[Congressional Record Volume 141, Number 147 (Wednesday, September 20, 1995)]
[Senate]
[Pages S13972-S13977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. FORD:
  S. 1262. A bill to provide for the establishment of certain 
limitations on advertisements relating to, and the sale of, tobacco 
products, and to provide for the increased enforcement of laws relating 
to underage tobacco use, and for other purposes; to the Committee on 
Commerce, Science, and Transportation.


                THE TOBACCO PRODUCTS CONTROL ACT OF 1995

  Mr. FORD. Madam President, I want to talk just a bit about personal 
freedoms. That notion is so deeply embedded in how Americans define 
themselves that we fought wars to defend it, marched down every Main 
Street in America to guard it, and turned politicians out at the polls 
to protect it.
  That dedication to personal freedom was at the very core of how our 
Founding Fathers defined a nation, and it has endured the test of time.
  Thomas Jefferson said that the ultimate powers of society belong to 
the people themselves. And, when Government is concerned that people 
might not be knowledgeable enough to exercise their control in a 
healthy direction, he wrote, ``The remedy is not to take it from them, 
but to inform.''
  He understood that Government has a mission to inform, but not to 
dictate, because when Government passes over that line of guidance to 
coercion, every American's guarantee of personal freedom is irrevocably 
damaged.
  I want to say this in the most forceful way possible, Madam 
President, that no one--no one--supports teen smoking. I am introducing 
legislation today directed at reducing the number of teenaged smokers 
in this country. But make no mistake, this legislation is equally 
driven by the need to prevent Government from regulating the legal 
choice of adults--of adults--in this country. And it does so by keeping 
the FDA out of the business of regulating tobacco.
  It is no secret, Madam President, that the FDA would like to ban 
tobacco under the guise of regulating teen tobacco use. And that is why 
when many people in my State hear the phrase ``Big Brother,'' they see 
the face of the FDA's David Kessler.
  The other day I heard a radio interview of some stock car racing 
fans. They had some pretty harsh words for Washington and for the 
proposed regulations that could have a devastating effect on the sport 
that they enjoy so much. They used words like ``misguided,'' and 
phrases like ``Big Brother intruding.''
  You see, Madam President, they could not understand how the 
Government could prevent them from buying a T-shirt or a cap with their 
favorite race driver and sponsor on it. Plenty of those fans are 
parents who have no desire to see their children smoking cigarettes and 
who support commonsense efforts to reduce teen smoking. But 

[[Page S 13973]]
something is clearly wrong when a regulation aimed at young people 
jeopardizes a sport where fewer than 3 percent in attendance are under 
the age of 18.
  We are not just talking about sports fans or patrons of major art 
shows and performances. We are talking about the truck driver who 
chooses to wear a Skoal cap. We are talking about adults, whether they 
work on Wall Street, under the hood of a car, at the bank, or checking 
groceries, being able to get a pack of cigarettes at a local bar's 
vending machine, a place where no minor has any business being in the 
first place.
  I am introducing this legislation today because I am fiercely opposed 
to Government interference into the legal decisions of adults in this 
country. I believe this is an issue we could have solved and still can 
without FDA intervention by working with industry and the 
administration. And in fact, many of the larger companies had already 
made substantial efforts in that direction. But I believe nothing less 
than complete prohibition is good enough for the regulators over at the 
FDA and the antitobacco zealots.
  In fact, I am so concerned about the FDA's intentions to limit 
adults' rights with regard to tobacco that I believe some legislative 
solution is imperative to prevent further intrusion into the private 
decisions of adults in this country. That is why my legislation in no 
uncertain terms removes any FDA involvement in the regulation of 
tobacco.
  But as I said on the day those regulations were announced, no one is 
here to protect peddling tobacco to minors. No one. And I am here today 
to follow up with serious, enforceable measures on advertising and 
access to stop underaged tobacco use.
  You also find in this legislation retail and marketing restrictions 
which we incorporate into substance abuse and Mental Health Services 
Administration rules and State laws already on the books.
  Under my legislation, we ban outdoor advertising of cigarettes and 
smokeless tobacco products within 500 feet of schools. We ban 
advertising of cigarettes and smokeless tobacco products in 
publications with any significant youth subscriptionship. We ban paid 
tobacco advertisements or props in movies. We ban cigarettes or 
smokeless tobacco advertising in videos, video game machines or family 
amusement centers.
  We require States to restrict vending machine sales of cigarettes or 
smokeless tobacco products to supervised locations--bars, private 
clubs, or places of employment like factories and warehouses. And we 
require States to limit free sampling of cigarettes and smokeless 
tobacco products and use of coupons to locations where youth access is 
denied and where proof-of-age requirements have been met.
  Instead of creating a whole new bureaucracy and turning jurisdiction 
over to the FDA, this legislation maintains the enforcement scheme of 
current SAMHSA law, extending it to tobacco sales and marketing 
restrictions and doubling--I underscore doubling--applicable penalties.
  These are serious, enforceable measures to combat teenage smoking, 
but they do not interfere with the legal, private decisions of adults 
nor do they trample on freedom of speech that the first amendment 
protects. The same cannot be said for the FDA regulations, which have 
already sent advertising and tobacco industry lawyers scrambling to the 
courts setting up lengthy legal challenges where the fight will go on 
for years and years and years.
  I have been told by those familiar with constitutional law that 
recent appellate court decisions and legal reviews have supported 
restrictions on the location of advertising but not on the content of 
the advertising. My bill responds to legal precedent, where FDA 
regulators have tried to circumvent all legal precedent, attempting to 
control an advertisement's content affecting not just a teenage 
publication, but a truck driver's baseball cap or a banker's financial 
magazine.
  Nor does my legislation put an illegal tax on the industry forcing 
them to use millions and millions of their own dollars to tell the 
public not to use their product. Can you imagine that? They are going 
to ask the industry to put up millions to say, ``Stop buying our 
product.'' Any other industry would go berserk. There is absolutely no 
other industry in this country that has been ordered--ordered, Madam 
President--to pay millions to put themselves out of business. Yet the 
FDA regulations attempt to raise taxes without any act of Congress.
  We can address the issues of teen smoking today without new taxes or 
constitutionally suspect restrictions on advertising rather than 
waiting years and years and years for the courts to finally settle the 
matter. When it comes right down to it, whether a teenager gets a pack 
of cigarettes or not in large part depends on whether an individual 
store clerk decides to sell it to them. It is already illegal in every 
State in the this country for that clerk to do so.
  But because too many store clerks do not feel pressured to enforce 
this law, we clearly need to change the current environment and leave 
no doubt in anyone's mind that it is in their best interest not to sell 
that pack of cigarettes to a minor. We do that through much tougher 
penalties and by ensuring that States have the enforcement resources 
they need to back up these laws.
  My legislation also works to reduce the chances that a teenager will 
ever walk into that store looking to buy a pack of cigarettes in the 
first place. I think that is what all of us want, from the 
administration to my tobacco farmers to the American public. The 
President is clearly committed to making serious inroads on the issue 
of teenage smoking. And in his press conference before the August 
recess he stated his backing of the self-supporting tobacco program and 
of adults' rights to make their own decision with regard to smoking. 
Unfortunately, overzealous regulators under the direction of David 
Kessler have done the President and the country a disservice by going 
way too far beyond simply protecting our young people, and, instead, 
their regulations infringe on numerous constitutional rights,
 invade the privacy of average adult Americans, and take the first step 
on a short road to prohibition.

  These overzealous regulators include a clause that essentially gives 
the FDA total control over tobacco's fate if there is not a 50 percent 
reduction in teenage tobacco use from 1993 levels--not 1995, but they 
go back to 1993--within 7 years. In fact, the percentage of teenage 
tobacco use is already well below the level it was 15 to 20 years ago. 
While we are willing to discuss additional, reasonable steps, these FDA 
regulations are nothing more than a guarantee that they are going to be 
coming back and attempt to expand their jurisdiction even further.
  I took the President at his word when he said that he prefers a 
legislative solution. In this legislation, we have taken one of the 
toughest State laws on the books regarding advertising, and one of the 
toughest State laws on the books regarding vending machine sales and 
samples as the basis for a serious and enforceable national policy on 
teenage smoking.
  The antismoking advocates talk forcefully about the numbers of 
teenagers who begin smoking every day. In citing those figures these 
advocates would be nothing short of negligent if they reject my 
legislation and allow this issue to be delayed indefinitely by a court 
fight. They will clearly be choosing a delay over compromise, self-
promotion over certain progress.
  There is no doubt that this legislation is about compromise. But make 
no mistake, it does not dodge the responsibility of ending teen tobacco 
use. I think this legislation represents a serious effort at meeting 
the President's goals on teenage smoking sooner, rather than later. 
Equally important, by leaving the FDA out of this process, my 
legislation will not set a course for tobacco that leads to 
prohibition.
  Madam President, I believe this proposal establishes a framework 
which, taken in its entirety, is as tough as the toughest State laws on 
teenage tobacco use in existence today.
  I challenge critics to show me a better approach--one equally strong 
and one equally reasonable. They are guided by common sense, both in 
the removal of the FDA from the process and in the expansion of laws 
already on the books. You will not find any new taxes or new 
bureaucracy, just strong, enforceable measures to end teenage 

[[Page S 13974]]
smoking and teenage tobacco use today.
  Madam President, I send a copy of my bill to the desk and ask that it 
be appropriately referred, and I ask unanimous consent that the bill be 
printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered. The bill 
will be received and appropriately referred.
                                S. 1262

       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 ``Tobacco Products Control Act 
     of 1995''.

     SEC. 2. AMENDMENT TO FEDERAL CIGARETTE LABELING AND 
                   ADVERTISING ACT.

       The Federal Cigarette Labeling and Advertising Act is 
     amended by inserting after section 6 (15 U.S.C. sec. 1335) 
     the following new section:


                 ``additional advertising restrictions

       ``Sec. 7A. (a)(1) It shall be unlawful to advertise 
     cigarettes on any outdoor billboard that is located within 
     500 feet of any public or private elementary or secondary 
     school.
       ``(2) Paragraph (1) shall not apply to any advertisement--
       ``(A) on any outdoor billboard that is located adjacent to 
     an interstate highway that is directed away from, and not 
     visible from, such elementary or secondary schools or school 
     grounds; or
       ``(B) that is erected or maintained at street level and 
     affixed to business establishments selling tobacco products 
     at retail.
       ``(b) It shall be unlawful to advertise cigarettes in a 
     newspaper, magazine, periodical or other publication if the 
     subscribers of such publication who are under the age of 18 
     years constitute more than 15 percent of the total readership 
     of such publication. The Federal Trade Commission shall 
     annually publish a list of the publications that are subject 
     to this subsection.
       ``(c) No payment shall be made by any cigarette 
     manufacturer or any agent thereof for the placement of any 
     cigarette, cigarette package, or cigarette advertisement as a 
     prop in any motion picture produced for viewing by the 
     general public.
       ``(d) No cigarette brand name or logo shall be placed in a 
     video or on a video game machine, and no brand name or logo 
     may be placed on or within the premises of family amusement 
     centers.
       ``(e) As used in this section--
       ``(1) the term `family amusement center' means an 
     enterprise offering amusement or entertainment to the public 
     through the use of one or more amusement rides or 
     attractions;
       ``(2) the term `amusement ride or attraction' means--
       ``(A) any mechanized device or combination of devices that 
     carry passengers along, around, or over a fixed or restricted 
     course for the purpose of giving its passengers amusement, 
     pleasure, thrills, or excitement; or
       ``(B) any building or structure around, over, or through 
     which individuals may walk, climb, slide, jump or move that 
     provides such individuals with amusement, pleasure, thrills, 
     or excitement;

     except that such term does not include coin-operated 
     amusement devices that carry no more than 2 individuals, 
     devices regulated by the Federal Aviation Administration, the 
     Federal Railroad Administration (or State railroad 
     administrations), or vessels under the jurisdiction of the 
     Coast Guard (or State division of the water patrol), tractor 
     pulls, auto or motorcycle events, horse shows, rodeos, or 
     other animal shows, games and concessions, nonmechanical 
     playground equipment, or any other devices or structures 
     designated by the Secretary of Health and Human Services; and
       ``(3) the term `video game' means any electronic amusement 
     device that utilizes a computer, microprocessor, or similar 
     electronic circuitry and its own cathode ray tube, or is 
     designed to be used with a television set or a monitor, that 
     interacts with the user of the device.''.

     SEC. 3. AMENDMENT TO COMPREHENSIVE SMOKELESS TOBACCO HEALTH 
                   EDUCATION ACT OF 1986.

       The Comprehensive Smokeless Tobacco Health Education Act of 
     1986 is amended by inserting after section 3 (15 U.S.C. 4402 
     et seq.) the following new section:


                       ``advertising restrictions

       ``Sec. 3A. (a) Billboards.--
       ``(1) In general.--It shall be unlawful to advertise a 
     smokeless tobacco product on any outdoor billboard that is 
     located within 500 feet of any public or private elementary 
     or secondary school.
       ``(2) Exception.--Paragraph (1) shall not apply to any 
     advertisement--
       ``(A) on any outdoor billboard that is located adjacent to 
     an interstate highway that is directed away from, and not 
     visible from, such elementary or secondary schools or school 
     grounds; and
       ``(B) that is erected or maintained at street level and 
     affixed to business establishments selling tobacco products 
     at retail.
       ``(b) Periodicals.--It shall be unlawful to advertise any 
     smokeless tobacco product in a newspaper, magazine, 
     periodical or other publication if the subscribers of such 
     publication who are under the age of 18 years constitute more 
     than 15 percent of the total readership of such publication. 
     The Federal Trade Commission shall annually publish a list of 
     the publications that are subject to this subsection.
       ``(c) Motion Pictures.--No payment shall be made by any 
     smokeless tobacco manufacturer or any agent thereof for the 
     placement of any smokeless tobacco product, smokeless tobacco 
     package, or smokeless tobacco advertisement as a prop in any 
     motion picture produced for viewing by the general public.
       ``(d) Video Games.--No smokeless tobacco product brand name 
     or logo shall be placed in a video or on a video game 
     machine, and no brand name or logo may be placed on or within 
     the premises of a family amusement center.
       ``(e) Definitions.--As used in this section--
       ``(1) the term `family amusement center' means an 
     enterprise offering amusement or entertainment to the public 
     through the use of one or more amusement rides or 
     attractions;
       ``(2) the term `amusement ride or attraction' means--
       ``(A) any mechanized device or combination of devices that 
     carry passengers along, around, or over a fixed or restricted 
     course for the purpose of giving its passengers amusement, 
     pleasure, thrills, or excitement; or
       ``(B) any building or structure around, over, or through 
     which individuals may walk, climb, slide, jump or move that 
     provides such individuals with amusement, pleasure, thrills, 
     or excitement;

     except that such term does not include coin-operated 
     amusement devices that carry no more than 2 individuals, 
     devices regulated by the Federal Aviation Administration, the 
     Federal Railroad Administration (or State railroad 
     administrations), or vessels under the jurisdiction of the 
     Coast Guard (or State division of the water patrol), tractor 
     pulls, auto or motorcycle events, horse shows, rodeos, or 
     other animal shows, games and concessions, nonmechanical 
     playground equipment, or any other devices or structures 
     designated by the Secretary of Health and Human Services; and
       ``(3) the term `video game' means any electronic amusement 
     device that utilizes a computer, microprocessor, or similar 
     electronic circuitry and its own cathode ray tube, or is 
     designed to be used with a television set or a monitor, that 
     interacts with the user of the device.''.

     SEC. 4. AMENDMENT TO PUBLIC HEALTH SERVICE ACT.

       Section 1926 of the Public Health Service Act (42 U.S.C. 
     sec. 300x-26) is amended--
       (1) in subsection (a)(1), to read as follows:
       ``(1) In general.--Subject to paragraph (2), for fiscal 
     year 1997 and subsequent fiscal years, the Secretary may make 
     a grant under section 1921 only if the State involved has in 
     effect a law providing that--
       ``(A) it is unlawful for any manufacturer, retailer, or 
     distributor of cigarettes or smokeless tobacco products to 
     sell or distribute any such product to any individual under 
     the age of 18;
       ``(B) no person, firm, partnership, company, or corporation 
     shall operate a vending machine which dispenses cigarettes or 
     smokeless tobacco products unless such vending machine is in 
     a location that is in plain view and under the direct 
     supervision and control of the individual in charge of the 
     location or his or her designated agent or employee;
       ``(C) the restrictions described in subparagraph (B) shall 
     not apply in the case of a vending machine that is located--
       ``(i) at a private club;
       ``(ii) at a bar or bar area of a food service 
     establishment;
       ``(iii) at a factory, warehouse, tobacco business, or any 
     other place of employment which has an insignificant portion 
     of its regular workforce comprised of individuals under the 
     age of 18 years and only if such machines are located in an 
     area that is not accessible to the general public; or
       ``(iv) in such other location or made available in another 
     manner that is expressly permitted under applicable State 
     law; and
       ``(D) it is unlawful for any person engaged in the selling 
     or distribution of cigarettes or smokeless tobacco products 
     for commercial purposes to distribute without charge any 
     cigarettes or smokeless tobacco products, or to distribute 
     coupons which are redeemable for cigarettes or smokeless 
     tobacco products, except that this subparagraph shall not 
     apply in the case of distribution--
       ``(i) through coupons contained in publications for which 
     advertising is not restricted under section 7A of the Federal 
     Cigarette Labeling and Advertising Act, coupons obtained 
     through the purchase of cigarettes or smokeless tobacco 
     products, or coupons sent through the mail;
       ``(ii) where individuals can demonstrate, through a 
     photographic identification card, that the individual is at 
     least 18 years of age;
       ``(iii) in locations that can be separately segregated to 
     deny access to individuals under the age of 18; or
       ``(iv) through such other manners or at other locations 
     that are expressly permitted under applicable State law.'';
       (2) in subsection (a)(2)--
       (A) by striking ``1993'' and inserting ``1997'';
       (B) by striking ``1994'' and inserting ``1998''; and
       (C) by striking ``1995'' and inserting ``1999'';
       (3) in subsection (c)--
       (A) in paragraph (1), by striking ``10 percent'' and 
     inserting ``20 percent'';
       (B) in paragraph (2), by striking ``20 percent'' and 
     inserting ``40 percent'';

[[Page S 13975]]

       (C) in paragraph (3), by striking ``30 percent'' and 
     inserting ``60 percent''; and
       (D) in paragraph (4), by striking ``40 percent'' and 
     inserting ``80 percent'';
       (4) in subsection (d)--
       (A) in paragraph (1), by striking ``1995'' and inserting 
     ``1999''; and
       (B) in paragraph (1), by striking ``1994'' and inserting 
     ``1998''; and
       (5) by adding at the end thereof the following new 
     subsections:
       ``(e) Enforcement.--Any amounts made available to a State 
     through a grant under section 1921 may be used to enforce the 
     laws described in subsection (a).
       ``(f) Definitions.--As used in subsection (a)(1), the term 
     `private club' means an organization with no more than an 
     insignificant portion of its membership comprised of 
     individuals under the age of 18 years that regularly receives 
     dues or payments from its members for the use of space, 
     facilities and services.''.

     SEC. 5. AMENDMENT TO FEDERAL FOOD, DRUG, AND COSMETIC ACT.

       Chapter IX of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 391 et seq.) is amended by adding at the end thereof 
     the following new section:

     ``SEC. 906. PROHIBITION ON REGULATION OF TOBACCO PRODUCTS.

       ``Nothing in this Act or any other Act shall provide the 
     Food and Drug Administration with any authority to regulate 
     in any manner tobacco or tobacco products.''.
                                 ______

      By Mr. CONRAD (for himself, Mr. Pressler, Mr. Thurmond, and Mr. 
        Inouye):
  S. 1263. A bill to direct the Secretary of Health and Human Services 
to revise existing regulations concerning the conditions of payment 
under part B of the Medicare Program relating to anesthesia services 
furnished by certified registered nurse anesthetists, and for other 
purposes, to the Committee on Finance.


              the medicare anesthesia services reform act

 Mr. CONRAD. Mr. President, today I, along with Senators 
Pressler, Thurmond, and Inouye, introduce the Medicare Anesthesia 
Services Reform Act.
  Whether the issue is Medicare reform or overall health care reform, 
our Nation needs to identify and develop efficient, cost-effective 
methods of delivering health care. But as we seek to cut health care 
costs, we must be careful to protect the quality of the health care 
that patients receive. One way to both provide quality care and better 
utilize our Nation's health care resources is to more appropriately use 
the services of Certified Registered Nurse Anesthetists--CRNA's.
  The Medicare Anesthesia Services Reform Act addresses two important 
issues affecting the regulation of anesthesia practice as it affects 
CRNA's. The first defers to State laws in determining whether or not 
nurse anesthetists must be supervised by a physician. And the second 
provision provides parity of payment when two anesthesia providers are 
involved in a single Medicare case. The Act helps CRNA's maximize the 
use of their skills to provide quality health care to patients.
  Nurse anesthetists administer more than 65 percent of the 26 million 
anesthetics given to patients each year in the United States. They are 
the sole anesthesia providers in 85 percent of rural hospitals, 
including all but a handful of counties in North Dakota. CRNA's play an 
integral role in providing rural medical facilities with obstetrical, 
surgical, and trauma stabilization capabilities. CRNA's perform the 
same anesthesia delivery functions as anesthesiologists and work in 
every setting in which anesthesia is delivered--traditional hospital 
suites, obstetrical delivery rooms, dentists offices, HMO's ambulatory 
surgical centers, Veterans Administration facilities, and others.
  The first provision in the bill requires the Health Care Financing 
Administration to defer to State law when determining whether to 
condition Medicare reimbursement to CRNA's on physician supervision. 
Medicare's regulations require physician supervision of CRNA's as a 
condition for hospitals or ambulatory surgical centers to receive 
Medicare reimbursement, despite many State laws that allow nurse 
anesthetists to practice without such supervision. In fact, most States 
do not require physician supervision or direction of nurse anesthetists 
in the States' nurse practice acts, board of nursing rules and 
regulations, medical practice acts, or their generic equivalents.
  The Federal supervision requirement creates several problems for 
CRNA's. First, some surgeons have been dissuaded from working with 
CRNA's, in the face of arguments that the physicians may be subjecting 
themselves to liability for engaging in supervision. But the truth is, 
the attending physician is no more legally liable for the CRNA's 
actions than he or she is for the acts of an anesthesiologist. Second, 
the Federal restriction is anti-competitive, acting as a disincentive 
for CRNA's to be utilized. Finally, the restriction creates an 
inaccurate perception among some surgeons that they have an obligation 
to direct or control
 the substantive course of the anesthetic process, even though there is 
no such obligation.

  By eliminating this prescriptive Federal regulation, we can better 
maximize the use of nurse anesthetists and eliminate the confusion 
surrounding CRNA supervision. At a time when the Federal Government is 
deferring to State judgment on a whole host of issues, it seems 
completely consistent to let States decide how best to use nurse 
anesthetists, particularly in light of CRNA's long track record of 
success.
  CRNA's have been around for a century. They have been the principal 
anesthesia providers in combat areas in every war the United States has 
been engaged in since World War I. CRNA's have received medals and 
accolades for their dedication, commitment, and competence. And recent 
studies indicate that better utilization of CRNA's could save the 
Federal Government as much as $1 billion per year by the year 2010. 
Clearly, it make sense for the Federal Government to defer to States on 
an issue that could very well save significant Federal expenses over 
time.
  The second proposal included in the Medicare Anesthesia Services 
Reform Act applies to fairness in reimbursement to CRNA's and 
anesthesiologists. Under Medicare's current regulations, if an 
anesthesiologist and a CRNA work together on one case and Medicare 
later decides that the use of two anesthesia providers was not 
medically necessary, neither the hospital nor the CRNA gets paid. 
Consequently, there is an economic disincentive for hospitals to employ 
nurse anesthetists, even though they provide such cost effective 
services.
  Obviously, Medicare should not pay for services that are not 
medically necessary. And our bill would not require Medicare to do so. 
Rather, it simply requires that anesthesiologists and CRNA's or the 
hospitals that employ them split the fee equally. If someone works on a 
Medicare case, he or she should get paid for it.
  The problem CRNA's confront is the poor definition of what 
constitutes ``medical necessity.'' Medical necessity is interpreted on 
a case-by-case basis, making it easy for Medicare carriers to deny a 
claim for payment to a CRNA who cannot prove medical necessity. If a 
claim is denied, then only the anesthesiologist gets paid, even though 
both the anesthesiologist and the CRNA did the work. That is just not 
fair.
  Last year, I introduced legislation that would have required Medicare 
to reimburse CRNA's and anesthesiologists based on their contribution 
to the case. Under that proposal, if a CRNA did more of the work, he or 
she might get 60 or 70 percent of the payment compared with 30 or 40 
percent for the anesthesiologist. If the anesthesiologist did more of 
the work, he or she would receive a greater percentage of the payment.
  Some viewed the provision I proposed last year as too difficult to 
implement. In addition, during health care reform, I worked with the 
American Association of Nurse Anesthetists and the American Society of 
Anesthesiologists to develop a compromise that included the 50-50 split 
that has been incorporated into this bill. Given the negotiations that 
occurred last year, I believe it is best to include the 50-50 split 
provision, rather than the provision that I initially proposed.
  Mr. President, this is sensible legislation. It is fair to both 
CRNA's and anesthesiologists, alike. And it eliminates some significant 
problems that are creating difficulty for nurse anesthetists and the 
hospitals that employ them.
  Our proposal replaces outdated Medicare regulations and lets 
hospitals make their individual anesthesia staffing decisions based 
upon their own needs. It also gives more flexibility to 

[[Page S 13976]]
the States. I hope my colleagues will support it.
                                 ______

      By Mr. DASCHLE:
  S. 1264. A bill to provide for certain benefits of the Missouri River 
basin Pick-Sloan project to the Crow Creek Sioux Tribe, and for other 
purposes; to the Committee on Indian Affairs.


THE CROW CREEK SIOUX TRIBE INFRASTRUCTURE DEVELOPMENT TRUST FUND ACT OF 
                                  1995

  Mr. DASCHLE. Mr. President, today I introduce the Crow Creek Sioux 
Tribe Infrastructure Development Trust Fund Act of 1995. This bill will 
provide for the development of certain tribal infrastructure projects 
funded by a trust fund set up for the Crow Creek Tribe within the 
Department of the Treasury. The trust fund would be capitalized from a 
percentage of hydropower revenues and would be capped at $27.5 million. 
The tribe would then receive the interest from the fund to be used 
according to a development plan prepared in conjunction with the Bureau 
of Indian Affairs and the Indian Health Service.
  The Flood Control Act of 1944 created five massive earthen dams on 
the Missouri River. This public works project known as the Pick-Sloan 
Plan provides flood control, irrigation, and hydropower. Four of the 
Pick-Sloan dams are located in South Dakota.
  The impact of the Pick-Sloan plan on the Crow Creek Sioux Tribe has 
been devastating. The Big Bend and Fort Randall dams created losses to 
the Crow Creek Tribe for which they have not been adequately 
compensated. Over 15,000 acres of the tribe's most fertile and 
productive land, the Missouri River wooded bottom lands, were inundated 
as a result of the Fort Randall and Big Bend components of the Pick-
Sloan project.
  By and through the Big Bend Act of 1962, Congress directed the U.S. 
Army Corps of Engineers and the Department of the Interior to take 
certain actions to alleviate the problems caused by the dislocation of 
communities and inundation of tribal resources. These directives were 
either carried out inadequately or not carried out at all.
  Congress established precedent for this legislation in 1992 by the 
passage of the Three Affiliated Tribes and Standing Rock Sioux Tribe 
Equitable Compensation Act which I cosponsored. At that time, Congress 
determined that the U.S. Army Corps of Engineers failed to provide 
adequate compensation to the tribes when their land was acquired for 
the Pick-Sloan projects. There is little controversy on finding that 
the tribes bore an inordinate share of the cost of implementing the 
Pick-Sloan program. The Secretary of the Interior established the Joint 
Tribal Advisory Committee to resolve the inequities and find ways to 
finance the compensation of tribal claims. As a result, the Three 
Affiliated Tribes and Standing Rock Sioux Tribe Equitable Compensation 
Act set up a recovery fund financed entirely from a percentage of Pick-
Sloan power revenues.
  The Crow Creek Sioux Tribe Infrastructure Development Fund Act of 
1995 will enable the Crow Creek Tribe to address and improve their 
infrastructure and will provide the needed resources for further 
economic development of the Crow Creek Indian Reservation.
  This legislation has broad support in South Dakota. Gov. Bill Janklow 
strongly endorses this proposal to develop the infrastructure at the 
Crow Creek Indian Reservation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record and a letter from Gov. Bill Janklow.
  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 ``Crow Creek Sioux Tribe 
     Infrastructure Development Trust Fund Act of 1995''.

     SEC. 2. FINDINGS.

       (a) Findings.--The Congress finds that--
       (1) the Congress approved the Missouri River basin Pick-
     Sloan project by passing the Act of December 22, 1944, 
     commonly known as the ``Flood Control Act of 1944'' (58 Stat. 
     887, chapter 665; 33 U.S.C. 701-1 et seq.)--
       (A) to promote the general economic development of the 
     United States;
       (B) to provide for irrigation above Sioux City, Iowa;
       (C) to protect urban and rural areas from devastating 
     floods of the Missouri River; and
       (D) for other purposes;
       (2) the Fort Randall and Big Bend projects are major 
     components of the Pick-Sloan project, and contribute to the 
     national economy by generating a substantial amount of 
     hydropower and impounding a substantial quantity of water;
       (3) the Fort Randall and Big Bend projects overlie the 
     western boundary of the Crow Creek Indian Reservation, having 
     inundated the fertile, wooded bottom lands of the Tribe along 
     the Missouri River that constituted the most productive 
     agricultural and pastoral lands of the Tribe and the homeland 
     of the members of the Tribe;
       (4) Public Law 85-916 (72 Stat. 1766 et seq.) authorized 
     the acquisition of 9,418 acres of Indian land on the Crow 
     Creek Indian Reservation for the Fort Randall project and 
     Public Law 87-735 (76 Stat. 704 et seq.) authorized the 
     acquisition of 6,179 acres of Indian land on Crow Creek for 
     the Big Bend project;
       (5) Public Law 87-735 (76 Stat. 704 et seq.) provided for 
     the mitigation of the effects of the Fort Randall and Big 
     Bend projects on the Crow Creek Indian Reservation, by 
     directing the Secretary of the Army to--
       (A) replace, relocate, or reconstruct--
       (i) any existing essential governmental and agency 
     facilities on the reservation, including schools, hospitals, 
     offices of the Public Health Service and the Bureau of Indian 
     Affairs, service buildings, and employee quarters; and
       (ii) roads, bridges, and incidental matters or facilities 
     in connection with such facilities;
       (B) provide for a townsite adequate for 50 homes, including 
     streets and utilities (including water, sewage, and 
     electricity), taking into account the reasonable future 
     growth of the townsite; and
       (C) provide for a community center containing space and 
     facilities for community gatherings, tribal offices, tribal 
     council chamber, offices of the Bureau of Indian Affairs, 
     offices and quarters of the Public Health Service, and a 
     combination gymnasium and auditorium;
       (6) the Secretary of the Army and the Secretary of the 
     Interior have failed to meet the requirements under Public 
     Law 87-735 (76 Stat. 704 et seq.) with respect to the 
     mitigation of the effects of the Fort Randall and Big Bend 
     projects on the Crow Creek Indian Reservation;
       (7) although the national economy has benefited from the 
     Fort Randall and Big Bend projects, the economy on the Crow 
     Creek Indian Reservation remains underdeveloped, in part as a 
     consequence of the failure of the Federal Government to 
     fulfill the obligations of the Federal Government under the 
     laws referred to in paragraph (4);
       (8) the economic and social development and cultural 
     preservation of the Crow Creek Sioux Tribe will be enhanced 
     by increased tribal participation in the benefits of the Fort 
     Randall and Big Bend components of the Pick-Sloan project; 
     and
       (9) the Crow Creek Sioux Tribe is entitled to additional 
     benefits of the Missouri River basin Pick-Sloan project, 
     including hydropower revenues and infrastructure development.

     SEC. 3. DEFINITIONS.

       For the purposes of this Act, unless the context implies 
     otherwise, the following definitions shall apply:
       (1) Fund.--The term ``Fund'' means the Crow Creek Sioux 
     Tribe Infrastructure Development Trust Fund established under 
     section 4(a).
       (2) Plan.--The term ``plan'' means the plan for 
     socioeconomic recovery and cultural preservation prepared 
     under section 5.
       (3) Programs.--The term ``Programs'' means the integrated 
     programs of the Eastern Division of the Missouri River basin 
     Pick-Sloan program, administered by the Western Area Power 
     Administration, as determined by the Secretary.
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (5) Tribe.--The term ``Tribe'' means the Crow Creek Sioux 
     Tribe.

     SEC. 4. ESTABLISHMENT OF CROW CREEK SIOUX TRIBE 
                   INFRASTRUCTURE DEVELOPMENT TRUST FUND.

       (a) Crow Creek Sioux Tribe Infrastructure Development Trust 
     Fund.--There is established in the Treasury of the United 
     States a fund to be known as the ``Crow Creek Sioux Tribe 
     Infrastructure Development Trust Fund''.
       (b) Funding.--Beginning with fiscal year 1997, and for each 
     fiscal year thereafter, until such time as the aggregate of 
     the amounts deposited in the Fund is equal to $27,500,000, 
     the Secretary of the Treasury shall deposit into the Fund an 
     amount equal to 25 percent of the receipts from the deposits 
     to the Treasury of the United States for the preceding fiscal 
     year from the Programs.
       (c) Investments.--The Secretary of the Treasury shall 
     invest the amounts deposited under subsection (b) only in 
     interest-bearing obligations of the United States or in 
     obligations guaranteed as to both principal and interest by 
     the United States.
       (d) Payment of Interest to Tribe.--
       (1) Establishment of account and transfer of interest.--The 
     Secretary of the Treasury shall, in accordance with this 
     subsection, transfer any interest that accrues on amounts 
     deposited under subsection (b) into a separate account 
     established by the Secretary of the Treasury in the Treasury 
     of the United States.
       (2) Payments.--
       (A) In general.--Beginning with the fiscal year immediately 
     following the fiscal year 

[[Page S 13977]]
     during which the aggregate of the amounts deposited in the Fund is 
     equal to the amount specified in subsection (b)(2), and for 
     each fiscal year thereafter, all amounts transferred under 
     paragraph (1) shall be available, without fiscal year 
     limitation, to the Secretary of the Interior for use in 
     accordance with subparagraph (C).
       (B) Withdrawal and transfer of funds.--For each fiscal year 
     specified in subparagraph (A), the Secretary of the Treasury 
     shall withdraw amounts from the account established under 
     such paragraph and transfer such amounts to the Secretary of 
     the Interior for use in accordance with subparagraph (C). The 
     Secretary of the Treasury may only withdraw funds from the 
     account for the purpose specified in this paragraph.
       (C) Payments to tribe.--The Secretary of the Interior shall 
     use the amounts transferred to the Secretary under 
     subparagraph (B) only for the purpose of making payments to 
     the Tribe.
       (D) Use of payments by tribe.--The Tribe shall use the 
     payments made under subparagraph (C) only for carrying out 
     projects and programs pursuant to the plan prepared under 
     section 5.
       (3) Prohibition on per capita payments.--No portion of any 
     payment made under this subsection may be distributed to any 
     member of the Tribe on a per capita basis.
       (e) Transfers and Withdrawals.--
       (1) Amounts deposited in the fund.--Except as provided in 
     subsection (d)(1), the Secretary of the Treasury may not 
     transfer or withdraw any amount deposited under subsection 
     (b).
       (2) Amounts transferred to account.--Except as provided in 
     subsection (d)(2), the Secretary of the Treasury may not 
     transfer or withdraw any amounts transferred to the account 
     established under subsection (d)(1).

     SEC. 5. PLAN FOR SOCIOECONOMIC RECOVERY AND CULTURAL 
                   PRESERVATION.

       (a) Plan.--
       (1) In general.--The Secretary of the Interior, acting 
     through the Bureau of Indian Affairs, in cooperation with the 
     Secretary of Health and Human Services, acting through the 
     Indian Health Service, and the Crow Creek Tribal Council, 
     shall prepare a plan for the use of payments made to the 
     Tribe under section 4(d)(2).
       (2) Requirements for plan components.--The plan shall, with 
     respect to each component of the plan--
       (A) identify the costs and benefits of that component; and
       (B) provide plans for that component.
       (3) Approval of crow creek tribal council.--The plan shall 
     be subject to the approval of the Crow Creek Tribal Council.
       (4) Submittal to congress.--Not later than 2 years after 
     the date of enactment of this Act, the Secretary shall submit 
     the plan to Congress.
       (b) Content of Plan.--The plan shall include the following 
     programs and components:
       (1) Educational facility.--The plan shall provide for an 
     educational facility to be located on the Crow Creek Indian 
     Reservation.
       (2) Comprehensive inpatient and outpatient health care 
     facility.--The plan shall provide for a comprehensive 
     inpatient and outpatient health care facility to provide 
     essential services that the Secretary, in consultation with 
     the individuals and entities referred to in subsection 
     (a)(1), determines to be--
       (A) needed; and
       (B) unavailable through existing facilities of the Indian 
     Health Service on the Crow Creek Indian Reservation at the 
     time of the determination.
       (3) Water system.--The plan shall provide for the 
     construction, operation, and maintenance of a municipal, 
     rural, and industrial water system for the Crow Creek Indian 
     Reservation.
       (4) Irrigation facilities.--The plan shall provide for 
     irrigation facilities for not less than 1,792 acres.
       (5) Recreational facilities.--The plan shall provide for 
     recreational facilities suitable for high-density recreation 
     at Lake Sharpe at Big Bend Dam in South Dakota.
       (6) Other projects and programs.--The plan shall provide 
     for such other projects and programs for the educational, 
     social welfare, economic development, and cultural 
     preservation of the Tribe as the Secretary, in consultation 
     with the individuals and entities referred to in subsection 
     (a)(1), considers to be appropriate.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such funds as may 
     be necessary to carry out this Act, including such funds as 
     may be necessary to cover the administrative expenses of the 
     Crow Creek Sioux Tribe Infrastructure Development Trust Fund 
     established under section 4.

     SEC. 7. EFFECT OF PAYMENTS TO TRIBE.

       (a) In General.--No payment made to the Tribe pursuant to 
     this Act shall result in the reduction or denial of any 
     service or program to which, pursuant Federal law--
       (1) the Tribe is otherwise entitled because of the status 
     of the Tribe as a federally recognized Indian tribe; or
       (2) any individual who is a member of the Tribe is entitled 
     because of the status of the individual as a member of the 
     Tribe.
       (b) Exemptions; Statutory Construction.--
       (1) Power rates.--No payment made pursuant to this Act 
     shall affect Missouri River basin Pick-Sloan power rates.
       (2) Statutory construction.--Nothing in this Act may be 
     construed as diminishing or affecting--
       (A) any right of the Tribe that is not otherwise addressed 
     in this Act; or
       (B) any treaty obligation of the United States.
                                                                    ____

                                            State of South Dakota,


                              Executive Office, State Capitol,

                                        Pierre, SD, June 22, 1995.
     Hon. Duane Big Eagle,
     Chairman of the Crow Creek Sioux Tribe,
     Fort Thompson, SD.
       Dear Chairman Big Eagle: Thank you for giving me a copy of 
     the proposed federal legislation that requires the federal 
     government to fulfill the commitments made to the Crow Creek 
     Sioux Tribe in the Big Bend Act of 1962.
       I wholeheartedly support this legislation and your efforts 
     to develop Fort Thompson with the infrastructure and 
     community facilities that the Crow Creek community should 
     have received long ago. The method for funding in the bill is 
     fair and I hope a majority of both houses of Congress and the 
     President will realize the importance of passing this bill 
     and signing it into law.
       In several different ways, all of the various groups of 
     people who live in South Dakota have not received the 
     benefits promised when the great dams were built in the 
     1950s. The persistence of the members of the Crow Creek Sioux 
     Tribe to right this wrong is worthy of high praise. 
     Congratulations on creating an excellent proposal.
       If there is anything I can do to help you, please let me 
     know.
           Sincerely,
                                               William J. Janklow.
     

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