[Congressional Record Volume 142, Number 104 (Tuesday, July 16, 1996)]
[Senate]
[Pages S7887-S7890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Lott, Mr. Heflin, Mr. Abraham, Mr. 
        Ashcroft, Mr. Burns, Mr. Craig, Mr. Faircloth, Mr. Grams, Mr. 
        Kempthorne, Mr. Mack, Mr. McConnell, Mr.

[[Page S7888]]

        Bennett, Mr. Bond, Mr. Brown, Mr. Grassley, Mr. Nickles, Mr. 
        Simpson, Mr. Stevens, Mr. Thurmond, Mr. Pressler, Mr. Shelby, 
        Mr. Cochran, Mr. Warner, and Mr. Thomas):
  S. 1954. A bill to establish a uniform and more efficient Federal 
process for protecting property owners' rights guaranteed by the fifth 
amendment; read the first time.


                    THE OMNIBUS PROPERTY RIGHTS ACT

  Mr. HATCH. Mr. President, I am pleased today to introduce a new 
version of the Omnibus Property Rights Act of 1996. This bill is a 
narrower version of the bill introduced as S. 605, on March 23, 1995.
  Americans everywhere are losing their fundamental right to property. 
They cannot build homes, farm land, clear ditches or cut firebreaks in 
property that clearly belongs to them. Often, this property has been in 
their family for years. The Omnibus Property Rights Act is the proper 
vehicle to vindicate property rights and limit arbitrary actions by 
Federal bureaucrats.
  The criticisms of S. 605, in my view, are vastly overblown. But, in a 
good faith effort to address concerns raised by critics of the original 
bill, I am introducing this revised version. This version will: First, 
narrow the definition of property to include only real property, 
including fixtures on land, such as crops, timber, and mining 
interests, and water rights; Second, increase the threshold amount that 
property or a portion of property need be diminished in value before 
compensation for a taking be sought from 33 to 50 percent; Third, 
expressly exempt civil rights laws from the bill's purview, including 
those protecting persons with disabilities; Fourth, remove the takings 
regulatory reform ``look back'' provision from the bill by striking all 
of section 404, this in an effort to address the fear that any and all 
agency review provisions are too burdensome; and Fifth, amend the 
owner's consent to enter land provision to allow for nonconsensual 
agency access to private land pursuant to criminal law enforcement and 
emergency access exceptions.
  In addressing the bill oponent's claims by making these significant 
changes, I would like to say once again that our critics' real problem 
is not with the overall bill, but with the U.S. Supreme Court. In 1992, 
the Supreme Court held in Lucas versus South Carolina Coastal Council 
that restrictions on property use based on ``background principles of 
the State's law of property and nuisance'' need not be compensated. 
Common law nuisance is either the use of property that harms or 
interferes with another's property or that injures public health, 
safety, or morals. This common law exemption for compensation has been 
codified literally in this bill as a ``nuisance exception.'' All we did 
in our bill was to codify the ``law of the land.'' The bill codifies 
and clarifies recent Supreme Court standards as to what constitutes a 
``taking'' of private property and ameliorates the arbitrary nature of 
court and administrative proceedings.
  What this bill does is to limit big government's ability to regulate 
and control private property without paying innocent or nonpolluting 
property holders compensation. Currently, the Federal Government and 
agency bureaucrats are able to shift the cost of public regulation to 
individual property owners.
  The Omnibus Property Rights Act helps to take away this arbitrary 
free ride. The bill helps secure and protect private property rights 
guaranteed by the takings clause of the fifth amendment of our 
Constitution, which the Supreme Court in Armstrong versus United States 
(1960) determined is ``to bar Government from forcing some people alone 
to bear public burdens, which in all fairness and justice, should be 
borne by public as a whole.''
  In adopting the Supreme Court's recent Lucas holding, the Omnibus 
Property Rights bill provides that only innocent property holders are 
to be compensated for government takings. Those that misuse their 
property to pollute or to harm public health and safety are not 
entitled to compensation under the bill's nuisance provision. Property 
owners remain subject to the same laws and regulations as everyone 
else. Only if government cannot demonstrate that their use of property 
amounts to a harm recognized as common law nuisance will a property 
holder be compensated under this bill. What could be fairer than this?
  What about those Federal statutes, named by opponents of the Omnibus 
bill, that might not fall under the nuisance exception? Will 
enforcement of those statutes, designed to protect the public, diminish 
the value of property and require compensation? The answer is no: 
property holders are subject to the same general laws and regulations 
as everyone else. Only where enforcement of regulatory schemes amounts 
to a taking under current law, and arbitrarily singles out property 
holders to their detriment by requiring them, through reduced property 
values, to fund programs that should be paid out of the public 
treasury, will property holders be compensated. Moreover, even in these 
limited circumstances, the Federal Government can still regulate by 
paying compensation when it takes property. Current law--even without 
this bill--recognizes that justice and fairness require the government 
to pay for the property it takes. Thus, contrary to the bill's critics 
and the administration, if the Omnibus Property Rights Act is enacted 
into law, the sky will not fall. In reality, the Federal bureaucracy 
has a poor record in protecting the right of the American public to use 
and own property. That is why we need a vehicle--such as this bill--to 
force the government by statute to heed the public's rights.
  Indeed, the omnibus bill includes provisions that require Federal 
agencies to account for the costs of taking property when formulating 
policy, and it provides for a more efficient administrative remedy for 
property owners who seek compensation. It also allows for alternative 
dispute resolution mechanisms to encourage quicker settlements of 
takings claims. For cases that go to Federal court under the bill, the 
bill codifies recent Supreme Court decisions and clarifies the law in 
regulatory takings cases. Because the bill provides for clearer, 
bright-line rules of liability, it will lead to lower costs overall, as 
both agencies and property owners become fully aware of the limits of 
the government's power to take property. Importantly, the codification 
of bright-line rules will ameliorate the ad hoc and arbitrary nature of 
takings jurisprudence.
  I ask my colleagues to support this bill and breathe life into the 
fifth amendment of the U.S. Constitution.
       By Mr. HATCH (for himself, Mr. Harkin, Mr. Faircloth, Mr. 
     Bennett, Mr. Inouye, Mr. Thurmond, Mr. Simon, Mr. Pressler 
     and Mr. Dewine):
  S. 1955. A bill to amend the Public Health Service Act to provide for 
the establishment of a National Center for Pain Research, and for other 
purposes; to the Committee on Labor and Human Resources.


    THE NATIONAL CENTER FOR PAIN RESEARCH ESTABLISHMENT ACT OF 1996

  Mr. HATCH. Mr. President, I rise today to introduce S. 1955, a bill 
to establish a National Center for Pain Research within the National 
Institutes of Health. This is legislation that I have developed working 
closely with Senators Harkin and Faircloth. S. 1955 is also cosponsored 
by Senators Bennett, Inouye, Thurmond, Simon, Pressler and DeWine.
  Pain is a condition that each of us experiences throughout our lives. 
Millions of individuals suffer from pain, sometimes chronic and often 
needlessly. Yet, there is insufficient knowledge about the basic 
mechanisms of pain, relatively few resources dedicated to the 
development and evaluation of pain treatment modalities, and inadequate 
transfer of new knowledge and information to health care professionals.
  To show the magnitude of the problem, I will cite several statistics. 
Studies show that four in five Americans will have low back pain at 
some point in their lives. Nearly one in six Americans suffers from 
some form of arthritis, a very painful condition. In fact, according to 
the American Chronic Pain Association, pain is a part of the daily 
lives of one in three Americans.
  These painful conditions are not only common, they are also 
expensive. A recent survey has shown that absences from work due to 
pain totaled 50 million days in 1995, accounting for billions of 
dollars in lost wages for sick days or medical and disability payments.

[[Page S7889]]

  Mr. President, with an appropriation of $12 billion a year, you would 
think that the NIH would be devoting a substantial amount of funding 
toward a medical condition which is so prevalent. In fact, I was 
shocked to learn that such is not the case. According to statistics 
provided to me by the agency, NIH is spending only $54 million per year 
on pain-related research, only one-half of one percent. And that number 
is down almost 10 percent from the previous year.
  To take one example, acute back pain, a serious condition which will 
affect about 80 percent of all Americans sometime in their lives, is 
alone responsible for a $40-billion-a-year drain on the U.S. economy. 
Yet, NIH reports that it currently funds only $2.5 million of research 
into this area.
  My study of this issue has led me to conclude there is another 
serious problem associated with our Government campaign against pain. 
Pain research is spread across many of the Institutes, yet there is 
little coordination of these research activities to make sure these 
resources are effectively used.

  Mr. President, this is not to say that NIH has neglected pain 
research. In fact, I want to make clear that NIH deserves high marks 
for its significant contributions in the field of pain research. NIH 
scientists have been integral in the cataloging of neurotransmitters 
and have been the key to improved understanding of the process of 
nociception. This basic science research has allowed for the 
development of several new drugs to treat pain.
  I want to take this opportunity to thank Dr. Harold Varmus, NIH 
Director, and Dr. Harold Slavkin, NIDR Director, for their continued 
support of a most impressive program within the National Institute of 
Dental Research. The NIDR's Intramural Pain Research Program, operated 
through the Neurobiology and Anesthesiology Branch [NAB] of NIDR, 
exemplifies the high quality of pain research that I hope can be 
multiplied with enactment of this bill.
  The NAB has trained almost 100 basic and clinical science pain 
researchers around the world, many of who have become deans of dental 
and medical schools, department chairs and successful grantees of many 
NIH Institutes. In fact, the American Pain Society has recently awarded 
two major research medals to two NAB investigators in recognition of 
their collaborative basic and clinical science research on neuropathic 
pain.
  The National Center for Pain Research Act of 1996 will allow us to 
build on the successful pain research activities currently underway at 
the NIH.
  This bill will improve integration of pain-related research within 
NIH, establish a national agenda for pain research, and expand the 
utilization of interdisciplinary pain research teams.
  Specifically, it will, first, establish a Center for Pain Research 
within NIH. The purpose of this Center is to improve the quality of 
life of individuals suffering from pain by fostering clinical and basic 
science research into the causes of and effective treatments for pain; 
second, authorize the Center to coordinate pain research throughout the 
Institutes at NIH, as well as fund priority pain-related research 
through its own research budget; third, create an advisory board that 
will be made up of experts in pain research and pain management from a 
wide variety of health care disciplines, including physicians who 
practice pain management, psychology, physical medicine and 
rehabilitative services, nursing, dentistry, and chiropractic health 
care professionals; and fourth, establish six regional pain research 
centers to facilitate and enhance pain-related research, training, 
education, and related activities to be carried out by the Center.

  In addition to increasing our knowledge about pain, it is important 
to disseminate information about advances made in the pain research. 
Through pioneering research supported by the NIH, we have already made 
great strides in increasing our knowledge of pain and in treating 
painful conditions.
  However, the treatment of patients suffering from painful conditions 
remains woefully inadequate. Too many of our health professionals lack 
specific training in pain management. With adequate pain control, much 
of the suffering from painful conditions can be prevented or greatly 
attenuated.
  Sadly, pain control is a significant problem for patients with 
cancer. A statement from the National Cancer Institute indicated that, 
``the under treatment of pain and other symptoms of cancer is a serious 
and neglected public health problem.'' With 1 million new cases of 
cancer diagnosed each year, this problem cannot be ignored.
  Additional studies have shown that pain associated with cancer is 
most frequently under treated in the elderly and children--two of our 
most vulnerable populations. The need for a national movement to help 
these individuals is illustrated by the fact that cancer pain can be 
virtually abolished in approximately 90 percent of patients by the 
intelligent use of drugs.
  This bill has widespread support from organizations representing the 
providers of pain management, pain researchers, and the people they 
serve. These organizations include: American Academy of Pain 
Management, American Academy of Pain Medicine, American Chiropractic 
Association, American Chronic Pain Association, American Pain Society, 
Arthritis Foundation, Back Pain Association of America, Endometriosis 
Association, Interstitial Cystitis Association, National Chronic Pain 
Outreach Association, National Committee on the Treatment of 
Intractable Pain, Pain Research Group of the University of Wisconsin, 
Reflex Sympathetic Dystrophy Syndrome Association of America, American 
Cancer Society, Sickle Cell Disease Association of America, and the 
Vulvar Pain Foundation.
  In closing, I would like to thank the chiropractic community for 
bringing this issue to the forefront of public attention. The 
chiropractic profession, through its ability to effectively treat many 
painful conditions--including low back pain, headaches and neck pain--
has been on the leading edge of pain management for years. They have 
joined their colleagues in the health professions in initiating and 
developing this important legislation and our bill recognizes the 
substantial role chiropractors play in the pain treatment community.

  I would also like to thank the contributions of the American Pain 
Society, which represents the interdisciplinary pain management 
research and care community. They also have actively participated in 
the development of this legislation.
  Mr. President, the creation of the Center for Pain Research will 
facilitate the discovery of new treatments for painful conditions 
afflicting almost all of our fellow Americans. This bill also makes 
certain that these discoveries reach the people who now suffer from 
needless pain as soon as possible.
  I urge my colleagues to support creation of a Center for Pain 
Research within the National Institutes of Health.
  Mr. President, I ask unanimous consent that the text of the bill be 
placed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1955

       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 ``National Center for Pain 
     Research Act of 1996''.

     SEC. 2. NATIONAL CENTER FOR PAIN RESEARCH.

       (a) Establishment.--Section 401(b)(2) of the Public Health 
     Service Act (42 U.S.C. 281(b)(2)) is amended by adding at the 
     end thereof the following new subparagraph:
       ``(F) The National Center for Pain Research.''.
       (b) Operation.--Part E of title IV (42 U.S.C. 287 et seq.) 
     is amended by adding at the end thereof the following new 
     subpart:

             ``Subpart 5--National Center for Pain Research

     ``SEC. 485E. ESTABLISHMENT AND PURPOSE OF THE CENTER.

       ``(a) Establishment.--The Secretary shall establish within 
     the National Institutes of Health, a center to be known as 
     the National Center for Pain Research (hereafter referred to 
     in this subpart as the `Center'). The Center shall be headed 
     by a Director (hereafter referred to in this subpart as the 
     `Director') who shall be appointed by the Director of NIH, 
     after consultation with experts in the fields of pain 
     research and treatment representing the disciplines 
     designated in subsection (b)(3), and have the powers 
     described in section 405.
       ``(b) General Purpose.--The general purpose of the National 
     Center for Pain Research is--
       ``(1) to improve the quality of life of individuals 
     suffering from pain by fostering of

[[Page S7890]]

     clinical and basic science research into the causes of and 
     effective treatments for pain;
       ``(2) to establish a national agenda for conducting and 
     supporting pain research in the specific categories described 
     in subparagraphs (A), (B), (C), and (D) of paragraph (3);
       ``(3) to identify, coordinate and support research, 
     training, health information dissemination and related 
     activities with respect to--
       ``(A) acute pain;
       ``(B) cancer and HIV-related pain;
       ``(C) back pain, headache pain, and facial pain; and
       ``(D) other painful conditions;
     including the biology of pain, the development of new and the 
     refinement of existing pain treatments, the delivery of pain 
     treatment through the health care system and the coordination 
     of interdisciplinary pain management, that should be 
     conducted or supported by the National Institutes of Health;
       ``(4) to conduct and support pain research, training, 
     education and related activities that have been identified as 
     requiring additional, special priority as determined 
     appropriate by the Director of the Center and the advisory 
     council established under subsection (c);
       ``(5) to coordinate all pain research, training, and 
     related activities being carried out among and within the 
     National Institutes of Health;
       ``(6) to initiate a comprehensive program of collaborative 
     interdisciplinary research among schools, colleges and 
     universities, including colleges of medicine and osteopathy, 
     colleges of nursing, colleges of chiropractic who are members 
     of the Association of Chiropractic Colleges, schools of 
     dentistry, schools of physical therapy, schools of 
     occupational therapy, and schools of clinical psychology, 
     comprehensive health care centers, and specialized centers of 
     pain research and treatment; and
       ``(7) to promote the sufficient allocation of the resources 
     of the National Institutes of Health for conducting and 
     supporting pain research in the specific categories described 
     in subparagraphs (A), (B), (C), and (D) of paragraph (3).
       ``(c) Advisory Council.--
       ``(1) In general.--The National Pain Research Center 
     Advisory Board shall be the advisory council for the Center. 
     Section 406 applies to the advisory council established under 
     this paragraph, except that--
       ``(A) the members of the advisory council shall include 
     representatives of the broad range of health and scientific 
     disciplines involved in research and treatment related to 
     those categories of pain described in subsection (b)(2), and 
     shall include an equal number of representatives of 
     physicians who practice pain management, clinical 
     psychologists, individuals who provide physical medicine and 
     rehabilitative services (including physical therapy and 
     occupational therapy), nurses, dentists, and chiropractic 
     health care professionals;
       ``(B) the nonvoting ex officio members shall include--
       ``(i) the Director of the National Cancer Institute;
       ``(ii) the Director of the National Institute of Dental 
     Research;
       ``(iii) the Director of the National Institute of Child 
     Health and Human Development;
       ``(iv) the Director of the National Institute of Nursing 
     Research;
       ``(v) the Director of the National Institute of Allergy and 
     Infectious Diseases;
       ``(vi) the Director of the National Institute of Arthritis 
     and Musculoskeletal and Skin Diseases;
       ``(vii) the Director of the National Institute of 
     Neurological Disorders and Stroke;
       ``(viii) the Director of the National Institute on Drug 
     Abuse; and
       ``(ix) the Director of the National Institute on Disability 
     and Rehabilitation Research of the Department of Education; 
     and
       ``(3) the council shall meet at least two times each fiscal 
     year.
       ``(2) Duties.--The advisory council shall advise, assist, 
     consult with and make recommendations to the Director of the 
     Center concerning matters relating to the coordination, 
     research, training, education, and related general purposes 
     set forth in subsection (b), including policy recommendations 
     with regard to grants, contracts, and the operations of the 
     Center.
       ``(d) Establishment of Regional Pain Research Centers.--
       ``(1) Establishment.--To facilitate and enhance the 
     research, training, education, and related activities to be 
     carried out by the Center, the Director of the Center, in 
     consultation with the advisory council established under 
     subsection (c), shall establish not less than six regional 
     pain research centers.
       ``(2) Focus and distribution.--
       ``(A) Focus.--The regional centers established under 
     paragraph (1) shall have as their primary focus one of the 
     categories of pain described in subparagraphs (A), (B), (C), 
     and (D) of subsection (b)(3).
       ``(B) Distribution.--One regional pain research center 
     shall be established in each of the following six regions of 
     the United States as defined by the Secretary:
       ``(A) The northeast region.
       ``(B) The southeast region.
       ``(C) The midwest region.
       ``(D) The southwest region.
       ``(E) The west region, including Hawaii.
       ``(F) The Pacific Northwest region, including Alaska.
       ``(2) Use of technology.--The regional centers established 
     under paragraph (1) shall be a part of the Center and shall 
     be interconnected to the Center headquarters through the 
     utilization of distance learning technologies, satellites, 
     fiber optic links, or other telecommunications and computer 
     systems, to allow for the interactive exchange of 
     information, research data, findings, training programs, 
     educational programs, and other Center research and related 
     initiatives.
       ``(3) Initial regional centers.--The initial regional 
     centers shall be selected through a competitive process from 
     among institutions and centers of the type described in 
     subsection (b)(6).
       ``(e) Authorization of Appropriations.--
       ``(1) In general.--For the purposes of carrying out this 
     section, there are authorized to be appropriated $20,000,000 
     for each of fiscal years 1997, 1998, and 1999, and such sums 
     as may be necessary for fiscal year 2000.
       ``(2) Regional centers.--Of the amount appropriated under 
     paragraph (1) for fiscal year 1998 and each subsequent fiscal 
     year, not less than $1,000,000 shall be made available to 
     each of the regional centers established under subsection 
     (d).
       ``(3) Report to congress.--Not later than January 1, 1998, 
     and each January 1, thereafter, the Director of the Center 
     shall prepare and submit to the committees of Congress a 
     report concerning the total amount of funds expended to 
     support pain-related research in the year for which the 
     report was prepared.''.
                                 ______