considered to be a voluntary 
     disclosure subject to the protections provided under section 
     3801, section 3802, and this section if--
       ``(1) the disclosure of the information arises out of an 
     environmental audit;
       ``(2) the disclosure is made promptly after the person or 
     government entity that initiates the audit receives knowledge 
     of the information referred to in paragraph (1);
       ``(3) the person or government entity that initiates the 
     audit initiates an action to address the issues identified in 
     the disclosure--
       ``(A) within a reasonable period of time after receiving 
     knowledge of the information; and
       ``(B) within a period of time that is adequate to achieve 
     compliance with the requirements of the covered Federal law 
     that is the subject of the action (including submitting an 
     application for an applicable permit); and
       ``(4) the person or government entity that makes the 
     disclosure provides any further relevant information 
     requested, as a result of the disclosure, by the appropriate 
     official of the Federal agency responsible for administering 
     the covered Federal law.
       ``(b) Involuntary Disclosures.--For the purposes of this 
     chapter, a disclosure of information to an appropriate 
     official of a Federal agency shall not be considered to be a 
     voluntary disclosure described in subsection (a) if the 
     person or government entity making the disclosure has been 
     found by a Federal or State court to have committed repeated 
     violations of Federal or State laws, or orders on consent, 
     related to environmental quality, due to separate and 
     distinct events giving rise to the violations, during the 3-
     year period prior to the date of the disclosure.
       ``(c) Presumption of Applicability.--If a person or 
     government entity makes a disclosure, other than a disclosure 
     referred to in subsection (b), of a violation of a covered 
     Federal law to an appropriate official of a Federal agency 
     responsible for administering the covered Federal law--
       ``(1) there shall be a presumption that the disclosure is a 
     voluntary disclosure described 
     [[Page S4266]] in subsection (a), if the person or government 
     entity provides information supporting a claim that the 
     information is such a voluntary disclosure at the time the 
     person or government entity makes the disclosure; and
       ``(2) unless the presumption is rebutted, the person or 
     government entity shall be immune from any administrative, 
     civil, or criminal penalty for the violation.
       ``(d) Rebuttal of Presumption.--
       ``(1) In general.--The head of a Federal agency described 
     in subsection (c) shall have the burden of rebutting a 
     presumption established under such subsection. If the head of 
     the Federal agency fails to rebut the presumption--
       ``(A) the head of the Federal agency may not assess an 
     administrative penalty against a person or government entity 
     described in subsection (c) with respect to the violation of 
     the person or government entity and may not issue a cease and 
     desist order for the violation; and
       ``(B) a Federal court may not assess a civil or criminal 
     fine against the person or government entity for the 
     violation.
       ``(2) Final agency action.--A decision made by the head of 
     the Federal agency under this subsection shall constitute a 
     final agency action.
       ``(e) Statutory Construction.--Except as expressly provided 
     in this section, nothing in this section is intended to 
     affect the authority of a Federal agency responsible for 
     administering a covered Federal law to carry out any 
     requirement of the law associated with information disclosed 
     in a voluntary disclosure described in subsection (a).

     ``Sec. 3804. Definitions

       ``As used in this chapter:
       ``(1) Covered federal law.--The term `covered Federal 
     law'--
       ``(A) means--
       ``(i) the Federal Insecticide, Fungicide, and Rodenticide 
     Act (7 U.S.C. 136 et seq.);
       ``(ii) the Toxic Substances Control Act (15 U.S.C. 2601 et 
     seq.);
       ``(iii) the Federal Water Pollution Control Act (33 U.S.C. 
     1251 et seq.);
       ``(iv) the Oil Pollution Act of 1990 (33 U.S.C. 2701 et 
     seq.);
       ``(v) title XIV of the Public Health Service Act (commonly 
     known as the `Safe Drinking Water Act') (42 U.S.C. 300f et 
     seq.);
       ``(vi) the Noise Control Act of 1972 (42 U.S.C. 4901 et 
     seq.);
       ``(vii) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
     seq.);
       ``(viii) the Clean Air Act (42 U.S.C. 7401 et seq.);
       ``(ix) the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
     seq.);
       ``(x) the Emergency Planning and Community Right-To-Know 
     Act of 1986 (42 U.S.C. 11001 et seq.); and
       ``(xi) the Pollution Prevention Act of 1990 (42 U.S.C. 
     13101 et seq.);
       ``(B) includes any regulation issued under a law listed in 
     subparagraph (A); and
       ``(C) includes the terms and conditions of any permit 
     issued under a law listed in subparagraph (A).
       ``(2) Environmental audit.--The term `environmental audit' 
     means a voluntary and internal assessment, evaluation, 
     investigation or review of a facility that is--
       ``(A) initiated by a person or government entity;
       ``(B) carried out by the employees of the person or 
     government entity, or a consultant employed by the person or 
     government entity, for the express purpose of carrying out 
     the assessment, evaluation, investigation, or review; and
       ``(C) carried out to determine whether the person or 
     government entity is in compliance with a covered Federal 
     law.
       ``(3) Environmental audit report.--The term `environmental 
     audit report' means any reports, findings, opinions, field 
     notes, records of observations, suggestions, conclusions, 
     drafts, memoranda, drawings, computer generated or 
     electronically recorded information, maps, charts, graphs, 
     surveys, or other communications associated with an 
     environmental audit.
       ``(4) Federal agency.--The term `Federal agency' has the 
     meaning provided the term `agency' under section 551 of title 
     5.
       ``(5) Government entity.--The term `government entity' 
     means a unit of State or local government.''.
       (b) Technical Amendment.--The analysis for part VI of title 
     28, United States Code, is amended by adding at the end the 
     following:

``179. Voluntary Self-Evaluation Protection.................3801''.....
     SEC. 3. APPLICABILITY.

       This Act and the amendment made by this Act shall apply to 
     each Federal civil or criminal action or administrative 
     proceeding that is commenced after the date of enactment of 
     this Act.
                                                                    ____

 Summary of Hatfield/Brown Voluntary Environmental Audit Protection Act

       The ``Voluntary Environmental Audit Protection Act'' amends 
     Title 28 of the U.S. Code by adding Chapter 179 entitled 
     ``Voluntary Self-Evaluation Protection.'' The purpose is to 
     protect environmental audits and provide qualified penalty 
     immunity for voluntary disclosures made as a result of 
     conducting environmental audits. The Act consists of the 
     following four sections:


       A. Sec. 3801. Admissibility of Environmental Audit Reports

       Generally, environmental audit reports prepared in good 
     faith are not subject to discovery and are not admissible in 
     any federal administrative or judicial proceeding.
       Exclusions: The protection against admissibility does not 
     apply to documents or information: Required to be collected, 
     maintained or reported under environmental laws; available 
     due to the agency's own observation, sampling or monitoring; 
     or available from an independent source.
       Waiver: Waiver can only occur by an express waiver by the 
     owner or operator of the facility that initiated audit.
       Inapplicability: The protection is not applicable if: An 
     environmental audit report shows non-compliance with an 
     environmental law and the entity does not promptly initiate 
     actions to achieve compliance and pursue those actions with 
     reasonable diligence, or the protection is claimed for a 
     fraudulent purpose.
       Determination of Applicability: A federal court determines 
     the applicability of the protection in an in camera review of 
     an audit report or portion of an audit report.
       Burden of Proof: The person or government entity invoking 
     the protection has the burden of demonstrating its
      applicability and if there are instances of non-compliance, 
     that appropriate efforts to achieve compliance have been 
     initiated. The party seeking discovery of the audit report 
     has the burden of proving that the protections were waived 
     or that the privilege was invoked for a fraudulent 
     purpose.
       Other Statutes/Requirements: The Act does not affect any 
     existing statutory or common law rules of evidence, discovery 
     or privilege (such as attorney-client privilege and work-
     product doctrine).


                        b. Sec. 3802. testimony

       Any person that performs an environmental audit is not 
     required to give testimony relating to the audit in an 
     administrative or judicial proceeding. This applies to 
     officers and employees of the person or government entity as 
     well as the person or government entity itself.


              c. Sec. 3803. disclosure to a federal agency

       The Act defines a disclosure as ``voluntary'' if: it arises 
     out of an ``environmental audit'' (as defined); it is made 
     promptly after learning of the information; actions are 
     undertaken to achieve compliance; and the person or entity 
     making the disclosure provides additional relevant 
     information as requested by the appropriate agency.
       Involuntary Disclosures: Otherwise voluntary disclosures 
     will not be voluntary if the person or government entity has 
     committed repeated violations of federal or state 
     environmental laws or orders during the three years prior to 
     the disclosure.
       Presumption of Voluntariness: Disclosures are presumed to 
     be voluntary, and unless rebutted, the person or government 
     entity is immune from administrative, civil or criminal 
     penalties for the violation(s) disclosed.
       Rebuttal of Presumption: The federal agency has the burden 
     of rebutting the presumption of voluntariness of the 
     disclosure.
                       d. Sec. 3804. Definitions

       ``Covered Federal Law'' includes FIFRA, TSCA, the Clean 
     Water Act, the Oil Pollution Act of 1990, the Safe Drinking 
     Water Act, the Noise Control Act, RCRA, the Clean Air Act, 
     CERCLA, EPCRA and the Pollution Prevention Act of 1990, and 
     any regulations or permits issued thereunder.
       ``Environmental Audit'' is a voluntary and internal review, 
     assessment, evaluation or investigation that is initiated by 
     the person or government entity, carried out by the person or 
     government entity or its employees to determine compliance 
     with any covered Federal law.
       ``Environmental Audit Report'' generally includes any 
     reports, findings, opinions, observations, and conclusions 
     relating to an environmental audit.
       ``Government Entity'' means any unit of state or local 
     government.

                                                  OVERVIEW OF STATE ENVIRONMENTAL AUDIT PRIVILEGE LAWS                                                  
                                [1995 Coalition for Improved Environmental Audits--Current as of Mar. 6, 1995]                               
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Issues                              AR\1\         CO\2\         IL\3\         IN\4\         KY\5\         OR\6\         WY\7\   
--------------------------------------------------------------------------------------------------------------------------------------------------------
Environmental Audit Report: Requires documents          Yes           No            Yes           Yes           Yes           Yes           Yes         
 comprising environmental audit report to be prepared                                                                                                   
 as a result of an environmental audit and labeled                                                                                                      
 ``Environmental Audit Report: Privileged Document.''.                                                                                                  
Voluntary Disclosure:                                                                                                                                   
    Immunity or reduction in penalties for voluntary    No            Yes           No            No            No            No            Yes         
     disclosure.                                                                                                                                        
    Immunity from criminal charges for voluntary        No            Yes           No            No            No            No            No          
     disclosure.                                                                                                                                        
Waiver of Privilege:                                                                                                                                    
    Expressly.........................................  Yes           Yes           Yes           Yes           Yes           Yes           Yes         
    By implication....................................  Yes           Not stated    Not stated    Yes           Yes           Yes           Yes         
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                                                                                                        
[[Page S4267]]
                                             OVERVIEW OF STATE ENVIRONMENTAL AUDIT PRIVILEGE LAWS--Continued                                            
                                [1995 Coalition for Improved Environmental Audits--Current as of Mar. 6, 1995]                               
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Issues                              AR\1\         CO\2\         IL\3\         IN\4\         KY\5\         OR\6\         WY\7\   
--------------------------------------------------------------------------------------------------------------------------------------------------------
    By failing to file a petition for in camera review  Yes           Not stated    Yes           Yes           Yes           Yes           Yes         
     or hearing (# of days to file petition after       (30 days)                   (30 days)     (30 days)     (20 days)     (30 days)     (20 days)   
     filing or request for the environmental audit                                                                                                      
     report).                                                                                                                                           
    By introduction of any part of the environmental    No            Not stated    Not stated    Not stated    Yes           Not stated    No          
     audit report by party asserting the privilege.                                                                                                     
Privilege is lost if:                                                                                                                                   
    Asserted for fraudulent purposes..................  Yes           Yes           Yes           Yes           Yes           Yes           Yes         
    Material is not subject to the privilege..........  Yes           Not stated    Yes           Yes           Yes           Yes           Yes         
    Material shows evidence of non-compliance and       Yes           Yes           Yes           Yes           Yes           Yes           Yes         
     efforts to achieve compliance were not promptly                                                                                                    
     initiated and pursued with reasonable diligence.                                                                                                   
    In a criminal proceeding, the legal official has a  Not stated    Yes           Not stated    Yes           Yes           Yes           Yes         
     (need, substantial need, compelling need, or                                                                                                       
     compelling circumstances) requiring the otherwise                                                                                                  
     unavailable information.                                                                                                                           
Burden of Proof:                                                                                                                                        
    Party asserting the privilege has burden of         Yes           Yes\8\        No\9\         Yes           Yes           Yes           Yes         
     proving privilege and reasonable diligence toward                                                                                                  
     compliance.                                                                                                                                        
    Party seeking disclosure has burden of proving      Yes           Yes           Yes           Yes           Yes           Yes           Yes         
     fraudulent purpose.                                                                                                                                
    Legal official or party seeking disclosure has      Yes           Yes           Yes           Yes           Yes           Yes           Yes         
     burden of proving conditions for disclosure.                                                                                                       
Provision for disclosure of only the portions of the    Yes           Not stated    Yes           Yes           Yes           Yes           Yes         
 environmental audit report relevant to the issues in                                                                                                   
 the dispute.                                                                                                                                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Enacted February 17, 1995. Effective 90 days after the legislative session ends. Act No. 350 of the 1995 Session.                                    
\2\Effective June 1, 1994. Colorado Revised Statutes Section 13-25-126.5.                                                                               
\3\Effective January 24, 1995. Illinois Public Act 88-0690.                                                                                             
\4\Effective July 1, 1994. Indiana Code 13-10.                                                                                                          
\5\Effective July 15, 1994. Title XVIII, Kentucky Statute Sec. 224.01-040.                                                                              
\6\Effective 1994. Or. Rev. Stat. Sec. 468.963.                                                                                                         
\7\Enacted February 18, 1995. Effective July 1, 1995.                                                                                                   
\8\Party asserting privilege has burden of proving a prima facie case.                                                                                  
\9\Party asserting privilege has burden of proving privilege, but adverse party has burden of showing lack of reasonable diligence toward compliance.   


         SUMMARY OF 1995 STATE AND FEDERAL LEGISLATIVE INITIATIVES FOR THE ENVIRONMENTAL AUDIT PRIVILEGE        
                    [1995 Coalition for Improved Environmental Audits--Revised Mar. 10, 1995]                   
----------------------------------------------------------------------------------------------------------------
                                                                     ``Environmental                            
                                                                      Audit Report''  Immunity for    Immunity  
     State and legislative status              Reference No.          label required    voluntary     includes  
                                                                      on privileged    disclosure?    criminal  
                                                                        document?                     charges?  
----------------------------------------------------------------------------------------------------------------
Arizona: Approved by Senate. Sent to   S.B. 1290...................  NO               YES           YES         
 House.                                                                                                         
Arkansas: Signed into law on 2/17/95.  Act No. 350 of 1995 Session.  YES              NO            NO          
Georgia: Introduced in Senate........  S.B. 244....................  NO               NO            NO          
Hawaii:                                                                                                         
    Introduced in House..............  H.B. 390....................  YES              NO            NO          
    Introduced in Senate.............  S.B. 1304...................  NO               YES           YES         
Idaho: Approved by Senate. Sent to     S. 1142.....................  YES              YES           YES         
 House.                                                                                                         
Kansas: Approved by Senate. Sent to    S.B. 76.....................  YES              YES           YES         
 House.                                                                                                         
Massachusetts: Introduced in House...  H. 3426.....................  NO               NO            NO          
Mississippi: Bill passed both Houses.  S.B. 3079...................  NO               YES\1\        YES         
 Returned to Senate for concurrence 3/                                                                          
 7/95.                                                                                                          
Missouri: Bills introduced in House    H.B. 338....................  NO               YES           YES         
 and Senate.                           S.B. 350....................  NO               YES           YES         
                                       S.B. 363....................  YES              YES\1\        NO          
Montana: Introduced in House.........  H.B. 412....................  YES              YES           YES         
Nebraska: Introduced to Legislature..  L.B. 731....................  NO               YES           YES         
New Hampshire: Introduced in House...  H.B. 275....................  NO               YES           YES         
New Jersey: Bills introduced in        A.B. 2521...................  NO               YES           YES         
 Assembly and Senate.                  S.B. 1797...................  NO               YES           YES         
North Carolina: To be introduced in    ............................  NO               NO            NO          
 larger regulatory reform proposal.                                                                             
Ohio: A bill similar to S.B. 361 of    ............................  NO               YES           YES         
 1994 to be introduced.                                                                                         
Oklahoma: Introduced in House........  H.B. 1388...................  YES              YES           YES         
South Carolina: Introduced in Senate.  S.B. 15.....................  NO               YES           YES         
Tennessee: Introduced in Senate......  S.B. 1135...................  YES              YES           YES         
Texas:                                                                                                          
    Introduced in House..............  H.B. 2473...................  YES              YES           YES         
    Senate bill to be introduced.....  S.B. ______.................  YES              YES           YES         
Utah: Bill passed both Houses 3/1/95.  S.B. 84.....................  NO               NO            NO          
 Sent to Governor.                                                                                              
Virginia: Bill passed both Houses 2/   H.B. 1845...................  NO               YES           NO          
 16/95. Sent to Governor.                                                                                       
West Virginia: Bills introduced in     H.B. 2494...................  NO               NO            NO          
 Senate and House.                     S.B. 362....................  NO               NO            NO          
Wyoming: Signed into law on 2/18/95..  Act No. 26 of 1995 Session..  YES              YES\1\        NO          
Federal: Introduced in the House on 2/ H.R. 1047...................  NO               YES           YES         
 24/95 with 6 co-sponsors.                                                                                      
----------------------------------------------------------------------------------------------------------------
\1\Voluntary disclosures warrant either de minimis or reduced penalties.                                        
                                                                                                                
Note: Other States with proposals not yet introduced: Alabama, California, Florida, Michigan, and Minnesota.    

                               Associated Oregon Industries,

                                        Salem, OR, March 17, 1995.
     Re legislation for a Federal environmental audit privilege.
     Hon. Mark O. Hatfield,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: I understand you are favorably 
     inclined to introducing legislation this Congress for a 
     federal environmental audit privilege. Your bill would be 
     modeled along the lines of the law Associated Oregon 
     Industries pushed through the Oregon legislature in 1993. On 
     behalf of Associated Oregon Industries' 2,400 primary members 
     and 14,000 associate members, I applaud you efforts to 
     actively pursue a federal law protecting environmental audit 
     reports.
       Oregon's environmental audit privilege was signed into law 
     by Gov. Barbara Roberts on July 22, 1994. Oregon's law is the 
     first of its kind in the nation. Since enactment, other 
     states have adopted similar laws.
       As a whole, Oregon industry works hard to comply with 
     today's complex and voluminous environmental laws. Perfect 
     compliance at all times, however, is a virtually unattainable 
     objective for large facilities. Compliance is made all the 
     more difficult when reports, generated during a company's 
     voluntary environmental audit, are not confidential. Prior to 
     Oregon's law, environmental agencies could obtain such audit 
     reports and use them against a company in an enforcement 
     action. By making environmental audit reports privileged. 
     Oregon's law protects companies from ``hanging themselves'' 
     as long as actions are taken to correct any violations found.
       Though Oregon's regulated companies are reacting positively 
     to the new state protections, Oregon's new law does not 
     complete the protection circle. The Environmental Protection 
     Agency is not bound by Oregon's environmental audit privilege 
     and occasionally inspects Oregon companies. This is why a 
     federal environmental audit privilege is needed.
       Thank you for your efforts. I look forward to working with 
     you.
           Sincerely,
                                                  James M. Whitty,
     Legislative Counsel.
                                                                    ____



                                             Port of Portland,

                                     Portland, OR, March 20, 1995.
     Hon. Mark O. Hatfield,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: On behalf of the Port of Portland, I 
     want to express the Port's strong support for the 
     environmental auditing privilege and voluntary disclosure 
     bill that you are sponsoring.
       The Port conducts periodic environmental audits at all of 
     its facilities. The enactment of a federal environmental 
     auditing privilege and voluntary disclosure provision will 
     encourage many more businesses, especially medium- and small-
     sized businesses, to start environmental auditing. By 
     limiting the fear that their voluntarily prepared 
     environmental audit reports will be used against 
     [[Page S4268]] them in enforcement proceedings, your bill 
     will spur this auditing activity.
       In addition to the environmental audit report evidentiary 
     privilege, I understand your legislation includes a voluntary 
     disclosure component to protect persons who discover 
     inadvertent environmental violations from criminal or civil 
     penalties, if they report the violations to the proper 
     authorities and remedy them promptly. We believe this 
     voluntary disclosure provision is as important as the 
     environmental auditing privilege. We are pleased to see that 
     your bill includes both of these elements.
       Your environmental audit privilege and voluntary disclosure 
     legislation should result in more companies conducting 
     environmental audits and in a substantial overall increase in 
     compliance with environmental requirements. Thank you for 
     your efforts. Please let me know if there are steps we can 
     take to support passage of this measure.
           Sincerely,
                                                     David Lohman,
     Director, Policy and Planning.
                                                                    ____

                                                 Litton Corp.,

                                    Arlington, VA, March 14, 1995.
     Hon. Mark O. Hatfield,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: I am writing on behalf of Litton 
     Industries, Inc. to express Litton's strong support for the 
     environmental auditing privilege and voluntary disclosure 
     bill that you are co-sponsoring with Sen. Brown, and that we 
     understand you intend to introduce imminently.
       Litton is a leader in worldwide technology markets for 
     advanced electronic and defense systems, and a major designer 
     and builder of large, multimission combat ships for the U.S. 
     Navy and allied nations. Litton employs approximately 30,000 
     people at numerous facilities across the country, including 
     approximately 200 people in our Grants Pass, Oregon facility.
       Litton conducts periodic environmental audits at all of its 
     U.S. facilities. The enactment of a federal environmental 
     auditing privilege and voluntary disclosure provision will 
     encourage many more businesses, especially medium- and small-
     sized businesses, to start environmental auditing programs, 
     without fear that their voluntarily prepared environmental 
     audit reports will be used against them in enforcement 
     proceedings.
       In addition to the environmental audit report evidentiary 
     privilege, we understand that your legislation includes a 
     voluntary disclosure component which protects persons who 
     discover inadvertent environmental violations, report the 
     violations to the proper authorities, and remedy them 
     promptly from criminal or civil penalties. Litton views the 
     voluntary disclosure provision to be as important as the 
     environmental auditing privilege, and we are gratified that 
     your bill will include both of these elements.
       Litton believes that your environmental audit privilege and 
     voluntary disclosure legislation will result in more 
     companies conducting environmental audits, and in a 
     substantial overall increase in compliance with environmental 
     requirements. Litton commends and will support your 
     environmental audit privilege and voluntary disclosure bill. 
     We believe that it represents a superior approach to 
     environmental compliance because it emphasizes improved 
     environmental quality rather than increased environmental 
     enforcement. Thank you for your efforts.
           Sincerely,
                                                   Mark V. Stanga,
     Environmental Affairs Counsel.
                                                                    ____



                                              Ontario Produce,

                                                   March 17, 1995.
     Senator Mark O. Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatfield: I would like to give my support for 
     your bill providing for a federal environmental audit 
     privilege similar to the Oregon law. It would allow 
     businesses to realistically correct problems without creating 
     more problems for themselves.
           Very truly yours,
     Robert Komoto.
                                                                    ____

                                                         AT&T,

                                   Washington, DC, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatfield: We at AT&T were pleased to learn 
     that you plan to introduce a bill establishing a privilege 
     for environmental audits and a limited ``safer harbor'' for 
     those who voluntarily correct and disclose environmental 
     infractions.
       AT&T has a strong record of environmental compliance, has 
     performed environmental self-audits for many years, and is 
     continuously improving its environmental compliance 
     management systems. AT&T has played a strong role in 
     protecting our environment through voluntary reductions in 
     materials usage and recycling.
       Environmentally responsible companies such as AT&T, which 
     perform voluntary self-assessments, are presently placed in 
     the uncomfortable position of creating documents in the 
     course of their voluntary compliance efforts which government 
     agencies and special interest groups will try to use against 
     them in penalty actions and citizen's suits.
       Similarly, enforcement agencies often assess large 
     penalties as a consequence of a responsible company's 
     voluntarily disclosure of an environmental infraction 
     discovered through voluntary audits and self-assessment 
     processes and voluntarily corrected. Absent these voluntary 
     audit and self-assessment procedures, such violations would 
     likely continue uncorrected, undisclosed, and unpenalized. 
     Thus, current enforcement policy works as a disincentive to 
     voluntary compliance, and thus works against the environment.
       AT&T salutes your efforts to legislatively remedy this 
     problem. AT&T would fully support a bill that would, under 
     appropriate conditions, protect environmental audits from 
     disclosure and create a safe harbor for companies that have 
     voluntarily discovered, corrected, and disclosed 
     environmental violations to the government.
       We look forward to working with you, your staff, and other 
     interested parties toward the enactment of such legislation. 
     Such legislation would add a measure of fairness to the 
     enforcement process and would remove disincentives to engage 
     in voluntary audits, compliance management, and disclosure 
     activities.
       By eliminating some of the inequities and disincentives in 
     the current enforcement scheme, we believe Congress will 
     cause a higher level of voluntary compliance by American 
     business with concomitant benefit to our environment.
           Very truly yours,
     Norm Smith.
                                                                    ____

                                        Georgia-Pacific Corp.,

                                   Washington, DC, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: Georgia-Pacific Corporation is very 
     supportive of the need for the Congress to enact an 
     environmental audit protection bill. The State of Oregon has 
     passed legislation to afford legal protection to the 
     environmental audits we perform in our manufacturing 
     facilities to help us in compliance with a host of 
     environmental permits (air, water, solid waste, hazardous 
     materials).
       The corporation is moving aggressively to increase the 
     audit program at every location to accomplish not only basic 
     compliance, but more importantly to elevate the importance of 
     environmental performance in the daily operation of our mills 
     and plants. We are ranking environmental performance on an 
     equal status of employee safety.
       The potential misuse of this information in third party 
     litigation is a major problem. We have experienced such 
     misuse in Mississippi in connection with our water discharge 
     permit at paper mill. If public policy demands proper 
     compliance and monitoring, it should encourage--not 
     discourage--more auditing by companies. We have been 
     disappointed by EPA's own policy on environmental audits that 
     discourages auditing.
       A number of States have enacted or are considering 
     legislation this year. However, this public policy should be 
     uniform nationwide. Thus, G-P's strong support for audit 
     protection legislation. G-P management in Oregon has advised 
     us of your interest in leading such legislation. Because of 
     your knowledge of our company in the State and your 
     responsible record on environmental issues, we strongly urge 
     you to take a leadership role on environmental audits.
       I can assure you that should you introduce legislation to 
     afford appropriate protection to environmental audits, G-P 
     will not only be appreciative of this effort, but we will 
     work very hard in support of your effort with other Senators.
           Sincerely,
                                                   John M. Turner,
     Vice President.
                                                                    ____



                                                 The GEON Co.,

                                    Cleveland, OH, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: The Geon Co. strongly supports the 
     Voluntary Environmental Audit Protection Act, which we 
     understand will be introduced tomorrow. This Act will benefit 
     not only responsible members of the regulated community, but 
     the public as well, by encouraging companies to implement 
     strong and effective environmental auditing and oversight 
     programs.
       It has been our experience that most potential compliance 
     problems are discovered and corrected through voluntary self-
     audits. The fear of discouraging past compliance problems, 
     especially when they may give rise to huge potential civil 
     penalties, is a very real disincentive to proactive 
     compliance programs that rely on internal and external self-
     audits.
       Although the U.S. EPA has claimed that voluntary self-
     disclosure issues can be addressed as a part of its 
     enforcement policies and that legislation is unnecessary, we 
     have, unfortunately, first-hand current experience that the 
     EPA has been woefully remiss in adopting or even pursuing any 
     enforcement policies that affect the purpose to which your 
     bill is addressed, and those policies the EPA has recently 
     proposed would fall far short of their state objectives.
       [[Page S4269]] We believe that current EPA enforcement 
     policies often single out for punishment environmentally 
     responsible proactive companies, which are thereby placed at 
     a competitive disadvantage with their less proactive 
     competitors.
           Sincerely,

                                           William F. Patient,

                                            Chairman of the Board,
     President and Chief Executive Officer.
                                                                    ____

                                                Polaroid Corp.

                                    Cambridge, MA, March 15, 1995.
     Re support for environmental audit privilege and voluntary 
         disclosure legislation; The Voluntary Environmental Audit 
         Protection Act.

     Hon. Mark Hatfield,
     US Senate, Hart Senate Office Building, Washington, DC.
       Hon. Senator Hatfield: Polaroid Corporation wishes to 
     express its support for legislation that you and Senator 
     Brown intend to introduce which will allow for a Federal 
     Environmental Audit Privilege and for Voluntary Disclosure 
     Protection. Polaroid is a worldwide manufacturer of various 
     Imaging Products, and the majority of its manufacturing 
     facilities are located in the Commonwealth of Massachusetts.
       Polaroid believes that the fundamental policy 
     justifications underlying the proposed ``Voluntary 
     Environmental Audit Protection Act'' are consistent with this 
     nation's laudable goals of encouraging higher levels of 
     responsible environmental protection rather than simply 
     continuing the promotion of ``command and control'' style 
     environmental regulations. The substantial and measurable 
     levels of environmental improvement that have been achieved 
     in the United States over the past twenty-five years are, in 
     large part, the result of the combined actions of the US 
     Congress, the administrative agencies of the Executive, and 
     American Industry. But new, more positive and cost effective 
     incentives than those needed in the 1970's and 80's are 
     required to enhance environmental protection and improve 
     environmental performance in the 1990's. Polaroid supports 
     this legislation and your actions involved in introducing and 
     overseeing its passage.
           Sincerely,

                                                 Harry Fatkin,

                                          Division Vice President,
     Health, Safety & Environmental Affairs.
                                                                    ____



                            Environmental Auditing Roundtable,

                             North Ridgeville, OH, March 16, 1995.
     Hon. Mark Hatfield,
     US Senate, Hart Senate Office Building, Washington, DC.
       Dear Chairman hatfield: Following are the views of the 
     Environmental Audit Roundtable on the ``Voluntary 
     Environmental Audit Protection Act'' that you and Senator 
     Brown are introducing. The intent of the bill is to encourage 
     environmental auditing for compliance and effective 
     management systems to ensure compliance and continual 
     improvement.
       The EAR, representing over 800 members, is the largest body 
     of professional Environmental Health and Safety Auditors in 
     the world.
       As a general rule, our organization should be silent on 
     activity that are external to the auditing process unless 
     those activities promotes improvement in audit quality. We 
     believe the concept of improving disclosure through a 
     privilige mechanism will improve the quality of the audit 
     process in the followng ways:
       1. Removing the fear of penalty when non compliance is 
     inadvertent will promote disclosure between the auditors and 
     the audited entity.
       2. The concept will encourage implementation of 
     Environmental Audits.
       3. The concept will facilitate the flow of information from 
     the regulated community to the agency with regard to 
     understanding and implementing environmental regulation. For 
     small and medium size enterprises that do not have large EH&S 
     staffs it is essential that an open dialogue with state and 
     federal agencies be promoted to assist in understanding and 
     implementing regulations. In addition, this
      exchange of information will provide valuable feedback on 
     ways in which to make the regulation more understandable 
     and efficient. Under our current regime of command and 
     control there is little or no information flow from the 
     regulated community to the agencies because the 
     consequences are unpredictable.
       4. The International Standards Organization (ISO) will be 
     issuing a series of standards in early 1996 that could 
     revolutionize the approach for managing and improving 
     environment performance. Linkage between our national 
     regulatory scheme and this international effort will depend 
     on the agencies ability to communicate with its regulated 
     customers. The concept of disclosure will elevate the level 
     of communication.
       In conclusion EAR believes that the legislation will 
     promote environmental dialogue at all levels and improve the 
     quality of the audit process. We believe the current 
     regulatory mechanism of police and fine should be replaced 
     with a cooperative program of disclose and correct. 
     Legislation that promotes information exchange between state 
     and federal agencies and their regulated customers creates 
     fertile fields for innovative solutions and continual 
     improvement.
           Regards,
     Ronald F. Black.
                                                                    ____



                                    Philips Electronics Corp.,

                                   Washington, DC, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatfield: Philips Electronics is pleased to 
     support your legislation known as the Voluntary Environmental 
     Audit Protection Act. This legislation makes eminent sense in 
     that it removes the threat of unreasonable penalty for an 
     action of good faith to correct certain situations arising 
     from noncompliance with environmental law. Philips 
     Electronics and the vast majority of U.S. manufacturers 
     strive to be good corporate citizens with respect to 
     environmental and other laws. Your legislation will create an 
     enforcement atmosphere that will encourage such good 
     corporate citizenry. We thank you for your leadership.
       Philips Electronics North America Corporation employs 
     nearly 30,000 Americans engaged in the manufacture and sale 
     of consumer and industrial electronics products and 
     electronic components under the brand names of Philips, 
     Magnavox and Norelco. Annual sales of more than $6 billion 
     rank Philips among the top 100 U.S. manufacturers.
           Sincerely,
     Randy Moorhead.
                                                                    ____

                               Collier, Shannon, Rill & Scott,

                                   Washington, DC, March 15, 1995.
     Re Senator Hatfield's and Senator Brown's audit and 
         disclosure protection legislation.

     Hon. Mark Hatfield,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Hatfield: On behalf of the Coalition for 
     Improved Environmental Audits (``CIEA''), we write in support 
     of your proposed legislation for environmental audit and 
     voluntary disclosure protection. We applaud your efforts in 
     conjunction with Senator Brown to introduce this legislation 
     into the Senate. CIEA was formed to support legislative 
     initiatives for the protection of environmental audits and 
     voluntary disclosures; therefore, we wholly support your 
     efforts to establish a qualified self-examination privilege 
     that helps encourage companies to conduct comprehensive 
     audits by reducing the risk that the audits will be used 
     against them in enforcement proceedings. CIEA membership 
     includes corporations and trade associations committed to 
     establishing useful and effective environmental auditing 
     programs. CIEA member companies own and operate facilities 
     throughout the United States and welcome your proposed 
     legislation to encourage and protect comprehensive 
     environmental audits at their facilities.
       CIEA supports your efforts to introduce legislation that 
     establishes a federal environmental audit privilege and 
     immunity for voluntary disclosures. The privilege will 
     encourage corporations to establish useful and effective 
     environmental auditing programs. The conditional immunity 
     described in Section 3803 of the proposed legislation will 
     encourage corporations to conduct candid assessments and 
     timely remediation of any noncompliance with environmental 
     laws. Recognition of a qualified environmental audit 
     privilege and immunity provision will enhance compliance with 
     environmental regulations without harming the ability of 
     enforcement officials to prosecute significant wrongdoers.
       U.S. industry can rely on a commitment made through 
     legislation. Therefore, your federal legislation for the 
     environmental audit privilege and voluntary disclosure 
     protection allows U.S. industry to conduct environmental 
     audits without the fear that the audit will end up being used 
     against them. Now that federal legislation for the 
     environmental audit privilege is moving forward (and seven 
     States have enacted similar statutes) EPA should establish 
     policy that reinforces this legislation.
       The CIEA membership appreciates the opportunity to support 
     your forthcoming legislation for the environmental audit 
     privilege and voluntary disclosure immunity. We believe a 
     reasoned discussion of the issues of environmental audit 
     privileges will result in the passage of your bill, which 
     will encourage and improve corporate environmental 
     compliance.
           Sincerely,
     John L. Wittenborn,
     Stephanie Siegel,
                                          Counsel to the Coalition
     for Improved Environmental Audits.
                                                                    ____

                                           The BFGoodrich Co.,

                                        Akron, OH, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Chairman Hatfield: The BFGoodrich Company wishes to 
     express its support for legislation that you and Senator 
     Brown are introducing--``The Voluntary Environmental Audit 
     Protection Act.''
       The BFGoodrich Company provides aircraft systems, 
     components and services and manufactures a wide range of 
     specialty chemicals. BFGoodrich manufactures in seven 
     countries and operates an international network of sales 
     offices and aircraft service centers with our Corporate 
     headquarters in Akron, Ohio.
       Because of the Company's international presence, we are 
     exposed to a wide variety of environment, health and safety 
     requirements. In order to ensure compliance with these 
     requirements, our Company conducts environment, health and 
     safety audits worldwide.
       [[Page S4270]] Only in the United States do we have a 
     system where responsibly managed organizations suffer severe 
     punishment for maintaining a review process to ensure 
     compliance. Our current system is subject to the whim of U.S. 
     EPA interpretations in the different regions of our nation. 
     This does not allow for certainty in interpretation or 
     fairness in enforcement.
       Your proposed legislation, along with the legislation 
     already enacted in those states that have chosen a new 
     approach for the regulated community, will establish a 
     mechanism where those who are sincere in trying to improve 
     the environment will benefit--while those who continue to 
     disregard good practices will be subject to the full 
     enforcement of the law.
       Your legislation is forward-looking and compatible with 
     international programs. It will encourage our government 
     agencies to focus their efforts on those who truly require 
     oversight while encouraging greater disclosure of information 
     and communications from the regulated community. Moreover, it 
     will provide regulatory agencies with information to improve 
     programs and better measure performance.
       BFGoodrich supports your proposed legislation and actions 
     aimed at introducing and overseeing its passage.
           Sincerely,

                                                Jon V. Heider,

                                          Executive Vice President
     and General Counsel.
                                                                    ____

                                           Corporate Environmental


                                          Enforcement Council,

                                   Alexandria, VA, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Chairman Hatfield: On behalf of the members of the 
     Corporate Environmental Enforcement Council (CEEC), I want to 
     express to your support for legislation that you and Senator 
     Hank Brown are introducing, ``The Voluntary Environmental 
     Audit Protection Act.''
       CEEC is an organization of 18 member companies comprised of 
     corporate counsel and management from a wide range of 
     industrial sectors that focuses exclusively on civil and 
     criminal environmental enforcement public policy issues. 
     CEEC's membership includes: AT&T, The BFGoodrich Company, 
     Caterpillar, Inc., Coors Brewing Company, DuPont, Eli Lilly 
     and Company, Hoechst Celanese Corporation, ITT Corporation, 
     Elf Atochem, North America, Inc. Kaiser Aluminum & Chemical 
     Corporation, Kohler Company, 3M, Owens Corning, Pfizer, Inc., 
     Polaroid Corporation, Procter and Gamble, Textron and 
     Weyerhaeuser Company.
       We commend you and Senator Brown for this legislation 
     because it is constructive environmental legislation. You 
     have recognized that environmental audits are valuable 
     management tools for improving environmental compliance, that 
     they are good for the environment, and that they will enhance 
     all of our collective efforts to improve environmental 
     performance.
       Mr. Chairman, we thank you and Senator Brown, and your 
     staffs, for developing this important legislation and stand 
     ready to work with you to see it become law.
           Sincerely,
                                                   Carl A. Mattia,
         Chairman of the Board; Vice President, Environment, 
           Health and Safety, The BFGoodrich Co.
                                                                    ____

                                            Coors Brewing Co.,

                                   Washington, DC, March 15, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatfield: We are pleased to support you and 
     Senator Brown in your efforts to enact the Environmental 
     Audit Disclosure Protection Act.
       Environmental audits are proven management tools. They 
     provide the opportunity for companies and public facility 
     operators to take a close critical look at their operations, 
     determine compliance with the thousands of complicated, often 
     confusing and overlapping environmental regulations and 
     statutes now on the books and fix any problem discovered. In 
     Colorado with the passage of a bill in 1994 that is very 
     similar to yours, we are creating a climate of some 
     certainty, wherein a company or facility operator knows what 
     kind of enforcement treatment to expect before investing in 
     expensive and time consuming environmental audits and then 
     disclosing results to state regulatory authorities. We 
     strongly believe this certainty, albeit limited, goes a long 
     way toward promoting self-initiated audits.
       However, that same certainty must be applied at the Federal 
     level to allow the Colorado statute, and others like it, to 
     be fully effective and widely utilized. That is why your bill 
     is so important. The debate over proper Federal legal 
     controls over the extent, form and utilization of voluntary 
     self audits and the use of the information obtained has been 
     a matter of controversy among regulators in Washington who 
     hold unchallenged power and control under the current command 
     and control system.
       Stanley Legro, EPA's Chief Enforcement official from 1975-
     77, wrote an interesting article entitled ``Self Audits and 
     EPA Enforcement'' in the Environmental Forum, December 1994. 
     The article follows this letter. To paraphrase Mr. Legro, he 
     says in order to reach the next plateau to improving the 
     quality of the environment there must be a shift from the 
     current enforcement mentality to providing incentives to 
     increase compliance. In moving to that next plateau Mr. Legro 
     says he ``favors maximizing incentives for voluntary self 
     audits.''
       We believe that your bill as drafted embraces Mr. Legro's 
     thoughts by striking an appropriate and constructive balance 
     between many of the relevant competing interests involved. 
     The bill provides protection for responsible entities against 
     being punished for doing the right thing without impending 
     enforcement against those who flaunt environmental laws. It 
     is truly refreshing without impeding enforcement against 
     those who flaunt environmental laws. It is truly refreshing 
     to see legislation that benefits the environment, benefits 
     responsible industry, protects against abuses, imposes no 
     costly mandates and doesn't spend a dime of taxpayers' money. 
     Indeed, it may even reduce the need for, and expense of, 
     certain enforcement resources.
       Coors looks forward to assisting you and Senator Brown to 
     secure early enactment of this legislation.
           Respectfully yours,

                                              Alan R. Timothy,

                                                         Director,
     Federal Government Affairs.
                                                                    ____

             [From the Environmental Forum, December 1994]

                    Self Audits and EPA Enforcement

                         (By Stanley W. Legro)

       The high degree of interest in the public meeting held by 
     EPA on auditing last summer is strong evidence of the 
     continuing importance of this vital subject. Indeed, it may 
     be fair to say that the subject of auditing necessarily 
     raises the most fundamental issue affecting the EPA: What is 
     the role of enforcement in achieving the agency's primary 
     purpose for being?
       The debate about voluntary self-audits and the use of the 
     information obtained has been ongoing since the earliest days 
     of the EPA. It was a hotly debated subject during my tenure 
     as the agency's chief enforcement official from 1975-77. It 
     continues to be a hotly debated issue today. Its long tenure 
     and the agency's inability to come to closure on a decision 
     are to a large extent attributable to the difficult policy 
     choices involved.
       The fundamental issue is whether the EPA's primary purpose 
     to improve the quality of the environment is best achieved by 
     providing positive incentives for voluntary compliance and 
     remediation or by punishing, for past actions or omissions, 
     those who have failed to meet their responsibilities to 
     preserve and maintain the quality of the environment. These 
     are not easily separable.
       During the nascent stages of the agency, strong enforcement 
     actions and substantial punishments for violators were 
     necessary to convince both the public and those in regulated 
     industries that environmental laws were to be taken seriously 
     and that failure to comply could have serious consequences. 
     During my tenure, there was still a substantial questioning 
     among many in the regulated communities as to whether these 
     environmental requirements were a passing fad that might be 
     repealed by the next Congress and whether the EPA really 
     meant business. An emphasis on vigorous enforcement was vital 
     to send an unequivocal answer to those questions.
       With the hindsight of time, I am convinced that the 
     decision made then was the right one, emphasis on vigorous 
     enforcement to send the clear message that or country had 
     made a decision to improve the quality of the environment, 
     and that those who tried to thwart the effort would face 
     severe consequences. While our country still has much left to 
     do, the progress to date is proof of the wisdom of choosing 
     robust enforcement.
       Today, we are faced with a somewhat different situation 
     which, I believe, calls for a different emphasis. One should 
     not gainsay the vital continuing role of vigorous 
     enforcement. We must begin by leaving no doubt whatsoever 
     that anyone who intentionally or recklessly harms or 
     endangers the quality of our environment, no matter how long 
     after the fact the transgression is discovered, should--
     indeed must--be subject to the full force of the law.
       Nevertheless, now there is a high degree of awareness of 
     the existence of environmental laws and regulations in 
     general, as well as the specific requirements for compliance, 
     among the regulated communities as well as among the public. 
     There is relatively little incidence of knowing or 
     intentional actions or omissions which harm or degrade the 
     environment. From my present perspective, a much bigger 
     barrier to continuing substantial progress is awareness of 
     environmental problems on the ground so that appropriate 
     remedial actions can be promptly commenced and effectively 
     accomplished in a timely manner.
       This brings us to environmental audits. What is the best 
     balance between the carrot and the stick to achieve the best 
     overall results? I recommend that today, while the stick 
     should always remain within easy reach, the emphasis must be 
     shifted to providing incentives for broad scale voluntary 
     compliance. In my opinion, the emphasis today should be on 
     those measures that will encourage environmental audits and 
     the benefits which they can produce in the real world.
       [[Page S4271]] Accordingly, I suggest that the results of 
     environmental audits should not be used by the EPA (or state 
     or local) enforcement authorities to seek penalties for any 
     past acts or omissions unless it is shown that such acts or 
     omissions were intentional with knowledge that they would or 
     were likely to result in serious harm to the environment or 
     were reckless.
       At the same time, I recommend that the results of 
     environmental audits be provided to the agency, and that they 
     serve as a benchmark for future remediation and correction of 
     practices, processes, and existing pollution which they have 
     revealed. In other words, prospectively the results of 
     environmental audits will be used to set a high standard, but 
     one that is fair because it offers an opportunity to take 
     those actions which would avoid or alleviate the 
     environmental harm.
       If the EPA discovers a violation by its own inspection or 
     as a result of information received from a third party, I 
     believe that it should pursue vigorously all remedies 
     available. However, if the discovery is a result of a 
     voluntary audit and is timely reported first to the EPA by 
     the source, policy considerations weigh in favor of 
     encouraging voluntary self audits and prompt follow-up 
     corrective actions.
       We also need to consider the nature and extent of 
     privilege, the right to confidentiality for the results of 
     environmental audits. Some jurisdictions have adopted this 
     approach. I have researched and considered the issue at 
     length. It is my conclusion that the use of a privilege 
     approach by the EPA is an unsatisfactory solution which does 
     not protect the environment nor provide maximum incentive to 
     initiate self audits. (However, it is vital to have a 
     privilege from disclosure to private parties and to any state 
     or local officials who refuse to join in the recommended EPA 
     approach.)
       From the perspective of the EPA, the purpose of this, as 
     any other policy, is to improve the environment. The agency 
     seeks to provide incentives for self audits to discover and 
     to commence prompt and effective remedial measures. The self 
     audit is merely a means; without assuring that the audit 
     results are put to use, the policy fails. The remedial 
     measures are the end. A privilege approach gives no assurance 
     that problems discovered will result in remedial actions 
     taken. Indeed, the privilege approach may actually discourage 
     prompt remedial measures in many cases.
       From the perspective of the corporate executive, the 
     privilege approach is also unsatisfactory for at least two 
     reasons. First, some information resulting from the audit is 
     likely to be subject to mandatory disclosure under certain 
     environmental laws and securities laws. Such partial 
     disclosure will often lead to investigations or audits that 
     independently uncover most, if not all, of the information 
     for which the privilege is claimed. Second, and even more 
     important from the point of view of a corporate official 
     deciding whether to undertake a voluntary self audit, a 
     privilege does nothing to eliminate liability for past 
     violations; a self audit increases the availability of 
     evidence to authorities to prove those violations. For these 
     reasons, a privilege approach would not be the best policy 
     for the EPA.
       In sum, in order to maximize the incentives to conduct self 
     audits and to apply the information obtained to realize the 
     greatest environmental improvement, I recommend the following 
     commitment by the agency's enforcement authorities:
       The EPA will continue to apply the full penalties for past 
     violations discovered by EPA inspections or by a means other 
     than as a result of a voluntary self audit and timely 
     reporting by the source. Penalties will not be assessed for 
     past violations discovered by a voluntary self audit and 
     voluntarily reported to EPA, unless the past violation was 
     intentional or resulted from reckless conduct. Last, once a 
     violation has been discovered and reported, the source will 
     be required promptly to take prospective actions necessary to 
     prevent a continuance or recurrence of the problem and to 
     commence appropriate remedial measures to protect and restore 
     the quality of the environment.
       All policy choices must be measured against the standard of 
     achieving the greatest amount of improvement in our 
     environmental quality. Today, I believe the balance should 
     favor maximizing the incentives for voluntary self audits. 
     Voluntary environmental self audits, reporting past 
     violations and pollution which requires remedial actions 
     discovered by those audits to the EPA, and undertaking prompt 
     and effective remedial measures offer the best opportunity to 
     achieve our national policy objectives in the shortest period 
     of time. This is the right policy choice for the EPA today.
                                                                    ____

                                                 American Forest &


                                            Paper Association,

                                   Washington, DC, March 20, 1995.
     Hon. Mark Hatfield,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Hatfield: I want to express the support of the 
     American Forest & Paper Association (AF&PA) for the efforts 
     you and Senator Brown have undertaken with regard to granting 
     a limited privilege to internal, voluntary environmental 
     audits.
       AF&PA is the major trade association representing the 
     forest products industry in this country. We account for 7 
     percent of all U.S. manufacturing output and directly employ 
     1.6 million workers in the manufacture of forest and paper 
     products and the recovery and recycling of paper. We 
     contribute $49 billion in direct payrolls to local economies 
     and rank among the top ten employers in 46 of the 50 states.
       AF&PA member companies are regulated under a wide range of 
     environmental programs, including the Federal Water Pollution 
     Control Act, the Clean Air Act, and the Resource Conservation 
     and Recovery Act. The Association strongly supports public 
     policies that will serve to increase compliance with 
     environmental laws by granting a limited protection for 
     information developed by companies through voluntary, 
     internal environmental audit programs. Some states, including 
     Oregon and Colorado, have already enacted statutes providing 
     such protections, and we believe the positive experience 
     gained in these instances bolsters the case for a similar 
     statute at the Federal level.
       Accordingly, AF&PA strongly supports the leadership you and 
     Senator Brown have shown in this field. Although we have not 
     had the opportunity to analyze your draft legislation in 
     detail, we believe that it will help to lay the foundation 
     for a necessary Federal debate. As a matter of policy, such 
     audits help to increase compliance with environmental 
     safeguards, and should be encouraged. When our analysis of 
     your proposal is completed, AF&PA will share that review with 
     you and your staff. We look forward to working with you to 
     expedite consideration of this important issue.
           Sincerely,

                                            B. Roland McElroy,

                                                   Vice President,
     Government Affairs.
                                                                    ____

                              Elf Atochem North America, Inc.,

                                    Arlington, VA, March 21, 1995.
     Hon. Mark Hatfield,
     U.S. Senate,
     Washington, DC.
     Subject: ``Voluntary Environmental Audit Protection Act'' to 
         amend Title 28 of the United States Code.
       Dear Senator Hatfield: On behalf of Elf Atochem North 
     America, Incorporated, I am writing to express our strong 
     support for the proposed ``Voluntary Environmental Audit 
     Protection Act'' introduced by both you and Senator Hank 
     Brown. Our company has developed a strong audit program which 
     will be further strengthened with passage of this proposed 
     legislation. The ability to move rapidly to fix problems and 
     share concerns throughout the company, without the legal 
     concerns that presently overshadow any audit program, will be 
     greatly enhanced.
       We are aware of the U.S. Environmental Protection Agency's 
     (EPA) effort to amend its current audit policy. However, in 
     our view EPA still takes the position that ``no good deed 
     goes unpunished,'' by providing for penalties when a company 
     voluntarily discloses violations that would not have been 
     found but for the use of good environmental management 
     through auditing.
       For some time, our management has been actively involved in 
     the conceptual issues concerning auditing and environmental 
     management. Frank Friedman, Elf Atochem N.A. Senior Vice-
     President for Health, Environment and Safety, is author of 
     the leading book on environmental management, ``A Practical 
     Guide to Environmental Management'' (Fifth Edition 1995) 
     published by the Environmental Law Institute. At EPA's 
     request, Mr. Friedman was the lead-off speaker at the 
     Agency's review of its audit policy in July 1994. In his 
     testimony, Mr. Friedman counseled, as did many others, on the 
     need ``for EPA to develop other indicators of enforcement 
     success rather than just on the basis of the number of cases 
     brought''.
       There is no question that EPA should retain a strong 
     enforcement program, but it is equally important that 
     enforcement be put in context, namely, as a vehicle for 
     assuring environmental compliance. If compliance is achieved 
     voluntarily; if problems are disclosed and dealt with more 
     rapidly, and more companies develop in-depth audit programs, 
     then EPA's enforcement goals are readily achieved.
       We also have, at this time, one important comment on the 
     proposed legislation. Proposed Section 3803(b) limits 
     voluntary disclosure if a company has ``committed repeated 
     violations''. We assume this language applies to companies 
     operating a single ``facility''. If not, such a provision 
     disadvantages companies operating multiple facilities with 
     respect to the audit disclosure protections provided in the 
     proposed bill. In such cases, if a violation has occurred at 
     one facility and a company wants to make certain that this 
     will not occur elsewhere it will be penalized. We are sure 
     this is not the intent of the bill and it should be 
     clarified.
       Again, we wish to commend you and your staff for the 
     careful and thoughtful way in which this proposed legislation 
     was crafted. The proposed bill recognizes that if companies 
     have strong, voluntary auditing programs in place, compliance 
     will follow. Because this legislation represents sound public 
     policy that will advance protection of human health and the 
     environment, Elf Atochem (as will, we are certain, other 
     members of the regulated community) is committed to 
     supporting passage of this legislation.
           Sincerely,
                                               Charles A. Kitchen,
     Director, Government Relations.
                                                                    ____

               [[Page S4272]] Environmental Protection Agency,

                                    Washington, DC, March 1, 1995.
     Hon. Joel Hefley,
     U.S. House of Representatives,
     Washington, DC.
       Dear Congressman Hefley: I am writing to express EPA's 
     opposition to the environmental audit privilege/penalty 
     immunity provisions currently contained in H.R. 1047. Our 
     concerns include the following:
       1. Environmental damage or even disasters caused by 
     recklessness or gross negligence would go unpunished under 
     certain provisions. Specifically, regardless of the harm 
     inflicted on people or the environment, H.R. 1047 would 
     eliminate all punishment for certain criminal and other 
     violations if they are ``voluntarily'' disclosed. As we read 
     H.R. 1047, a ``voluntary disclosure,'' for which total 
     immunity from civil and criminal penalties is granted, 
     includes information that is required to be reported--
     including notification of emergencies as well as routine 
     reports, such as Discharge Monitoring Reports under the Clean 
     Water Act. Truly ``voluntary'' disclosures should be 
     encouraged, but not by granting blanket immunity for criminal 
     and other harmful acts.
       2. The bill encourages litigation that will further burden 
     our already taxed judicial system. Specifically, the bill 
     uses many vague terms for lawyers to argue over. For example, 
     H.R. 1047 would allow violators to argue that many routine 
     business activities are ``compliance evaluations'' simply to 
     evade disclosure. This kind of litigation will drain both 
     private and government resources and in some cases prevent 
     quick action to address environmental emergencies--despite 
     the exceptions in the bill.
       3. The evidentiary privilege in this bill appears to go far 
     beyond the attorney-client and work product privileges by 
     potentially shielding from the government and the public 
     virtually all factual information about environmental 
     noncompliance--including facts underlying a self-evaluation 
     that might be crucial in holding violators accountable for 
     their actions. It appears that the privilege would apply to 
     much more than just audit reports and over documents related 
     to self-evaluations.
       4. It makes sense to give substantial penalty reductions to 
     those who come forward, disclose their violations, and 
     promptly correct them. The penalty immunity provision in the 
     bill, however, gives violators an unfair economic advantage 
     over their law-abiding competitors because it does not allow 
     federal and state governments to recover from the violator 
     even the economic benefit they gained from their 
     noncompliance.
       As you may know, Administrator Browner asked the Office of 
     Enforcement and Compliance Assurance last May to reassess 
     EPA's environmental auditing policy to see if we needed new 
     incentives to encourage voluntary disclosures and prompt 
     correction of violations uncovered in environmental audits. 
     Our review has been open and inclusive. In July 1994, and 
     again in January 1995, we held public meetings, and an Agency 
     auditing workgroup has met and continues to work with key 
     stakeholders. We have involved industry, trade groups, state 
     environmental commissions and attorneys general's offices, 
     district attorneys' offices, and environmental groups. We 
     have identified approaches that seem to have broad support 
     among these groups.
       Consistent with prior correspondence between several House 
     members and Administrator Browner, we expect to announce the 
     results of our reassessment process shortly. The issues 
     surrounding environmental auditing, voluntary self-
     evaluations and voluntary disclosure are complex, and we are 
     eager to share what we have learned with the Congress in 
     hearings. We think it is crucial that the House take the time 
     to hold appropriate hearings on the full range of views on 
     these issues, and to consider alternative approaches that 
     would have the support of a wide range of stakeholders. 
     Unfortunately, H.R. 1047 falls far short of that mark.
       I look forward to working with you and other members on 
     these very important and complex issues.
           Sincerely,
                                                 Steven A. Herman,
     Assistant Administrator.
                                                                    ____

                                     House of Representatives,

                                   Washington, DC, March 20, 1995.
     Mr. Steven A. Herman,
     Assistant Administrator, U.S. Environmental Protection 
         Agency, Washington, DC.
       Dear Mr. Herman: I am writing in response to your letter of 
     March 1, 1995. While I appreciate the Office of Enforcement 
     and Compliance Assurance taking the time to comment on H.R. 
     1047, I am disappointed that your letter merely recasts the 
     unsubstantiated objections that the Environmental Protection 
     Agency routinely has made for many years.
       Let me respond to each of your specific concerns and take 
     the opportunity to explain why protections for legitimate 
     environmental audits and voluntary disclosures are critical 
     for the public health and the environment.
       1. You argue that the voluntary disclosure provisions would 
     grant blanket immunity from criminal penalties and would 
     include information that is required to be reported under 
     environmental laws, such as Discharge Monitoring Reports, 
     etc.
       H.R. 1047 does not grant blanket immunity from prosecution. 
     In fact, there is no immunity from prosecution, but simply 
     immunity from administrative, civil and criminal penalties. 
     Further, the immunity is not a ``blanket'' immunity; there 
     are two important limitations. First, the presumption against 
     imposition of penalties is a rebuttable presumption. If the 
     presumption can be rebutted by the EPA (i.e., notice was not 
     given promptly, the information was not learned as a result 
     of an environmental audit or the problem is not corrected) 
     then penalties can be assessed. Second, if a regulated entity 
     has demonstrated a pattern of disregard for environmental 
     laws, they are not eligible for penalty immunity for 
     voluntary disclosures. In addition, information that is 
     voluntarily disclosed that may be required to be reported 
     under an environmental law would only be subject to the 
     immunity if it was learned as a result of performing the 
     environmental audit. This is a significant limitation.
       2. Your letter states that the legislation will encourage 
     litigation because it is vague and would allow violators to 
     argue that many routine business activities are compliance 
     evaluations to evade disclosure. You do not believe that the 
     exceptions in the bill will prevent such evasion and, 
     consequently, such litigation.
       H.R. 1047 does not privilege any reports or data that are 
     already required to be compiled or reported. Nor does it 
     restrict EPA's ability to request additional data. The 
     definition of a voluntary environmental self-evaluation is 
     clear in the bill. To qualify, the evaluation must be 
     initiated and carried out by the person for the purpose of 
     determining compliance with environmental laws. The EPA 
     itself has defined environmental auditing in its 1986 policy 
     statement in broader terms. Thus, in this legislation, there 
     are no vague terms behind which persons can hide to evade 
     disclosure of anything that is already required to be 
     reported. It is disingenuous for the EPA to suggest increased 
     litigation as a reason to oppose this bill, when many EPA 
     programs have just that effect.
       3. You argue that the evidentiary privilege goes beyond the 
     common law attorney-client and work product privileges.
       While H.R. 1047 does provide a more expanded privilege than 
     the attorney-client privilege, it does not protect the facts 
     that are required to be provided to the EPA. The EPA still 
     has complete access to the date and reports as it had before. 
     Moreover, the EPA can still obtain additional information 
     through investigations, information requests, sampling and 
     monitoring, etc. Facts available to the EPA in documents 
     required to be maintained by entities, reports that must be 
     provided to the EPA and information obtained from independent 
     sources are all still available to the EPA under H.R. 1047. 
     Presumably, these are the facts the EPA believes are 
     necessary to ensure compliance with environmental laws.
       4. Finally, you argue that the penalty immunity in the 
     legislation gives violators an unfair economic advantage over 
     their law-abiding competitors because it does not allow 
     federal and state regulators to recover the economic benefit 
     gained from noncompliance. Your concern that a violator will 
     derive an economic benefit is misplaced.
       Under H.R. 1047, as soon as a person voluntarily discloses 
     a violation, that person must promptly achieve compliance in 
     order to receive penalty immunity. These steps include 
     installing whatever equipment may be required. In cases where 
     there are environmentally irresponsible companies that have 
     avoided installing the requisite equipment, any economic 
     benefit that they may have derived will surely be cancelled 
     out--and then some--by having to quickly retrofit their 
     plants to come into compliance. It will likely cost them 
     significantly more to come into compliance at a later date 
     than it did for their competitors who designed compliant 
     systems from the outset. Further, how would the EPA propose 
     to determine any such economic benefit while assuring the 
     certainty required for companies to utilize
      the voluntary disclosure provisions? I believe this would be 
     terribly difficult to predict with certainty.
       In addition to the specific responses above, several other 
     points must be considered regarding H.R. 1047. Administrator 
     Browner has emphasized that ``enforcement is not an end in 
     itself.'' She has noted that the EPA must change its ways; 
     that the agency must do everything it can to focus on 
     compliance, and that obstacles to compliance must be 
     eliminated. H.R. 1047 does just that.
       As the EPA recognizes, an environmental enforcement policy 
     should not discourage compliance. Unfortunately, current EPA 
     and Department of Justice policies do precisely that. Under 
     the current enforcement scheme, responsible entities that 
     work to achieve environmental goals find themselves exposed 
     to greater liability than those in the regulated community 
     who do less or do nothing at all.
       The result of all this is that responsible members of the 
     regulated community are discouraged from conducting self-
     evaluations and from voluntarily disclosing violations 
     because of the tremendous risk of civil and criminal 
     enforcement. This negatively impacts compliance which, in 
     turn, negatively impacts public health and the environment. 
     In the end, the environment is the loser.
       Since the EPA's goal is compliance, not punishment, as 
     stated by the president last Thursday in announcing his 
     regulatory reform package, then surely it makes sense to 
[[Page S4273]] encourage compliance. This view is not without precedent 
at the federal level. Other federal agencies have recognized the need 
to encourage compliance, and have done so by implementing protections 
similar to those in H.R. 1047. The Federal Aviation Administration's 
policy serves as a perfect example that compliance should come first.
       The FAA policy is designed to provide incentives for 
     deficiencies to be identified and corrected by the companies 
     themselves, rather than risk air safety by awaiting the 
     results of an FAA inspection. In implementing the FAA policy, 
     agency officials emphasized that ``aviation safety is best 
     preserved by incentives . . . to identify and correct their 
     own instances of noncompliance and invest more resources in 
     efforts to preclude recurrence, rather than paying 
     penalties''. Surely, environmental protection is at least as 
     important as aviation safety and, therefore, deserves the 
     same incentives to enhance compliance.
       H.R. 1047 is critical because it provides incentives to 
     maximize environmental compliance and allocates resources to 
     compliance, not enforcement. I reiterate that intentional 
     violators cannot benefit from the legislation. And while 
     responsible members of the regulated community will indeed 
     benefit in terms of receiving much needed protections and 
     certainty, the real beneficiary of H.R. 1047 is the 
     environment.
       I look forward to your participation in this debate as the 
     legislative process moves forward.
           Sincerely,
                                                      Joel Hefley,
                                       Member of Congress.
                                 ______

      By Mr. STEVENS:
  S. 583. A bill to authorize the Secretary of Transportation to issue 
a certificate of documentation and coastwise trade endorsement for two 
vessels; to the Committee on Commerce, Science, and Transportation.


                    VESSEL DOCUMENTATION LEGISLATION

 Mr. STEVENS. Mr. President, today I am introducing a bill to 
provide certificates of documentation for the vessels Resolution and 
Perserverance.
  The hovercraft Resolution, Serial Number 77NS8701, and Perserverance, 
Serial Number 77NS8901, were built in 1983 and 1985, respectively, by 
British Hovercraft Corp. Limited in East Cowes, Isle of Wight, England.
  They are 70 feet in length, and have a maximum operating weight of 32 
tons.
  The craft were sold to Hovertravel, a United Kingdom company, which 
operated the craft in a passenger ferry operation from the Isle of 
Wight, England.
  The two hovercraft were sold by Hovertravel to the U.S. Navy in 1986 
Resolution, and 1989 Perserverance.
  They were modified by Textron in Panama City, FL to be used as 
training craft for U.S. Navy personnel to learn to operate hovercraft.
  After being declared surplus by the U.S. Navy, ownership of the 
vessels now resides with Champion Constructors, Inc., a subsidiary of 
Cook Inlet Region, Inc. of Anchorage, AK.
  Because the vessels were built in England, they are undocumented, and 
require a waiver of the Jones Act to be operated in the U.S. coastwise 
trade.
  Champion Constructors, Inc. intends for the vessels to be used 
between points in Alaska transporting cargo and passengers.
  It is my understanding that no other hovercraft of this type and size 
exist.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the record, as follows:

                                 S. 583

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled, That 
     notwithstanding sections 12106, 12107, and 12108 of title 46, 
     United States Code, and section 27 of the Merchant Marine 
     Act, 1920 (46 App. U.S.C. 883), as applicable on the date of 
     enactment of this Act, the Secretary of Transportation may 
     issue a certificate of documentation with a coastwise 
     endorsement for each of the vessels RESOLUTION (Serial Number 
     77NS8701) and PERSERVERANCE (Serial Number 77NS8901).
                                 ______

      By Mr. ROBB (for himself, Mr. Craig, Mr. Akaka, Mr. Harkin, Mr. 
        Rockefeller, Mr. Lugar, Mr. DeWine, Mr. Stevens, Mr. Cochran, 
        Mr. Wellstone, Mr. Ford, and Mr. Kerry):
  S. 584. A bill to authorize the award of the Purple Heart to persons 
who were prisoners of war on or before April 25, 1962; to the Committee 
on Armed Services.


                        PURPLE HEART LEGISLATION

  Mr. ROBB. Madame President, I introduce legislation which 
will correct an inequity that unfairly denies due recognition to some 
of America's worthiest veterans.
  Specifically, this bill would entitle prisoners of war from War World 
I, World War II, and Korea to receive the Purple Heart Medal for wounds 
which were sustained while being captured or while in captivity. 
Currently, only those veterans who suffer wounds while being captured 
or in captivity after April 25, 1962, are eligible for the Purple Heart 
Medal.
  While we might debate how best to recognize their sacrifice and 
hardship, one thing is abundantly clear; we should not differentiate 
between prisoners of war based solely on the date of the war in which 
they were captured.
  Madam President, as a Vietnam veteran who has had the privilege of 
leading marines in combat, and as a member of the Senate's Select 
Committee on POW/MIA Affairs, I am acutely aware of the hardships 
endured by service personnel who have been captured by hostile military 
forces. All of these servicemen have suffered mental and physical 
abuse, and many were tortured, beaten and starved while in confinement.
  Our prisoners of war from World War I, World War II, and Korea 
suffered various wounds and innumerable atrocities at the hands of 
their captors. Many continue to suffer from physical difficulties 
associated with their capture and confinement. The Purple Heart Medal 
would serve to put their service and sacrifice on par with the veterans 
of other wars, and will remind Americans of their sacrifices. It seems 
a fitting and overdue recognition.
  Madam President, I ask unanimous consent that the text of the bill, 
the supporting resolutions of the Military Order of the Purple Heart 
and the Disabled American Veterans, and the letters of support from the 
DAV, American Legion, AMVETS, and the Jewish War Veterans of the United 
States, be printed in the Record. I would also like to thank my 
colleagues, Senators Akaka, Cochran, Craig, DeWine, Ford, Harkin, 
Kerry, Lugar, Rockefeller, Stevens, and Wellstone for joining me as 
original cosponsors of this bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 584

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

     SECTION 1. AUTHORITY TO AWARD PURPLE HEART.

       (a) Authority To Make Award.--(1) Subject to paragraph (2), 
     the President may award the Purple Heart to a person 
     described in subsection (b) who was taken prisoner and held 
     captive before April 25, 1962.
       (2)(A) Except as provided in subparagraph (B), an award of 
     the Purple Heart under paragraph (1) may be made only in 
     accordance with the standards in effect on the date of the 
     enactment of this Act for the award of the Purple Heart to a 
     person described in subsection (b) who has been taken 
     prisoner and held captive on or after April 25, 1962.
       (B) An award of a Purple Heart may not be made under 
     paragraph (1) to any person convicted by a court of competent 
     jurisdiction of rendering assistance to any enemy of the 
     United States.
       (b) Eligible Persons.--(1) A person referred to in 
     subsection (a) is an individual--
       (A) who is a member of the Armed Forces of the United 
     States; and
       (B) who is wounded while being taken prisoner or held 
     captive--
       (i) in an action against an enemy of the United States:
       (ii) in military operations involving conflict with an 
     opposing foreign force;
       (iii) during service with friendly forces engaged in an 
     armed conflict against an opposing armed force in which the 
     United States is not a belligerent party;
       (iv) as the result of an action of any such enemy or 
     opposing armed force; or
       (v) as the result of an act of any foreign hostile force.
       (2) Any wound of a person referred to in paragraph (1)(A) 
     that is determined by the Secretary of Veterans Affairs to be 
     a service-connected injury arising from being taken prisoner 
     or held captive under a circumstance referred to in paragraph 
     (1)(B) shall also meet the requirement set forth in paragraph 
     (1)(B).
       (c) Relationship to Other Authority To Award the Purple 
     Heart.--The authority under this Act is in addition to any 
     other authority of the President to award the Purple Heart.
                                                                    ____


[[Page S4274]]

                                                The Military Order


                                          of the Purple Heart,

                               Springfield, VA, February 14, 1995.
     James Connell,
     Department State Director,
     Richmond, VA.
       Dear Mr. Connell: I received a call from the Senator's 
     office requesting a copy of the Resolution ``to authorize the 
     award of the Purple Heart Medal.''
       Enclosed is a copy of Resolution No. 94-038, passed by the 
     Convention Body at the National Convention of the Military 
     Order of the Purple Heart, in Des Moines, Iowa.
       If I can be of further assistance, contact this office.
           Sincerely,
                                            Edmund E. Janiszewski,
                                    National Legislative Director.

                         Resolution No. 94-038
     Re to authorize the award of the Purple Heart to persons who 
         were prisoners of war on or before April 25, 1962.
       Committee: Legislative/Service.
       Committee Action: Approve.
       Whereas: Current law provides for the award of the Purple 
     Heart Medal to POWs under certain circumstances, who were 
     captured on or after April 25, 1962; and
       Whereas: Senator Robb of Virginia has proposed a bill to 
     award the Purple Heart Medal to POWs captured prior to April 
     25, 1962; and
       Whereas: Presidents Kennedy and Reagan have issued 
     Executive Orders allowing for the award of the Purple Heart 
     Medal to civilians wounded under certain circumstances to 
     include terrorists attacks; now, therefore be it
       Resolved: That the Military Order of the Purple Heart 
     support legislation proposed by Senator Robb, which is 
     attached to this resolution; and be it further
       Resolved: That the Military Order of the Purple Heart of 
     the United States of America seek legislation, to negate the 
     award of the Purple Heart Medal to any civilian under any 
     circumstances; and finally be it
       Resolved: That copies of this resolution be forwarded to 
     the 62nd National Convention of the Military Order of the 
     Purple Heart of the United States of America, for adoption by 
     the delegates in assembly at Des Moines, Iowa, August 8th 
     thru August 13th, 1994.
       Submitted by Edmund F. Janiszewski, National Legislative 
     Director, July 14, 1994.
       Convention Action: Approved by Convention Body August 11, 
     1994.
                                                                    ____

                                   Disabled American Veterans,

                                Washington, DC, September 6, 1994.
     Hon. Charles S. Robb,
     State Office of Senator Charles S. Robb, Richmond, VA.
       Dear Senator Robb: Thank you for providing us with a copy 
     of your draft bill to authorize the award of the Purple Heart 
     to persons who were prisoners of war on or before April 25, 
     1962.
       This measure has the support of the Disabled American 
     Veterans. The delegates to our 1994 annual National 
     Convention adopted a resolution (copy enclosed) supporting 
     legislation for this purpose, and your draft bill is 
     consistent with that resolution.
       We appreciate the changes you made to address our concerns, 
     and we appreciate your efforts on behalf of this deserving 
     group of veterans.
           Sincerely,
                                               Richard F. Schultz,
                                    National Legislative Director.

           National Interim Legislative Committee Resolution


 authorize the purple heart medal to former pows of world war i, world 
   war ii, and the korean war for injuries received during captivity

       Whereas, Title 32, U.S. Code, effective April 25, 1962, 
     authorizes the award of the Purple Heart to prisoners of war 
     for wounds or injuries sustained as a result of beatings and 
     other forms of physical torture while in captivity; and
       Whereas, prior to April 25, 1962, the Purple Heart Medal 
     for former prisoners of war was only awarded to those who 
     were wounded or injured in action prior to or at the time of 
     capture or in an attempted or successful escape; and
       Whereas, former prisoners of war of World War I, World War 
     II and the Korean War were physically abused, beaten, 
     tortured and placed on forced work details, without concern 
     for their health by enemy guards and hostile civilians; and
       Whereas, many of these servicemen, while in captivity, 
     suffered from physical abuse, malnutrition and exhaustion, as 
     well as received wounds and injuries as a result of direct 
     and indirect action at the hands of their captors; NOW
       Therefore, be it Resolved that the Disabled American 
     Veterans in Nation Convention assembled in Chicago, Illinois, 
     August 20-25, 1994, supports the enactment of legislation to 
     provide the same consideration to the award of the Purple 
     Heart Medal to former prisoners of war held captive prior to 
     April 25, 1962, as afforded those captured after that date.
                                                                    ____

                                          The American Legion,

                                  Washington, DC, August 29, 1994.
     Mr. Jim Connell,
     Deputy State Director, State Office of Senator Charles S. 
         Robb, Richmond, VA.
       Dear Mr. Connell: Members of the staff of the American 
     Legion have reviewed Senator Robb's proposed bill authorizing 
     award of the Purple Heart medal. You have satisfied the 
     concerns we outlined in our March 31, 1994 letter and we have 
     no objection to the proposed bill as it now reads. The 
     Legion, however, still has no resolution recognized by the 
     membership on this subject and therefore, cannot specifically 
     and formally endorse the bill at this time.
       In most cases dealing with presentation of military awards 
     and decorations, we defer to the Department of Defense and 
     their appropriate directives. If your proposed bill 
     complements a service regulation you should encounter few 
     objections.
           Sincerely,

                                                Gerald M. May,

                                               Assistant Director,
     National Legislative Commission.
                                                                    ____



                                                       AMVETS,

                                      Lanham, MD, August 25, 1994.
     Hon. Charles S. Robb,
     U.S. Senate,
     Washington, DC.
       Dear Senator Robb: I am writing to express AMVETS' support 
     for your bill to award the Purple Heart to certain military 
     personnel who were taken prisoner before April 25, 1962.
       We are pleased that your bill will recognize the sacrifices 
     made by those who suffered at the hands of the enemy, 
     whatever the period of conflict.
       I would also like to express AMVETS' opposition to awarding 
     the Purple Heart to civilians who suffer injuries because of 
     terrorist action. While we in no way minimize anyone's 
     suffering, there is a fundamental difference between the 
     responsibilities incumbent upon each service member and their 
     civilian counterparts. That alone justifies the limitation on 
     the eligibility for the award.
       Thank you again for working for America's veterans, and we 
     look forward to working with you in the future.
           Sincerely,
                                                 Donald M. Hearon,

                                       National Commander.
                                 ______

      By Mr. LAUTENBERG:
  S. 586. A bill to eliminate the Department of Agriculture and certain 
agricultural programs, to transfer other agricultural programs to an 
agribusiness block grant program and other Federal agencies, and for 
other purposes; to the Committee on Agriculture, Nutrition, and 
Forestry.


                   the agriculture modernization act

 Mr. LAUTENBERG. Mr. President, I introduce the Agriculture 
Modernization Act. It would eliminate the Department of Agriculture, 
spinning off some programs to other parts of the Federal Government, 
and sell the two USDA buildings on the Mall.
  This legislation acknowledges what we all know: the Great Depression 
ended 50 years ago and it's 1995. Many USDA activities should go the 
way of the WPA and other programs which, like the USDA's commodity 
price programs, were set up to deal with the devastation caused by the 
Depression. With recovery, they were disbanded.
  House Budget Committee Chairman John Kasich and Senate Majority 
Leader Bob Dole have proposed eliminating four departments of 
government as part of their deficit reduction plan: Committee, 
Education, Energy, and Housing and Urban Development.
  If we want to scale back government, and eliminate wasteful 
bureaucracies, the USDA is an excellent place to start. It is the most 
obsolete and bloated of all Cabinet departments. The USDA tops the list 
for personnel, budget, and subsidies to those who need them least.
  In scaling back Government, let's start with a department that 
provides pork for agribusinesses that don't need it before we eliminate 
one that helps our children get an education and start on life.
  In evaluating the Kasich-Dole proposal, it is important to understand 
that the USDA has 109,000 employees, more than the other four 
departments combined. Furthermore, USDA's $62 billion budget dwarfs the 
budgets of Commerce, Energy, Education and HUD. Indeed, it is almost as 
large as these four departments combined.
  The Agriculture Modernization Act will eliminate wasteful programs in 
USDA. It will transfer important programs to agencies better suited to 
administer them, like HHS taking over the Food Stamp Program.
  And it will put all the money spent on commodity programs into a 
block grant which will be phased out completely over 5 years. This will 
permit the States to help recipients of agricultural entitlement 
programs adjust to a scaling back, and then loss, of benefits.
   [[Page S4275]] This bill will reduce the deficit by approximately 
$25 billion over 5 years. The Republican leaders
 have laid out ambitious deficit reduction goals to slice $500 billion 
off the Federal budget in the next 5 years. They propose to accomplish 
this without touching Social Security.

  That's going to mean very deep cuts. I'd like to see us start on 
subsidies to agribusiness and waste at USDA before we cut the safety 
net out from under our Nation's families and children.
  The Department of Agriculture's time has come and gone. It began 
under President Abraham Lincoln. In the 1860's, 60 percent of Americans 
were farmers and the USDA had 9 employees. Now only 2 percent of 
Americans are farmers and USDA has 109,000 employees worldwide.
  That's one bureaucrat for every five farmers.
  The commodity programs began in the Great Depression, when we did not 
know if America could feed itself. When we didn't know if grocery 
stores would have food on their shelves.
  But American agriculture is much different today. Our stores are 
stocked with inexpensive foods. And our most competitive commodities 
are fruits, vegetables, meats, and poultry that don't receive any price 
subsidies.
  It's time to extend free market principles to agriculture.
  There are 75,000 farmers with incomes over $250,000 per year who get 
an average of $26,000 in agricultural subsidies. My small 
businesspeople in New Jersey making a lot less don't get subsidies. 
And, the Republicans want to reduce the school lunch program, nutrition 
programs, take away summer jobs from kids, cut assistance to seniors 
and others for heating bills, and cut housing aid to AIDS patients, 
among others.
  I say we should start with USDA. No more aid for dependent 
agribusinesses.
  I support entitlement programs for kids and other groups in need. I 
think we should have a social safety net. But, agribusiness is not on 
my list of deserving beneficiaries.
  This bill sets priorities for deficit reduction. We should start by 
cutting obsolete programs and programs that benefit those who don't 
need Government assistance.
  Mr. President, I ask unanimous consent that an accompanying factsheet 
be inserted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
               The Agriculture Modernization Act of 1995

       This bill will eliminate the USDA in 1996. This will be 
     accomplished by eliminating some programs, phasing out the 
     commodity programs over five years and by transferring some 
     agencies and functions to other departments.


                       Programs to be Eliminated

       Market Promotion Program.
       Export Enhancement Program.
       Rural Telephone Program.
       Rural Electricity Program.
       Animal Damage Control Program.
       Commodity Credit Corporation.


  Block Grant--Administered by the Department of Commerce (Phased out 
                            over five years)

       All commodity programs including: Feed grains, wheat, rice, 
     cotton, tobacco, dairy, soybeans, peanuts, sugar, honey, and 
     wool.


                           Deficit Reduction

  This legislation will save approximately $25 billion over five years, 
not including administrative savings resulting from transferring 
duplicative functions to other departments and agencies. See attachment 
for details.
                       programs to be transferred

       Health and Human Services:
       Food Stamps, School Lunch, WIC and other nutrition 
     programs. Nutrition programs that are entitlements will 
     remain so.
       Food Safety and Inspection Service.
       Food and Consumer Service.
       Parts of the Animal and Plant Health Inspection Service.
       Commerce:
       Economic research and statistical programs.
       Agriculture research programs.
       Regulatory programs.
       Economic development programs.
       Parts of Animal and Plant Health Inspection Service.
       Interior: Forest Service, Natural resource, conservation 
     and environmental programs.
       Treasury: Credit and loan programs.
       FEMA: Crop insurance.
       EPA: Rural Utilities Service Water and Sewer 
     Programs.
                                 ______

      By Mr. HATCH (for himself, Mr. Heflin, Mr. Dole, Mr. Thurmond, 
        Mr. Grassley, Mr. Simpson, Mr. Kyl, Mr. Exon, Mr. Craig, Mr. 
        Ford, Mr. Lott, Mr. Ashcroft, Mr. Baucus, Mr. Bond, Mr. Breaux, 
        Mr. Campbell, Mr. Coats, Mr. Cochran, Mr. Cohen, Mr. Coverdell, 
        Mr. D'Amato, Mr. Faircloth, Mrs. Feinstein, Mr. Gramm, Mr. 
        Grams, Mr. Gregg, Mr. Helms, Mr. Hollings, Mrs. Hutchison, Mr. 
        Inhofe, Mrs. Kassebaum, Mr. Kempthorne, Mr. Lugar, Mr. Mack, 
        Mr. McCain, Mr. Murkowski, Mr. Pressler, Mr. Rockefeller, Mr. 
        Roth, Mr. Santorum, Mr. Shelby, Mr. Smith, Ms. Snowe, Mr. 
        Stevens, Mr. Thomas, Mr. Thompson, and Mr. Warner):
  S.J. Res. 31. A joint resolution proposing an amendment to the 
Constitution of the United States to grant Congress and the States the 
power to prohibit the physical desecration of the flag of the United 
States; to the Committee on the Judiciary.


               flag desecration constitutional amendment

  Mr. HATCH. Mr. President, throughout our history, the American people 
have revered the flag of the United States as the symbol of our Nation. 
The American flag represents in a way nothing else can, the common bond 
shared by a very diverse people. Yet whatever our differences of party, 
politics, philosophy, race, religion, ethnic background, economic 
status, social status, or geographic region, we are united as 
Americans. That unity is symbolized by a unique emblem, the American 
flag.
  As Supreme Court Justice, John Paul Stevens said in his dissent in 
the 1989 Texas flag-burning case:

       A country's flag is a symbol of more than nationhood and 
     national unity. It also signifies the ideas that characterize 
     the society that has chosen that emblem as well as the 
     special history that has animated the growth and power of 
     those ideas. . . . So it is with the American flag. It is 
     more than a proud symbol of the courage, the determination, 
     and the gifts of a nation that transformed 13 fledgling 
     colonies into a world power. It is a symbol of freedom, of 
     equal opportunity, of religious tolerance, and of goodwill 
     for other peoples who share our aspirations.

  For over 200 years, this proud banner has symbolized hope, 
opportunity, justice and, most of all, freedom, not just to the people 
of this Nation, but to people all over the world. I believe that the 
American flag is equally worthy of protection as the ideals for which 
it stands.
  This February 23 marked the 50th anniversary of one of the most 
dramatic moments in our Nation's history; the raising of the American 
flag on the Island of Iwo Jima by U.S. marines during World War II. 
That heroic image instantly came to symbolize the determination and 
courage of all of the brave Americans fighting in that great struggle 
for the very survival of
 America as a free nation. Fifty years later, it remains one of our 
Nation's most powerful images, reminding us that throughout our 
history, through the generations, from the Battle of Bunker Hill to 
Operation Desert Storm, on every continent and ocean, in every corner 
of the world, Americans have fought, and in many cases given their 
lives, fighting under this flag and for the Nation and the ideals it 
represents. By protecting that flag against acts of physical 
desecration, we honor their memory and their sacrifice.

  I am proud to rise today to introduce a constitutional amendment that 
would restore to Congress and to the 50 States the right to protect our 
unique national symbol, the American flag, from acts of physical 
desecration.
  Restoring legal protection to the American flag is not a partisan 
issue. Forty-three Senators, both Republicans and Democrats, have 
joined with Senator Heflin and myself as original cosponsors of this 
amendment.
  Restoring legal protection to the American flag would not overturn 
the first amendment. Rather, it would overturn an interpretation of 
that amendment by the Supreme Court, in which the Court, by the 
narrowest of margins, five to four, held that flag burning was a form 
of protected free speech. Distinguished jurists regarded as great 
champions of the first amendment agreed that physical desecration of 
the American flag does not fall within the ambit of the first 
amendment. In the case of Street versus New York, then Chief Justice 
Earl Warren wrote: 
[[Page S4276]] ``I believe that the States and the Federal Government 
have the power to protect the flag from acts of physical desecration 
and disgrace.'' Justice Abe Fortas wrote: ``The States and the Federal 
Government have the power to protect the flag from acts of desecration 
committed in public.'' Justice Hugo Black, generally regarded as a 
first amendment absolutist, stated: ``It passes my belief that anything 
in the Federal Constitution bars a State from making the deliberate 
burning of the American flag an offense.'' I believe the Court majority 
in the Texas versus Johnson case had it wrong; burning the flag is 
conduct and may be prohibited. This amendment would correct that error 
and restore to Congress and the State the power they historically had 
to protect the American flag from acts of physical desecration.
  Restoring legal protection to the American flag would not place us on 
a slippery slope precisely because the flag is so unique as our 
national symbol. There is no other symbol, no other object, which 
represents our Nation as does the flag. Accordingly, there is 
absolutely no basis for concern that the protection we seek for the 
American flag could be extended to cover any other object of form of 
political expression.
  Restoring legal protection to the American flag would not infringe on 
free speech. Freedom of speech is not and has never been absolute. We 
have laws against libel, against slander, and against obscenity. As a 
society, we can and do place limitations on both speech and conduct. 
The classic example is, of course, the prohibition against shouting 
fire in a crowded theater. You can't hold a demonstration in a 
courtroom. You can't make speeches using a bullhorn at 2 a.m. in a 
residential neighborhood. You can't destroy Government property or 
buildings as a means of protest. Right here in the U.S. Senate, we 
prohibit speeches or demonstrations of any kind, even the silent 
display of signs or banners, in the public galleries. I believe flag 
burning is in the same category as obscenity--conduct which is beyond 
the pale of acceptability even in a free society.
  For many years, our flag was protected, by Federal law and laws in 48 
States, from acts of physical desecration. No one can seriously argue 
that freedom of speech or freedom of expression was diminished or 
curtailed during that period. Restoring the protection of law to our 
flag would not prevent the expression, in numerous ways safeguarded 
under the Constitution, of a single idea or thought. It merely prevents 
conduct with respect to one unique, symbolic object, our Nation's flag.
  The effort to restore legal protection to our national symbol is a 
movement of the American people. It has been initiated by grassroots 
Americans; 91 civic, veterans, and patriotic organizations, led by the 
American Legion, joined together in the Citizens Flag Alliance, working 
to build support across this Nation for a constitutional amendment to 
restore the historical protection of our flag. Forty-six States have 
passed resolutions urging Congress to send a flag protection amendment 
to the States for ratification.
  Let this be clear: the Citizens Flag Alliance came to me, Senator 
Heflin, and other Members of Congress, before last November. We did not 
come to them. This effort is not generated from Capitol Hill. The 
Citizens Flag Alliance presented us with a report on their effort. They 
asked us for our support for their cause. We were pleased to agree. It 
is now up to Congress to heed the voice of the American people and pass 
this amendment.
  Mr. President, I ask unanimous consent that the text of the joint 
resolution be printed in the Record.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 31

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled (two-thirds of 
     each House concurring therein), That the following article is 
     proposed as an amendment to the Constitution of the United 
     States, which shall be valid to all intents and purposes as 
     part of the Constitution when ratified by the legislatures of 
     three-fourths of the several States within seven years from 
     the date of its submission by the Congress:

                              ``Article --

       ``The Congress and the States shall have power to prohibit 
     the physical desecration of the flag of the United States.''.

  Mr. HEFLIN. Mr. President, I rise today in support of a 
constitutional amendment to prevent the desecration of the American 
flag. As an original cosponsor along with Senator Hatch and 42 of our 
colleagues, I urge our colleagues to join in protecting the sanctity of 
this symbol of our great Nation. As I have said before on the Senate 
floor, I feel that the Supreme Court's decision in Texas versus 
Johnson, incorrectly places flag burning under the protection of the 
first amendment. In my judgement, it is our responsibility to change 
that decision and return the flag to the position of respect it 
deserves.
  Few people would disagree with the argument that the American flag 
stands as one of the most powerful and meaningful symbols of freedom 
ever created. In the dissent in Texas versus Johnson, Chief Justice 
Rehnquist states in his opening paragraph:

       For more than 200 years, the American flag has occupied a 
     unique position as the symbol of our Nation, a uniqueness 
     that justifies a governmental prohibition against flag 
     burning in the way * * * Johnson did here.

  Justice Stevens calls the flag a national asset much like the Lincoln 
Memorial. He states that:

       Though the asset at stake in this case is intangible, given 
     its unique value, the same interest supports a prohibition on 
     the desecration of the American flag.

  I must agree with Chief Justice Rehnquist and Justice Stevens in 
their belief that the flag should be protected from such desecration. 
However, I believe that the flag also has a tangible value. I feel that 
the court could have expressed an opinion that would have allowed 
protection to both values, for in that case, the flag was stolen.
  The flag holds a mighty grip over many people in this country. Its 
mystical appeal is as unique to every person as a fingerprint. 
Thousands of Americans have followed the flag into battle and thousands 
of these Americans have left these battles in coffins draped proudly by 
the American flag. Nothing quite approaches the power of the flag as it 
drapes those who died for it, or the power of the flag as it is handed 
to the widow of that fallen soldier. The meaning behind these flags 
goes far beyond the cloth used to make the flag or the dyes used to 
color Old Glory red, white, and blue. The flag reaches to the very 
heart of what it means to be an American. It would be a tragedy for us 
to allow the power of the flag to be undermined through the legal 
desecration of the flag. Allowing the legal burning of that flag 
creates a mockery of the great respect so many patriotic Americans have 
for the flag.


                            judicially wrong

  As I have stated before, I feel on many different levels that the 
Supreme Court's decision was wrong. I feel it was wrong for me 
personally, it was wrong for patriotism, it was wrong for this country, 
but perhaps most importantly, this decision was judicially wrong.
  I want to emphasize that although I am a strong believer in first 
amendment rights, I recognize that first amendment rights are not 
absolute and unlimited. There have been numerous decisions of the 
Supreme Court that limit freedom of expression.
  Some of history's great protectors of the freedom of speech have 
agreed that the first amendment is not absolute. Many of these 
protectors have agreed that the flag is a symbol of such profound 
importance that protecting it is permissible. Later in this speech I 
will be quoting from some of the protectors of both the flag and the 
first amendment such as Supreme Court Chief Justice Earl Warren, 
Justice Hugo Black, Justice John Paul Stevens, and Justice Oliver 
Wendell Holmes.
  In a landmark case reflecting the Supreme Courts long held belief 
that the freedom of expression is not absolute, the court in Shenk v. 
United States, 249 U.S. 47 (1919) stated that:

       The most stringent protection of free speech would not 
     protect a man in falsely shouting fire in a theater and 
     causing a panic.

  Justice Oliver Wendell Holmes stated that:

       The question in every case is whether the words [actions] 
     used are used in such clear circumstances and are of such a 
     nature as to create a clear and present danger that they will 
     bring about the substantive evils that the Congress has a 
     right to prevent.

  [[Page S4277]] Clearly the indignation caused by the Johnson decision 
and the fisticuffs which have broken out in flag burning attempts show 
that flag burning should not be protected by the first amendment. What 
if the flag burning had occurred in wartime? Certainly, a clear and 
present danger would be present.
  Justice Stevens wrote in Los Angeles City Council v. Taxpayers for 
Vincent 466 U.S. 789 (1984) that:

       The first amendment does not guarantee the right to imply 
     every conceivable method of communication at all times and in 
     all places.

  Arguments have been made that limitations on the freedom of 
expression refer only to bodily harm,
 however, the Supreme Court has recognized the need for individuals to 
protect their honor, integrity, and reputation when injured by libel or 
slander. See: New York Times v. Sullivan, 376 U.S. 254 (1964) 
(providing standards regarding the libel of public figures); Time v. 
Hill, 385 U.S. 374 (1967) (providing standards regarding libel of 
private individuals).

  These holdings protect an individual's honor from defamation. I see 
no reason why the honor of our flag should not be protected.
  Arguments have also been made that limitations on free speech involve 
only civil suits. However, the Court has continually upheld criminal 
statutes involving obscene language and pornography. There is: New York 
v. Ferber, 458 U.S. 747 (1982) (upholding a New York statute regarding 
child pornography); Miller v. California, 413 U.S. 15 (1973) (this case 
provides much of the current legal framework for the regulation of 
obscenity).
  The U.S. Supreme Court has even upheld criminal statutes involving 
draft card burning. In United States v. O'Brian, 391 U.S. 367 (1968), 
the Court upheld the Federal statute which prohibited the destruction 
or mutilation of a draft card. In reaching this decision the Court 
expressly stated:

       [W]e cannot accept the view that an apparently limitless 
     variety of conduct can be labeled ``speech'' whenever the 
     person engaging in the conduct intends thereby to express an 
     idea.

  Certainly the people of America have a right to expect that the 
honor, integrity, and reputation of this Nation's flag should be 
protected. If draft card burning can be prohibited, surely burning the 
American flag can also be prohibited. Does a draft card have more honor 
than the American flag? Certainly not.
  In an earlier decision involving the desecration of the flag, Chief 
Justice Earl Warren wrote in dissent in Street v. New York, 394 U.S. 
577 (1969):

       I believe that the States and the Federal Government do 
     have the power to protect the flag from acts of desecration 
     and disgrace * * * however, it is difficult for me to imagine 
     that, had the Court faced this issue, it would have concluded 
     otherwise.

  In this same case, Justice Hugo Black dissented stating:

       It passes my belief that anything in the Federal 
     Constitution bars a State from making the deliberate burning 
     of the American flag an offense.

  I do not think that anyone can question that Hugo Black and Earl 
Warren were champions of the first amendment, but they recognized that 
the flag was something different, something special. The Supreme Court 
substantiated this view in Smith v. Coguen, 415 U.S. 566 (1974), when 
the majority of the Court noted that:

       [C]ertainly nothing prevents a legislature from defining 
     the substantial specificity what constitutes forbidden 
     treatment of the United States flags.

  Finally I would like to quote from Justice Stevens in Texas v. 
Johnson, when he says about the flag:

       It is a symbol of freedom, of equal opportunity, of 
     religious tolerance, and of good will for other people who 
     share our aspirations. The symbol carries its message to 
     dissidents both home and abroad who may have no interest at 
     all in our national unity and survival.

  I am a strong believer that the rights under the first amendment 
should be fully protected and do not feel that an amendment changing 
these rights should be adopted except in very rare instances. The 
Founding Fathers, in drafting article V of the Constitution, intended 
that if it would be extremely difficult to amend the Constitution, 
requiring a two-thirds vote of both Houses of Congress and a difficult 
ratification process requiring the vote of three-fourths of the States. 
The history of this country shows that only 27 amendments to the 
Constitution have been adopted and only 17 after the Bill of Rights--
containing the first 10 amendments--were ratified.
  Some may ask why have a constitutional amendment; why not try 
legislation? To those I would say the Senate has passed statutes 
concerning flag desecration. As a body we have tried to oppose the 
protection of flag desecration, but statutory law has not worked. We 
have a number of groups that have joined together to form the Citizen's 
Flag Alliance. There are about 90 organizations in this wide-ranging 
coalition. In addition, 46 States' legislatures have passed 
memorializing resolutions calling for the flag to be protected by the 
Congress.
  In my judgment, we should heed this call and act decisively to ensure 
that the American flag remains protected and continues to hold the high 
place we have afforded it in both our hearts and history. The flag is 
indeed an important national asset which we must always support as we 
would support the country herself. In closing, I want to share with you 
the eloquent words of Henry Ward Beecher's work, ``The American Flag,'' 
which expresses this sentiment:

       A thoughtful mind, when it sees a national's flag, sees not 
     the flag only, but the Nation itself; and whatever may be its 
     symbols, its insignia, he reads chiefly in the flag the 
     government, the principles, the truths, the history which 
     belongs to the Nation that sets it forth.

  Mrs. FEINSTEIN. Mr. President, I compliment my colleague on the 
Judiciary Committee and the Senator from Alabama for his very 
thoughtful statement and constitutional amendment. I would very much 
appreciate being listed as a cosponsor of that amendment.
  I thank the Senator for his words because I think they were cogent. I 
also believe they reflect the views of the American people.
  Mr. HEFLIN. I thank the Senator.
  Mr. MACK. Mr. President, this past election demonstrated the desire 
of American citizens everywhere for change. People are frustrated with 
the direction in which this country has been heading and the skewing of 
priorities and values. One example of how standards and basic values 
are slipping was the 1989 Supreme Court ruling which permitted the 
desecration of our Nation's flag.
  The American flag has always been a symbol of freedom and democracy 
throughout the world. It has guided thousands upon thousands of 
American service men and women as they have fought and died in defense 
of our basic freedoms.
  The Court's decision struck at the heart of everything we hold dear 
in America. The flag is our most cherished symbol of liberty and is 
recognized throughout the world as an emblem of hope for those 
struggling for freedom. We should not condone its willful destruction.
  Mr. President, I support the proposal for a constitutional amendment 
to protect the sanctity of the American flag. With this amendment, the 
first amendment can be upheld while we clearly declare our reverence 
for and dedication to our most cherished symbol of freedom--the 
American flag.
  Mr. CRAIG. Mr. President, I am pleased to join my distinguished 
colleagues in proposing a constitutional amendment to protect the flag 
of the United States.
  We Americans are not one race, nor are we one creed. We are an 
amalgam of the world's people come together to form a nation. And to 
symbolize that union, we have chosen a fabric that weaves together our 
many races, customs, and beliefs: the American flag.
  No other emblem, token, or artifact of our Nation has been defended 
to the death by legions of patriots. No other has drawn multitudes from 
abroad with the promise of freedom. No other has inspired generations 
with the belief that life, liberty, and the pursuit of happiness are 
the birthright of every human being.
  Old Glory holds a unique place in the hearts of Americans, and that 
is why they have requested--indeed, demanded--unique protection for it.
  Several years ago, Congress attempted to fashion legislation for this 
purpose, but it just did not work.
  Some people probably thought that was the end of the story. They 
were 
[[Page S4278]] wrong. The American people did not give up; they 
continued to debate and discuss this matter. And they succeeded in 
passing memorials in 43 States urging Congress to take action to 
protect the flag from physical desecration. Some of my colleagues may 
recall last year, on Flag Day, I placed those memorials in the 
Congressional Record for all to see.
  Mr. President, the legislatures submitting those memorials represent 
nearly 229 million people--more than 90 percent of our country's 
population. They did not pass these memorials easily or swiftly. In 
legislature after legislature, the record shows these memorials were 
given serious and thorough consideration.
  Now it is time for the U.S. Congress to match that resolve. Today, in 
response to the demand of the American people, we are offering this 
amendment. Mr. President, I urge all my colleagues to join us in 
supporting this necessary and appropriate measure to safeguard the flag 
of our Nation.
  Mr. KEMPTHORNE. Mr. President, I rise today in strong support of 
efforts to protect the flag of the United States. I am pleased to join 
my colleagues in introducing a resolution proposing a constitutional 
amendment to prohibit the desecration of the flag.
  Mr. President, the support for this amendment is, quite simply, 
overwhelming; 46 State legislatures have already passed memorializing 
resolutions requesting the Congress to pass an amendment to protect the 
flag. I am pleased to note my home State, Idaho, passed just such a 
resolution 2 years ago. In asking the Congress to present an antiflag 
desecration amendment to the States for ratification, the Idaho 
Legislature stated,

       ... the American Flag to this day is a most honorable and 
     worthy banner of a nation which is thankful for its strengths 
     and committed to curing its faults, and a nation which 
     remains the destination of millions of immigrants attracted 
     by the universal power of the American ideal ....

  Should not the symbol of this ideal be protected? Since 1777, when 
the Second Continental Congress passed a resolution describing what the 
flag of the fledgling Nation should be, the Stars and Stripes has stood 
for all that we hold dear. While great leaders of this Nation have come 
and gone, the flag has been an American constant. Through the Civil 
War, two World Wars, the Depression, and times of domestic crisis, Old 
Glory has flown proudly, serving as a symbol to all the world that 
freedom, justice, and liberty remain alive in the United States.
  As a member of the Senate Armed Services Committee, I have had the 
opportunity to meet the men and women of our Armed Forces around the 
world. These individuals put their lives on the line regularly, so that 
we may live in peace and safety. And while they are serving us, the 
American public, they do so under the Stars and Stripes. For those who 
are stationed overseas, the flag represents the rights and freedoms 
which they stand prepared to defend, even while on foreign ground. It 
also stands for their home, the Nation which proudly awaits their 
return when their duties are done. For those who have finished their 
service to their country, the flag is a constant reminder that the 
ideals for which they fought still live, and that their sacrifices were 
not in vain.
  In 1867, Senator Charles Sumner expressed his sentiments about the 
flag. His words, I think, are most appropriate to be repeated at this 
time. He said:

       There is the national flag. He must be cold, indeed, who 
     can look upon its folds rippling in the breeze without pride 
     of country. If in a foreign land, the flag is companionship, 
     and country itself with all its endearments ... White is for 
     purity; red for valor; blue, for justice. And altogether, 
     bunting, stripes, stars, and colors, blazing in the sky, make 
     the flag of our country, to be cherished by all our hearts, 
     to be upheld by all our hands.

  Mr. President, how can we continue to uphold the flag to the honor it 
deserves if we allow it, the symbol for all for which this Nation 
stands, to be willfully desecrated and defiled? The courts have said we 
can not protect the flag by statute; our only remedy is to amend the 
Constitution. So, I stand here today to express my wholehearted support 
for the resolution which will be introduced today to propose just such 
an amendment. I hope my colleagues will join me in acting to protect 
our flag and all that it represents of our past, our present, and our 
future.
  Mr. PRESSLER. Mr. President, I rise to announce my cosponsorship of a 
joint resolution to amend the U.S. Constitution to allow Congress and 
the States to prohibit the desecration of the American flag.
  Having served two tours in the Vietnam war as a second lieutenant in 
the Army, our flag has a deep personal meaning for me. I experience a 
feeling of pride when I see the Stars and Stripes flying in front of a 
military base, on top of the U.S. Capitol Building here in Washington, 
or in a small town parade in South Dakota. I feel sick to my stomach 
when I think of its desecration by my fellow Americans.
  The American flag is a dramatic living symbol of the principles for 
which this great country stands--liberty, due process, justice for all. 
Our flag is an emblem of the ideals which set our Nation apart from all 
others.
  When someone willfully desecrates the flag, he or she is committing a 
malicious act of violence that incites those Americans who have 
dedicated their lives to uphold the values we cherish. It tramples the 
honor of millions of soldiers--men and women--who served, fought, and 
died to preserve the values which the flag represents. It strikes at 
the honor of the untold number of civilians who have worked in 
industries behind the lines to support our military forces.
  Mr. President, in Johnson versus Texas (1989), the Supreme Court 
ruled that desecrating the flag is free speech protected by the first 
amendment. In response, Congress overwhelmingly passed the Flag 
Protection Act of 1989. However, the following year, in United States 
versus Eichmann (1990), the Court struck down this statute as an 
impermissible infringement on the first amendment.
  I disagree with the Supreme Court's rulings. I believe it is entirely 
appropriate for Congress to enact legislation to protect from 
desecration the primary symbol of our great Nation. However, unless the 
Johnson and Eichmann decisions are overturned by a subsequent Court, it 
is clear that only a constitutional amendment will ensure the validity 
of any State or Federal statute banning flag desecration.
  Opponents of our effort to protect the flag argue that free speech is 
among the most sacred rights enjoyed by Americans. They believe that 
this amendment limits their right to freedom of speech. I certainly 
agree with the need to vigilantly guard the first amendment. No other 
society on this planet is more tolerant of different viewpoints and 
opinions than America. But flag desecration is more than just speech. 
It is among those acts of public behavior so offensive and harmful that 
they fall outside of the protections of the first amendment.
  For example, one of the famous limits of free speech is that one 
cannot shout ``fire!'' in a crowded move theater. Malicious and 
defamatory speech, such as slander and libel, also are not protected by 
the first amendment. Obscenity does not enjoy the protection of the 
first amendment. We do not permit people to freely deface a synagogue 
or church buildings in the name of free speech. Likewise, physical 
desecration of the flag through burning, trampling, or any other method 
is not free speech protected by our Constitution. It is offensive 
conduct that does not deserve protection by the first amendment.
  I am therefore proud to join with my colleagues in supporting a 
constitutional amendment to protect the American flag. Since the 
Johnson ruling, 43 States have passed resolutions calling on Congress 
to pass a flag desecration amendment for consideration by the States. 
Mr. President, I urge my colleagues to carry out the clear will of the 
American people by supporting this resolution.
  Mr. D'AMATO. Mr. President, generations of immigrants have surmounted 
incredible obstacles to reach our shores and experience true American 
freedom. Our Nation's flag has welcomed these weary travelers for 
hundreds of years. For these people, the U.S. flag is more than just a 
simple patchwork of cloth, it is the patchwork of our values, our 
beliefs, and our freedoms. It is our history.
  During this history, many brave Americans sacrificed their lives for 
the flag. At Malmedy, Khe Sanh, Inchon, Iwo Jima, Kuwait City, and in 
numerous other places, Americans fought and 
[[Page S4279]] died for democracy, freedom, and justice. Indeed, our 
flag represents these virtues. It would be an insult to their memory if 
we allowed the continued desecretion of our flag. This practice must 
end, and end now.
  Ms. SNOWE. Mr. President, I am proud to join Senators Hatch, Heflin, 
and others in cosponsoring the proposed constitutional amendment to 
grant to States and Congress the power to prohibit the physical 
desecration of the flag of the United States. Our flag occupies a truly 
unique place in the hearts of millions of citizens as a cherished 
symbol of freedom and democracy. As a national emblem of the world's 
greatest democracy, the American flag should be treated with respect 
and care. Our free speech rights do not entitle us to simply consider 
the flag as personal property, which can be treated any way we see fit 
including physically desecrating it as a legitimate form of political 
protest.
  The flag is not just simply a visual symbol to us--it is a symbol 
whose pattern and colors tell a story that rings true for each and 
every American. The 50 stars and 13 stripes on the flag are a reminder 
that our Nation is built on the unity and harmony of 50 States. And the 
colors of our flag were not chosen randomly: red was selected because 
it represents courage, bravery, and the willingness of the American 
people to give their life for their country and its principles of 
freedom and democracy; white was selected because it represents 
integrity and purity; and blue because it represents vigilance, 
perseverance, and justice. Thus, this flag has become a source of 
inspiration to every American wherever it is displayed.
  For these reasons and many others, a great majority of Americans 
believe--as I strongly do--that the American flag should be treated 
with dignity, respect, and care--and nothing less.
  Unfortunately, not everyone shares this view. In June 1990, the 
Supreme Court ruled that the Flag Protection Act of 1989, legislation 
adopted by the Congress in 1989 generally prohibiting physical 
defilement or desecration of the flag, was unconstitutional. This 
decision, a 5-to-4 ruling in U.S. versus Eichman, held that burning the 
flag as a political protest was constitutionally protected free speech. 
The Flag Protection Act had originally been adopted by the 101st 
Congress after the Supreme Court ruled in its Texas versus Johnson case 
that existing Federal and State laws prohibiting flag burning were 
unconstitutional because they violated the first amendment's provisions 
regarding free speech.
  I profoundly disagreed with both rulings the Supreme Court made on 
this issue. In our modern society, there are still many different 
forums in our mass media, television, newspapers and radio and the 
like, through which citizens can freely and fully exercise their 
legitimate, constitutional right to free speech, even if what they have 
to say is overwhelmingly unpopular with a majority of American 
citizens.
  The constitutional amendment being introduced today has been 
carefully drafted to simply allow the Congress and individual State 
legislatures to enact laws prohibiting the physical desecration of the 
flag, if they so choose. It certainly does not stipulate or require 
that such laws be enacted. When considering the issue, it is helpful to 
remember that prior to the Supreme Court's 1989 Texas versus Johnson 
ruling, 48 States, including my own State of Maine, and the Federal 
Government had anti-flag-burning laws on their books for years.
  Whether our flag is flying over a ball park, a military base, a 
school, or on a flag pole on Main Street, our national standard has 
always represented the ideals and values that are the foundation this 
great nation was built on. And our flag has come not only to represent 
the glories of our Nation's past, but it has also come to stand as a 
symbol for hope for our Nation's future. Mr. President, I urge my 
colleagues to support this important amendment.
  Mr. FORD. Mr. President, there are many reasons for protecting the 
unique symbol of the American flag, from the basic liberties it 
represents to the promise of a better future. But some of the greatest 
reasons for protecting the flag occurred thousands of miles away from 
our own shores.
  For example, 50 years ago, just days after American troops had 
claimed victory at Iwo Jima, six soldiers helped raise the American 
flag on the highest point of the island. You can see a soldier on the 
far left with both arms reaching skyward. It's unclear whether he's 
just released the flag pole, or if he's trying to touch the flag he 
fought so hard for, one last time.
  And perhaps it was the last time he touched the American flag, for 26 
days later, he died on the island he had helped claim.
  The soldier was Pvt. Franklin Sousley of Kentucky, and his image in 
this famous photograph not only has frozen in time his historic 
efforts, but tied them inextricably to the symbolism of the American 
flag.
  The flag that flew at Iwo Jima serves as a reminder of how war 
changes the course of a life, of a nation, of a world, so that even 
individuals who were never there, recognize that those hours of 
destruction and suffering have altered the future irrevocably.
  But Private Sousley's outstretched arms also mirror the actions of 
the millions who've reached out for all that our flag symbolizes, from 
the basic liberties written into our Constitution to the dreams of a 
better future for their families.
  That is why I believe so strongly that the physical integrity of the 
American flag must be protected. Back in 1989, the U.S. Supreme Court 
declared unconstitutional a Texas flag desecration statute, ruling that 
flag desecration was free speech protected under the first amendment.
  In response to that decision, the Senate overwhelmingly passed the 
Flag Protection Act, which was also declared unconstitutional. The 
Supreme Court's action made it clear that a constitutional amendment is 
necessary for enactment of any binding protection of the flag.
  Up to this point, neither House of Congress has been able to garner 
the two-thirds supermajority necessary for passage of a constitutional 
amendment. But because grassroots support for this amendment continues 
to grow, I have joined with Members on both sides of the aisle to again 
try passing this amendment. I am hopeful that this time we'll get the 
necessary votes.
  Clearly no legitimate act of political protest should be suppressed. 
Nor should we ever discourage debate and discussion about the Federal 
Government. The narrowly written amendment gives Congress and the 
States the ``power to prohibit the physical desecration of the flag of 
the United States,'' without jeopardizing those rights of free speech.
  Fifty years ago, the American flag flying over Iwo Jima literally 
meant life for the flyers of crippled B-29's who would have died at sea 
if they had not had the island to land on.
  Today, the flag that hangs in schoolrooms, over courthouses, in 
sports stadiums, and off front porches all across America, has a bit of 
the battle of Iwo Jima woven into its fabric.
  Mr. President, I would say that's something worth protecting.
  Mr. THURMOND. Mr. President, I rise today as an original cosponsor of 
a proposed constitutional amendment authorizing the Congress and the 
States to prohibit the physical desecration of the American flag.
  In June of 1989, the Supreme Court issued a ruling in Texas versus 
Johnson which allows the contemptuous burning of the American flag. 
Immediately after that ruling, I drafted and introduced a proposed 
constitutional amendment to overturn that unfortunate decision.
  After bipartisan discussions with Members of the Senate and President 
Bush, the Senate voted on a similar proposal which I cosponsored. 
During this time, the Supreme Court ruled in U.S. versus Eichman that a 
Federal statute designed to protect the flag from physical desecration 
was unconstitutional. The Texas decision had involved a State statute 
designed to protect the flag.
  On June 26, 1990, the Senate voted 58-42 for the proposed 
constitutional amendment, 9 votes short of the two-thirds needed for 
congressional approval.
  Opponents of this proposed amendment claimed it was an infringement 
on the free speech clause of the first amendment. However, the first 
amendment has never been construed as protecting any and all means of 
expressive 
[[Page S4280]] conduct. Just as we are not allowed to falsely shout 
``fire'' in a crowded theater or obscenities on a street corner as a 
means of expression, I firmly believe that physically desecrating the 
American flag is highly offensive conduct and should not be allowed.
  The opponents of our proposal to protect the American flag have 
misinterpreted its application to the right of free speech. Former 
Chief Justice Warren, Justices Black and Fortas are known for their 
tenacious defense of first amendment principles. Yet, they all 
unequivocally stated that the first amendment did not protect the 
physical desecration of the American flag. In Street versus New York, 
Chief Justice Warren stated, ``I believe that the States and the 
Federal Government do have the power to protect the flag from acts of 
desecration and disgrace.''
  In this same case, Justice Black, who described himself as a first 
amendment ``absolutist'' stated, ``It passes my belief that anything in 
the Constitution bars a State from making the deliberate burning of the 
American flag an offense.''
  Mr. President, the American people treasure the free speech 
protections afforded under the first amendment and are very tolerant of 
differing opinions and expressions. Yet, there are certain acts of 
public behavior which are so offensive that they fall outside the 
protection of the first amendment. I firmly believe that flag burning 
falls in this category and should not be protected as a form of speech. 
The American people should be allowed to prohibit this objectionable 
and offensive conduct.
  It is our intention with this proposed constitutional amendment to 
establish a national policy to protect the American flag from 
contemptuous desecration. The American people look upon the flag as our 
most recognizable and revered symbol of democracy which has endured 
throughout our history.
  Mr. President, I urge my colleagues to join the sponsors and 
cosponsors of this proposed constitutional amendment to protect our 
most cherished symbol of democracy.
  Mr. GRASSLEY. Mr. President, I am pleased to join the chairman of the 
Senate Judiciary Committee, Senator Hatch, and my other distinguished 
colleagues in cosponsoring this resolution to amend the Constitution of 
the United States to grant Congress and the States the power to 
prohibit the physical desecration of the flag of the United States.
  Let me state from the outset, as I have stated before, this amendment 
will merely restore the power to Congress and the States to prohibit 
flag desecration--a power that we believe they have always had.
  Unfortunately, the Supreme Court incorrectly interpreted the 
Constitution's first amendment. The Court failed to discern the 
difference between protected speech, and an act--a type of hate crime 
of physical desecration of the flag.
  Therefore, our amendment does not tamper or tinker with the 
Constitution's Bill of Rights that protects speech.
  But, Mr. President, for argument's sake, assume this amendment does 
tamper with the speech clause.
  Let us ask ourselves a question. If we had to choose, should we amend 
the speech clause to: protect the American flag from acts of 
desecration; or protect our reelection to office by restricting the 
right of voters to hear words of opposition and opponents to speak 
against us--the incumbents?
  I regret, Mr. President, that too many Senators have sided with 
incumbent protection instead of flag protection.
  Remember, the Senate in 1990 fell 9 votes short of the 67 needed to 
pass a flag protection amendment to the Constitution because, by and 
large, it was argued that there is something very special, and 
untouchable about the speech clause.
  Mr. President, you may be astonished to learn that 28 of the 42 
Senators who voted against amending the speech clause to protect the 
American flag, had either sponsored, cosponsored, or voted to 
facilitate the passage of a constitutional amendment pegged the 
``incumbent protection bill.''
  This speech clause amendment was aimed at overturning the Supreme 
Court's Buckley versus Valeo decision. The Court said the first 
amendment speech clause is violated by restrictions on money used on 
political communication during campaigns.
  So while these Senators supported incumbent protection, they strongly 
opposed flag protection.
  Had only 9 of these 28 Senators had their priorities straight, the 
Senate would have passed the flag protection amendment 5 years ago.
  And let us keep in mind, during the 200 years following 1789, over 
10,000 constitutional amendments were introduced to the various 
Congresses.
  In fact, in 1990, 525 out of 535 U.S. Representatives and Senators 
had sponsored or cosponsored amendments to the Constitution for 
everything under the Sun--from ERA to D.C. statehood.
  So, the fact is, a vast majority of Congressmen and Senators do 
support amending the Constitution.
  And more to the point at hand, many of those 28 Senators--who were 
happy to amend the speech clause to protect their incumbency, but 
joined in killing an amendment to protect the American flag--are still 
serving in the 104th Congress.
  Mr. President, in fact, enough are still serving, that if they would 
change their priorities and their votes, this time our efforts to pass 
an amendment to protect the American flag will succeed.


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