Congressional Record, Volume 143 Issue 22 (Wednesday, February 26, 1997)

[Congressional Record Volume 143, Number 22 (Wednesday, February 26, 1997)]
[Senate]
[Pages S1659-S1681]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DeWINE (for himself and Mr. Graham):
S. 358. A bill to provide for compassionate payments with regard to
individuals with blood-clotting disorders, such as hemophilia, who
contracted human immunodeficiency virus due to contaminated blood
products, and for other purposes; to the Committee on Labor and Human
Resources.

THE RICKY RAY HEMOPHILIA RELIEF FUND ACT

Mr. DeWINE. Mr. President, I introduce, along with my distinguished
colleague Senator Bob Graham, the Ricky Ray Hemophilia Relief Fund Act
of 1997. This legislation will serve as the counterpart to similar
legislation that will be introduced in the House of Representatives by
Representative Porter Goss.
Mr. President, the purpose of this legislation is to offer some
measure of relief to families that have suffered serious medical and
financial setbacks because of their reliance on the Federal
Government's protection of the blood supply.
In 1995, the Institute of Medicine released the findings of a major
investigation into how America's hemophilia community came to be
decimated by the HIV virus.
According to that report, the Federal agencies responsible for blood
safety did not show the appropriate level of diligence in screening the
blood supply.
The Federal agencies did not move as quickly as they should have to
approve blood products that were potentially safer.
And the Federal Government did not warn the hemophilia community,
when the Government knew--or should have known--that there were
legitimate concerns that the blood supply might not be safe.
The Government's failure caused serious harm to real people--people
who were counting on the Government to meet its responsibilities.
Mr. President, this legislation is about trust. A substantial number
of citizens trusted the Government to exercise due vigilance, and the
Government let them down. It's only right that the Government try to
offer them some measure of relief.
Mr. President, I recognize the budgetary realities we have to
confront. As we move through the process, we will have to address the
issue of compensation. I think it's absolutely essential that we begin
this process--now.
______

By Mr. CRAIG:

[[Page S1660]]

S. 360. A bill to require adoption of a management plan for the Hells
Canyon National Recreation Area that allows appropriate use of
motorized and nonmotorized river craft in the recreation area, and for
other purposes; to the Committee on Energy and Natural Resources.

HELL'S CANYON NATIONAL RECREATION AREA AMENDMENTS

Mr. CRAIG. Mr. President, Public Law 94-199, designating the Hells
Canyon National Recreation Area, was signed into law December 31, 1975.
Section 10 of the act recognizes that the use of both motorized and
nonmotorized river craft are valid activities on the Snake River within
the recreation area.
The language seems clear. However, assurances by the Congress and the
Forest Service 22 years ago that the long-established and traditional
use of motorized river craft would be continued are now being callously
disregarded by the agency.
The most recent indication of this attitude has arisen during a
review and revision of the river management plan for the NRA. Despite
the lack of any demonstrable resource problems, and in the face of
overwhelming public support for motorized river craft, the agency has
again decided to close part of the river to powerboats. The new river
management plan would close the heart of the canyon to motorized river
craft for 21 days during the peak of the recreation season. Such a
closure would also prohibit traditional motor use of the wild river
segment to reach privately-owned lands within the scenic river segment
of the NRA.
The revised management plan is still in dispute as the result of
appeals filed by commercial motorized river users. The vast majority of
people, over 80 percent, who recreate in the Hells Canyon segment of
the Snake River do so by motorized river craft. Some are private
boaters, but most travel with commercial guides on scenic tours. This
popular form of recreation is accomplished with a minimum of impact to
the river, the land or other resources.
Most river users, motorized and non-motorized, are willing to share
the river. However, a small group of non-motorized users objects to
seeing powered craft even though they have a rich choice of
nonmotorized alternatives in this geographic area, such as the Selway
and Middle Fork of the Salmon Rivers. Motorized users, however, don't
have that luxury. The only other white water rivers open to them in the
entire Wild and Scenic River System are portions of the Rogue and
Salmon Rivers. Without a single doubt, the Hells Canyon portion of the
Snake River is our Nation's premier whitewater power boating river.
Mr. President, the Snake River is different from most rivers in the
Wild and Scenic System. It is a high-volume river with a long and
colorful history of use by motorized river craft. The first paying
passengers to traverse its rapids on a motor boat made their journey on
the 110-foot Colonel Wright in 1865. Later, the 136-foot Shoshone made
its plunge through the canyon from Boise to Lewiston in 1870 and was
followed by the 165-foot Norma in 1895. Gasoline-powered craft began
hauling people, produce, and supplies in and out of the canyon in 1910,
and the first contract for regular mail delivery was signed in 1919,
continuing today. The Corps of Engineers began blasting rocks and
improving channels in 1903. They worked continuously until 1975 to make
the river safer for navigation.
Mr. President, as you can see, the use of motorized river craft is
deeply interwoven in the history, traditions, and culture of Hells
Canyon. That is why Congress deliberately created a non-wilderness
corridor for the entire length of the river in the authorizing
legislation. During debate, Congress tried to make it clear that use of
both motorized and nonmotorized river craft would be valid uses of the
river within the recreation area--the entire river for the entire year.
It was not their intent in 1975 to allow the managing agency to decide
that one valid use would prevail to the exclusive use over the other.
Quite clearly, the issue of power boating's validity will not be
settled unless decided by the courts or unless Public Law 94-199 is
clarified by Congress. The courts are already burdened by too many
cases of this type, resulting in a waste of time, energy, and financial
resources for both the United States and its citizens. The only
practical and permanent resolution of this issue is to clarify
congressional intent in a manner that will not allow any future
misunderstanding. This is what I propose to do with this legislation.
______

By Mr. JEFFORDS:
S. 631. A bill to amend the Endangered Species Act of 1973 to
prohibit the sale, import, and export of products labeled as containing
endangered species, and for other purposes; to the Committee on
Environment and Public Works.

the rhino and tiger product labeling act

Mr. JEFFORDS. Mr. President, the bill I am introducing today works to
end the illegal killing of rare and endangered species that are close
to extinction. These species include rhinos, tigers, bears, and many
other animals that are slaughtered for senseless reasons. The bill,
titled the Rhino and Tiger Product Labeling Act, seeks to amend the
Endangered Species Act of 1973 to prohibit the sale of products labeled
as containing endangered species.
Since 1970, the world's population of rhinos has declined by 90
percent. Among the 5 species of rhinos, fewer than 11,000 individual
rhinos exist in the wild. Tigers are facing a similar fate. At the turn
of the century, as many as 100,000 tigers lived in the wild. Today,
less than 5,000 tigers remain. Three subspecies are already extinct,
and the remaining five subspecies are found only in sparse pockets of
Asia.
The greatest threat to the existence of rhinos and tigers in the wild
continues to be the high demand for products containing rhino horn and
tiger parts. The prohibition of the illegal trade in endangered species
parts has not been well enforced in most Asian countries, where rhino
and tiger products are valued for their medicinal value. Although the
primary market for these illegal products continues to be in Asia, a
large market has developed here in America.
Investigators have found that in the United States, the trade in
endangered species continues to be widely practiced. Many pharmacies in
Los Angeles and New York offer rhino and tiger products for sale--a
strong indication that it is time for the United States to concentrate
on its role as a consumer nation of endangered species parts and
products. In a recent survey, investigators found that 80 percent of
pharmacies and supermarkets in New York's Chinatown district had tiger
products openly for sale. Many of these products were imported from
China. Demand for such products here in the United States is leading
directly to the elimination of these species in their native habitat
overseas. This trade must end.
To curb this trade we need effective labeling laws and we must ban
all products containing or claiming to contain ingredients derived from
endangered species. Many products which advertise ingredients such as
rhino horn or tiger parts do not even contain trace amount of these
endangered species. However, the mere fact that they are on store
shelves leads to increased demand for the real stuff. In addition,
these products have been tested in the United States by the Food and
Drug Administration and have been found to contain toxic metals that
are harmful to human health if taken in the doses found in many
traditional medicines. A ban on products containing ingredients from
endangered species as well as those claiming to contain endangered
species parts is vital to protect human health and to maintain the few
remaining rhinos, tigers and bears in their wild habitat.
My legislation will make it illegal to even intend to sell a product
containing an endangered species. Today, Fish and Wildlife
investigators are overwhelmed trying to control the illegal sale of
endangered species parts and products. This bill will allow
investigators to completely halt the sale of products labeled as
containing endangered species.
I am strong proponent of the protection and conservation of
endangered species. If we do not act now, future generations will not
be able to enjoy many of the species of wildlife now in existence.
Currently there are insufficient legal mechanisms enabling the U.S.
Fish and Wildlife Service to forcefully interdict and confiscate
products

[[Page S1661]]

that are labeled as containing endangered species and to prosecute the
merchandisers once the products are on store shelves. This bill seeks
to close a significant loophole in the illegal trade in products
containing or claiming to contain ingredients from endangered species.
My hope is that this legislation, when passed in the 105th Congress,
will help curb the escalating trade in wildlife and endangered species
parts and stem the decrease in the populations of some of the Earth's
most magnificent animals.
______

By Mr. LEAHY (for himself and Mr. Biden):
S. 362. A bill to deter and punish serious gang and violent crime,
promote accountability in the juvenile justice system, prevent juvenile
and youth crime, and for other purposes; to the Committee on the
Judiciary.

the anti-gang and youth violence control act of 1997

Mr. LEAHY. Mr. President, I rise to introduce the Anti-Gang and Youth
Violence Control Act of 1997. This is the President's juvenile justice
bill, and I am pleased to introduce it on behalf of the administration.
Like the Democratic leadership bill, S. 15, the President's Anti-Gang
and Youth Violence Control Act includes important provisions to address
the increases in juvenile crime and gang violence that we have seen
over the past decade.
Just as we proposed measures in S. 15 to streamline the procedures
for prosecuting violent juveniles, the President's bill would take
steps to ensure that serious juvenile offenses are addressed quickly
and efficiently by the courts.
In addition, the President's bill targets many of the same problems
we addressed in S. 15, such as increasing the penalties for witness
intimidation--a particular problem for prosecutors in gang cases--and
improving the rights of the victims of juvenile crime to include
restitution, notification of disposition, and greater public access to
juvenile proceedings.
The President's bill also addresses the Federal Government's grant
authority in the area of juvenile justice and delinquency prevention. I
applaud the President for his reform-minded effort for improving the
Federal Government's role in helping State and local authorities
prevent juvenile crime and juvenile victimization. I look forward to
working with the President and my colleagues on both sides of the aisle
on this issue. It is important that we reach a bipartisan agreement on
the role the Federal Government should play in this area as we move
forward into the next century.
Certain sections of the administration's bill differ from S. 15, and
I look forward to sorting out this and other differences in the
proposals.
I commend President Clinton and the Department of Justice on their
efforts to address the problems of gang and youth violence with the
concrete proposals in this bill. I urge my colleagues to put partisan
politics aside, to work together on finding constructive solutions to
these problems. Our challenge is to resolve any differences in approach
in ways that make sense and will work to reduce youth and gang
violence.
As we proceed to meet this challenge, I know we will depend heavily
on Senator Biden, our former chairman and ranking member of the
Judiciary Committee and now the ranking member on the Youth Violence
Subcommittee of the Judiciary Committee. He has worked hard and
effectively on these issues in the past and, I thank him in advance for
continuing to share his expertise on these important issues.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

ANTI-GANG AND YOUTH VIOLENCE ACT OF 1997--SECTION-BY-SECTION ANALYSIS

The Anti-Gang and Youth Violence Act of 1997 is a
comprehensive federal effort to address the nation's youth
and juvenile crime problem. This legislation contains many of
the proposed amendments to the federal code that were
contained in legislation introduced, but not enacted into law
during the 104th Congress. This legislation also redesigns,
refocuses, and enhances the federal government's role in
relation to state, local and Indian tribal governments in
combating and preventing juvenile and youth crime, violence,
gang involvement, and drug use. Additionally, this
legislation includes the authorization for several programs
submitted by the President in his fiscal year 1998 budget
request.

Title I--Findings, Policies, and Purposes

This title enumerates findings regarding juvenile crime and
violence, as well as purposes tied to the various provisions
of the legislation. Additional definitions are provided as
needed.

Title II--Targeting Violent Gang, Gun and Drug Crimes

Subtitle A--Federal Prosecutions Targeting Violent Gangs, Gun Crimes
and Illicit Gun Markets, and Drugs

Part 1--Targeting Gang and Other Violent Crimes

Section 2111. Increased penalties under the RICO law for
gang and violent crimes.
This amendment would boost the penalty for certain crimes
typically committed by gangs and other violent crime groups
by eliminating an anomaly in the penalty provisions of the
federal Racketeering Influenced and Corrupt Organizations
statute (18 U.S.C. 1963(a)). Specifically, the amendment
would increase the maximum penalty from twenty years to the
greater of twenty years or the maximum term applicable to a
racketeering activity on which the defendant's violation is
based. This principle already applies under the RICO statute
where the predicate racketeering activity carries a maximum
life sentence. The present twenty-year maximum applicable to
all other predicate racketeering offenses is anomalous in
light of the fact that several of the predicate offenses that
constitute ``racketeering activity'' themselves carry more
than twenty-year (but less than life) maximum prison terms,
e.g., 18 U.S.C. 1344 (bank fraud) and 21 U.S.C. 841(b)(1)(B)
(large-scale drug trafficking).
Section 2112. Increased penalty and broadened scope of
statute against violent crimes in aid of racketeering.
This amendment would close loopholes in 18 U.S.C. 1959, the
law punishing violent crimes in aid of racketeering. The
statute presently and anomalously reaches threats to commit
any crime of violence (with the requisite intent) but only
the actual commission of some such crimes. The amendment also
would clarify that the term ``serious bodily injury'' in 18
U.S.C. 1959 shall be defined as provided in 18 U.S.C. 1365.
This proposal also would increase penalties for certain
violent crimes in aid of racketeering in recognition of the
serious nature of such crimes and to bring the penalties in
line with other penalties for similar crimes in title 18.
First, the amendment would increase from a maximum of ten
years' imprisonment to a maximum of life imprisonment a
conspiracy or attempt to commit murder or kidnapping, in
violation of 18 U.S.C. 1959. That statute punishes various
violent offenses committed in aid of racketeering activity.
The present ten-year maximum penalty for a conspiracy or
attempt to commit murder or kidnapping in aid of racketeering
is clearly inadequate. The maximum penalty for a conspiracy
to commit a murder within the special maritime and
territorial jurisdiction of the United States is life
imprisonment, 18 U.S.C. 1117, as is the maximum penalty for a
conspiracy to commit kidnapping, 18 U.S.C. 1201(c). Such acts
when performed with the additional intent of furthering
racketeering activity deserve no lesser punishment. Moreover,
an attempt warrants an equivalent sanction as a conspiracy.
Second, the amendment would increase from five years to ten
years the maximum penalty for committing or threatening to
commit a crime of violence under paragraph (4). Finally, the
amendment would increase from three years to ten years the
maximum penalty for attempting or conspiring to commit a
crime involving maiming, assault with a dangerous weapon or
assault resulting in serious bodily injury under paragraph
(6).
Section 2113. Facilitating the prosecution of car-jacking
offenses.
This section would eliminate an unjustified and unique
scienter element created for the offense of carjacking by the
enactment of section 60003(a)(14) of the Violent Crime
Control and Law Enforcement Act. The carjacking statute, 18
U.S.C. 2119, essentially proscribes robbery of a motor
vehicle. It punishes the taking of a motor vehicle that has
moved in interstate or foreign commerce ``from the person or
presence of another by force and violence or by
intimidation.'' The basic penalty is up to fifteen years'
imprisonment but rises if serious bodily injury or death
results.
Prior to the enactment of VCCLEA, the offense applied only
if the defendant possessed a firearm. Section 60003(a)(14) of
that law appropriately deleted the firearm requirement, as
had been proposed in the Senate-passed bill, but in
conference a new scienter element was added that the
defendant must have intended to cause death or serious
bodily injury. This unique new element will
inappropriately make carjackings difficult or impossible
to prosecute in certain situations. Robbery offenses
typically require only what the carjacking statute
formerly required by way of scienter, i.e., that property
be knowingly taken from the person or presence of another
by force and violence or by intimidation. The Hobbs Act,
18 U.S.C. 1951, the quintessential federal robbery law
which carries a higher maximum penalty

[[Page S1662]]

than the carjacking statute, essential defines ``robbery''
in this manner. The new requirement of an intent to cause
death or serious bodily harm will likely be a fertile
course of argument for defendants in cases in which no
immediate threat of injury occurs, such as where a
defendant enters an occupied vehicle while it is stopped
at a traffic light and physically removes the driver. Even
when a weapon is displayed, the defendant may argue that
although it was designed to instill fear, he had no intent
to harm the victim had the victim in fact declined to
leave the car.
Carjacking is one of the most serious types of robbery
precisely because, unlike other person property, a car is a
place where people are accustomed to feel safe and where they
and their family spend hours of their lives. To give
defendants who take cars from the person or presence of their
occupants by force and violence or intimidation a new legal
tool with which to resist their prosecution is unjustified.
This new element should be eliminated as soon as possible
from Section 2119. The proposed amendment would do so.
Section 2114. Facilitation of RICO prosecutions.
This amendment is intended to overcome decisions in the
First and Second Circuits that require proof that a RICO
conspiracy defendant agreed personally to commit at least two
acts of racketeering activity. United States v. Ruggiero, 726
F. 2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831 (1984);
United States v. Winter, 663 F. 2d 1120, 1136 (1st Cir.
1981), cert. denied, 460 U.S. 1011 (1981). See also United
States v. Sanders, 929 F. 2d 1466, 1473 (10th Cir.), cert.
denied, 112 S. Ct. 143 (1991). Virtually all other circuits
have more recently rejected these holdings and have concluded
that it is sufficient to show that the defendant joined the
conspiracy and agreed that two or more racketeering acts
would be committed by some conspirators on behalf of the
enterprise. See, e.g., United States v. Pryba, 900 F. 2d 748,
759-60 (4th Cir. 1990); United States v. Traitz, 871 F. 2d
368, 395-96 (3 d Cir.), cert. denied, 493 U.S. 821 (1989);
United States v. Neapolitan, 791 F. 2d 489, 491-98 (7th Cir.
1986), cert. denied, 479 U.S. 1101 (1987); United States v.
Joseph, 781 F. 2d 549, 554-55 (6th Cir. 1986; United States
v. Tille, 729 F. 2d 615, 619 (9th Cir.), cert. denied, 469
U.S. 845 (1984); United States v. Carter, 721 F. 2d 1514,
1528-31 (11th Cir.), cert. denied, 469 U.S. 819 (1984).
There is no reason to require that a defendant charged with
RICO conspiracy personally commit racketeering acts. Standard
conspiracy law does not contain such a requirement. See,
e.g., Pinkerton v. United States, 328 U.S. 640, 645-48
(1946). It should be sufficient to show that the defendant
joined the overall conspiracy and agreed to the commission of
a pattern of racketeering activity by others on behalf of the
conspiracy. This amendment resolves this conflict in the
circuits.
Section 2115. Elimination of the statute of limitations for
murder and Class A felonies.
This section makes important changes in federal law and
will enhance the ability of federal prosecutors to bring
serious offenders to justice. The first proposal relates to
the prosecution of certain murders. Current law provides that
no statute of limitations shall apply for the commission of a
federal crime punishable by death. 18 U.S.C. Sec. 3281. This
statute should be amended to further eliminate the statute of
limitations for any federal offense involving murder, even if
the crime does not carry the death penalty. The rationale
behind this proposal is straightforward. Most states have no
statute of limitations for murder. Moreover, the act of
killing another person is so serious that no murderer should
go unpunished simply because the government was unable to
develop a case for many years.
By virtue of the 1994 Crime Act, most murders committed
during the course of a federal offense are now punishable by
the death penalty--and thus already have no statute of
limitations. The 1994 Crime Act only applies, however, to
murders committed on or after the Crime Bill was passed on
September 13, 1994. The proposed legislation will help bridge
this gap by eliminating the statute of limitations for
murders committed within five years of the date of passage of
the legislation and September 13, 1994. Furthermore, the
Crime Act did not provide for the death penalty for murders
committed in violation of the RICO statute. 18 U.S.C.
Sec. Sec. 1961 et seq. The proposed legislation would bridge
another important gap by eliminating the statute of
limitations for RICO offenses when murders are committed in
furtherance of a racketeering enterprise.
The second proposal relates to the prosecution of certain
violent crimes and drug trafficking crimes. Current law
provides that the general federal five-year statute of
limitations applies to non-capital crimes of violence and
drug trafficking crimes. 18 U.S.C. Sec. 3282. This proposal
extends to 10 years the statute of limitations for all crimes
of violence and drug trafficking crimes (except for cases
involving murder) currently classified as Class A felonies.
Pursuant to 18 U.S.C. Sec. 3559, Class A felonies are
the most serious federal crimes, which carry a maximum
sentence of life imprisonment or death.
This proposal is necessary for several reasons. First,
evidence of gang-related and other violent crimes, as well as
drug trafficking crimes, often develops years after the
crimes were committed because the organizations, gangs, and
racketeering enterprises that typically perpetrate such
crimes enforce strict codes of silence--through violence and
threats of violence--on their members. Thus, some violent
crimes and drug trafficking crimes are not solved until
imprisoned defendants begin to cooperate after spending years
behind bars--years in which the five-year statutes of
limitations may have lapsed. Second, society's interest in
repose and fairness to prospective defendants is greatly
outweighed by society's interest in punishing those
individuals who commit crimes that are so serious that
Congress has imposed a maximum sentence of life imprisonment
or death. Under current law, theft of major art work carries
a 20-year statute of limitations (18 U.S.C. Sec. 3294), and
most white-collar crimes involving financial institutions
(e.g., theft of money by a bank teller) carry a 10-year
statute of limitations (18 U.S.C. Sec. 3293). Given that
Class A crimes of violence and drug trafficking crimes
generally are at least as harmful to society as these
offenses, there is no reason for these Class A felonies to
carry such a relatively short statute of limitations.
Section 2116. Forfeiture for crimes of violence,
racketeering, and obstruction of justice.
This section extends the forfeiture statutes to cover all
crimes of violence plus the racketeering crimes set forth in
Chapter 95 (18 U.S.C. Sec. 1951-60), including extortion,
murder-for-hire, and violent crimes in aid of racketeering,
and the obstruction of justice offenses set forth in Chapter
73 (18 U.S.C. Sec. 1501-17). Presently, there is no
forfeiture authority for such offenses except when they are
included in a RICO prosecution.

Part 2--Targeting Serious Gun Crimes and Protecting Children from Gun
Violence

Section 2121. Gun ban for dangerous juvenile offenders.
This amendment would make it unlawful for any person
adjudicated a juvenile delinquent for serious violent
felonies or drug crimes to receive or possess firearms. It
would also make it unlawful for any person to sell or
otherwise dispose of any firearm to any person knowing or
having reasonable cause to believe that the recipient has
been adjudicated a juvenile delinquent for such crimes. Under
current law, persons adjudicated juvenile delinquent, even
for the most serious crimes, e.g., murder, may receive and
possess firearms as adults. This amendment will ensure that
such juveniles will be ineligible to possess firearms after
the finding of juvenile delinquency.
The disability will only apply to the most serious drug
offenses and violent crimes, as enumerated in the recently
enacted ``three-strikes'' law (but because it would otherwise
be impossible to administer, the proposed statutory reference
incorporates the basic offenses enumerated in paragraph
(c)(2) of section 3559, without the exceptions set forth in
paragraph (3)). In addition, this amendment will only apply
to findings of acts of juvenile delinquency that occur after
the effective date of the statute. Thus, persons who have
acted or been adjudicated delinquent prior to the effective
date will not be subject to this disability. Adjudicated
delinquents would be permitted under the proposal to have
their firearms rights restored based upon an individualized
determination by an appropriate authority of the state of
their suitability for such restoration.
The proposal also would make a conforming change to the
restoration of rights statute affecting adult convictions.
One of the most serious problems today hindering enforcement
of a federal firearms statutes arises from the definition of
``conviction'' in 18 U.S.C. 921(a)(20). Under 18 U.S.C.
922(g), it is unlawful for a convicted felon to possess a
firearm. Section 922(g) violations also serve as the basis
for the mandatory penalties applicable under the Armed Career
Criminal Act, 18 U.S.C. 924(e), for 922(g) violators with
three or more crime of violence or serious drug trafficking
convictions. What is a ``conviction'' is therefore vital to
the enforcement of these important provisions.
Prior to the 1986 Firearms Owners' Protection Act, a
conviction for purposes of federal firearms prohibitions was
a question of federal, not state, law. Federal law provided
that once an individual was convicted of a felony, that
person remained under a federal firearms disability
irrespective of state laws purporting to restore the person's
rights to possess firearms. Offenders could apply for relief
from firearms disabilities to the Secretary of the Treasury.
The 1986 Act, however, changed this policy and provided, in
18 U.S.C. 921(a)(20), that a conviction for which a person
has had civil rights restored generally ``shall not be
considered a conviction'' under federal firearms statutes.
The 1986 amendment has had adverse effects from the
standpoint of public safety. This results from the fact that
about half the states have laws that provide for some form of
automatic firearms rights restoration, including several
states that provide for such restoration after a waiting
period, and at least one state that automatically restores
firearms possession rights immediately upon completion of a
felon's sentence, so that the felon is enabled to walk
directly out of prison into a gun dealer's establishment and
legally arrange to purchase a firearm. Other states make
restoration of rights automatic except for certain categories
of felons (typically those convicted of violent crimes),
while still other states make restoration automatic for
some types of firearms but not others.
Under the proposed amendment, state laws restoring firearms
rights would continue to be recognized for federal firearms
enforcement purposes, but only if the restoration of

[[Page S1663]]

rights was done on an individualized rather than an automatic
basis, including a determination that the circumstances of
the person's conviction, and his or her record and
reputation, make it unlikely that the person will endanger
public safety. The Federal Government should not give effect
to state restoration of rights statutes that provide for no
individualized consideration of the offender's likelihood of
committing future crimes. About half the states currently
restore firearms rights only after such an individualized
review. The remaining states need not change their laws if
they do not wish to do so, but the Congressional policy
underlying the federal felon-in-possession prohibition in 18
U.S.C. 922(g) should not be deemed superseded by a state law
that automatically restores a felon's firearms rights. Such
automatic restoration laws insufficiently protect the public
safety, not only in the states that provide for such
automatic restoration but in other states to which the
convicted felon may travel.
The proposed amendment also includes a provision, in the
final sentence, that would reverse the outcome in United
States v. Indelicato, 97 F.3d 627 (1st Cir. 1996). The Court
there held, contrary to other courts of appeals, that where a
state had never deprived a convicted felon of his or her
civil rights as a result of the conviction, that person was
to be considered as if the state had ``restored'' such
rights. Whether or not this interpretation is deemed correct
under the current law, as a matter of policy it makes sense
to require a state to make an individualized determination of
suitability to possess firearms in every case involving a
conviction of a state crime punishable by more than one year
in prison.
Section 2122. Locking devices for firearms.
The amendment would require Federal firearms licensees,
other than licensed collectors, to provide a locking device
with every firearm sold to a nonlicensee. The term ``locking
device'' would be defined as a device that can be installed
on a firearm that prevents the firearm from being discharged
without removing the device. It would also include firearms
being developed which can ``identify'' their lawful possessor
by the use of a personal electronic ``key'', palmprint, or
other identifier. The provision is intended to provide added
safety to gun owners and to prevent accidental discharges
that can result when children gain access to firearms.
Section 2123. Enhanced penalties for discharging or
possessing a firearm during a crime of violence or drug
trafficking crime.
In Bailey v. United States, __ U.S. __, 116 S. Ct. 501, 133
L. Ed. 2nd 472 (1995), the Supreme Court put a restrictive
interpretation of the verb ``use'' in relation to a firearms
violation under 18 U.S.C. Sec. 924(c), finding that an
offender only ``uses'' a firearm if the weapon is ``actively
employed'' in connection with a criminal act. The legislative
proposal makes it clear that the statute punishes possession
of a firearm, as well as its ``use.'' Under the proposal,
possession of a firearm during the commission of a violent
crime or drug felony will result in a 5-year mandatory
minimum penalty. Offenders will receive a 10-year mandatory
minimum penalty if during the commission of a drug felony or
violent crime, the offender discharges the firearm or uses it
to inflict bodily harm.
Section 2124. Juvenile handgun possession.
This proposal would increase the penalties for violations
of 18 U.S.C. 922(x), which makes it unlawful for a person to
transfer a handgun to a juvenile or for a juvenile to possess
a handgun. Existing law provides a penalty of not more than
one year for violations of Sec. 922(x) and, if the person
transferring the handgun to the juvenile knew that the
handgun would be used in a crime of violence, a penalty of
not more than 10 years. Existing law also provides for
probation by juvenile offenders, unless the juvenile has been
previously convicted of certain offenses or adjudicated as a
juvenile delinquent.
The proposal would eliminate probation as a mandatory
sentence for juveniles. Thus, juveniles would be sentenced to
a penalty of not more than one year or, if previously
convicted under this section or adjudicated delinquent for an
act that would be a serious violent felony under 18 U.S.C.
3559(c) if committed by an adult, sentenced to up to five
years' imprisonment. The proposal also increases the penalty
for adults who transfer handguns to juveniles knowing that
they intend to use it in the commission of a crime of
violence to not less than three years nor more than 10 years
(currently only the ten-year maximum applies).
Section 2125. Increased penalty for firearms conspiracy.
This section would amend the firearms chapter of title 18
to provide that a conspiracy to commit any violation of that
chapter is punishable by the same maximum term as that
applicable to the substantive offense that was the object of
the conspiracy. An identical amendment was enacted to the
explosives chapter of title 18 by section 701 of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (P.L. 104-
132). This also accords with several other recent
congressional enactments, including 21 U.S.C. 846 (applicable
to drug conspiracies) and 18 U.S.C. 1956(h) (applicable to
money laundering conspiracies). This trend in federal law,
which is emulated in the penal codes of many States,
recognizes that, as the Supreme Court has observed,
``collective criminal agreement--partnership in crime--
presents a greater potential threat to the public than
individual delicts.'' Callanan v. United States, 364 U.S.
587, 593 (1961); accord, United States v. Feola, 420 U.S.
671, 693-94 (1975).

Part 3--Targeting Illicit Gun Markets

Section 2131. Certain gang-related firearms offenses as RICO
predicates
The proposed amendment would add a number of title 18
firearms offenses that are related to gang activity to the
RICO statute. A brief description of the covered offenses is
as follows: 922(a)(1) (illegally engaging in business of
dealing in firearms); (922(a)(6) (knowingly making false
statement to a licensee in order to acquire a firearm);
922(i) (transporting a firearm in interstate or foreign
commerce knowing it to have been stolen); 922(j) (possession
or disposition of a firearm or ammunition knowing it to have
been stolen); 922(k) (transporting or receiving a firearm
interstate with an obliterated serial number); 922(o)
(unlawful possession or transfer of a machinegun); 922(g)
(unlawful possession of a firearm that affects or has moved
in interstate commerce in a school zone); 922(u) (theft from
a licensee of a firearm that has moved in interstate
commerce; 922(v) (illegal transfer or possession of a
semiautomatic assault weapon); (922(x)(1) sale or transfer of
a firearm to a person known to be a juvenile); 924(b)
(transporting or receiving a firearm in interstate commerce
with intent to commit therewith a felony); 924(g) (traveling
interstate to acquire a firearm, with intent to commit a
crime of violence, drug trafficking offense, or other
enumerated felony); (24(h) (transferring a firearm with
knowledge it will be used to commit a crime of violence or
drug trafficking offense); 924(k) (smuggling a firearm into
the United States with intent to commit a crime of violence
or drug trafficking offense); 924(l) (theft of a firearm from
a licensee); and 924(m) (traveling in interstate or foreign
commerce to acquire a firearm, with intent to engage
illegally in business of dealing in firearms).
Section 2132. Felony treatment for offenses tantamount to
aiding and abetting unlawful purchases
This proposal would increase the punishment for the most
serious record keeping violations committed by federal
licensees, which are tantamount to aiding and abetting
unlawful deliveries or purchases of firearms, to the same
level of offense as that committed by the unlawful provider
or receiver. Sections 922(b) (1) and (3) proscribe sales of
firearms known to be juveniles or to reside out of State,
respectively. Each carries a five-year maximum sentence for a
willful violation under 18 U.S.C. 924(a)(1)(D). Sections
922(a)(6) and (d) proscribe, respectively, making false
statements to a licensee in relation to the acquisition of a
firearm, and knowingly selling a firearm to a convicted felon
or other prohibited category of firearm recipient. Each is
punishable by up to ten years' imprisonment.
At present, all record keeping violations by licensees are
misdemeanors carrying a maximum of one year in prison. This
is insufficient in the above situations, where the knowingly
false record keeping entry is very serious and closely
associate with or in the nature of aiding and abetting a
violation involving the provision of a firearm to a person
not entitled to obtain it. Accordingly, the amendment would
increase the penalty for such record keeping violations to
the same as that would attach to the underlying violation.
Section 2133. Secure storage of firearms inventories
This amendment would require Federal firearms licensees
other than collectors and gunsmiths to store their firearms
inventory in accordance with regulations issued by the
Secretary. The purpose of the amendment is to provide
security requirements for the firearms industry. Thefts of
firearms from dealers is a growing problem and contributes to
the number of firearms available to juvenile youth gangs and
other criminals. In issuing the storage regulations, the
Secretary would be required to consider the standards of
safety and security used by the firearms industry. The
industry, as well as other interested persons, could
participate in the rulemaking process and have input into the
regulations.
Section 2134. Suspension of federal firearms licenses and
civil penalties for willful violations of the Gun Control
Act
Under current law, the only available administrative
remedies to deal with licensees' violations are the extreme
measures of denying license renewal applications and license
revocation. There may be certain minor violations of the Gun
Control Act, e.g., failure to timely record information in
required records, that may not warrant license revocation or
license denial. This amendment provides new administrative
sanctions, less severe than current administrative remedies,
including license suspension, civil money penalties, and
authority to accept monetary offers in compromise of
violations of the law and regulations.
Section 2135. Transfer of firearm to commit a crime of
violence
Present 18 U.S.C. 924(h) makes it unlawful to transfer a
firearm ``knowing'' that the firearm will be used to commit a
crime of violence or drug trafficking crime. However, 18
U.S.C. 924(b) makes it unlawful to transport or receive a
firearm in interstate commerce ``with knowledge or reasonable
cause to believe'' that any felony is to be committed

[[Page S1664]]

therewith. Both statutes carry the same maximum penalty.
There is no plausible reason why section 924(h) is limited
to instances in which the actor has knowledge that a crime of
violence or drug trafficking crime will be committed, as
opposed to having ``reasonable cause to believe'' that such
is the case. Indeed, the offenses covered by section 924(h)--
violent felonies and drug trafficking felonies--are
inherently more serious than the offenses covered by section
924(b), which extends to all felonies. Accordingly, this
section would conform the scienter element in section 924(h)
by adding ``reasonable cause to believe'' to that statute.
Section 2136. Increased penalty for knowingly receiving
firearm with obliterated serial number.
The current maximum penalty for knowingly receiving a
firearm with an obliterated or altered serial number in
violation of 18 U.S.C. 922(k) is five years. This offense is
tantamount to that of receiving a firearm known to be stolen.
However, the latter carries a maximum penalty of ten years.
Accordingly, this amendment would increase the maximum
penalty for receiving a firearm with an obliterated or
altered serial number to ten years.
Section 2137. Amendment to the Sentencing Guidelines for
transfers of firearms to prohibited persons.
The proposed amendment would require the United States
Sentencing Commission to provide an increase in the base
offense level for certain firearms violators under sentencing
guideline section 2K2.1. The increase should assure that the
base offense level for a person who transfers firearms or
ammunition with knowledge or reasonable cause to believe that
the transferee is a convicted felon or otherwise in a
prohibited category is the same as that for the transferee.
Under Federal law the offense of selling or disposing of a
firearm or ammunition to any person knowing or having
reasonable cause to believe that the person is in a
prohibited category is punishable by a maximum term of
imprisonment of 10 years--the same penalty that applies to
the transferee. See 18 U.S.C. Sec. Sec. 922(d), 922(g) and
924(a)(2).
The sentencing guidelines provide that a prohibited person
who engages in a firearm offense is subject at least to
offense level 14. Thus, for example, a convicted felon who
unlawfully acquires a firearm in violation of section 922(g)
of title 18, United States Code, would face a sentencing
range of 18-24 months of imprisonment if his past conviction
resulted in a sentence of imprisonment of 60 days or more.
However, the transferor currently faces a guideline offense
level of just 12 (10-16 months of imprisonment for a first
offender, which can result in five months of imprisonment and
five months of supervised release with home confinement). The
transferor in this case should be subject to offense level
14, like the transferee.
Guideline section 2K2.1 also provides an offense level of
20 for a prohibited person whose offense involved a
machinegun or certain other dangerous firearms. The proposed
directive would require the Sentencing Commission to make
this offense level applicable to the transferor of such a
weapon if the transferor knows or has reasonable cause to
believe that the transferee is in a prohibited category.
However, the sentencing guidelines currently provide
additional base offense level increases in the case of
defendants who have prior felony convictions of either a
crime of violence or controlled substance offense,
Sec. 2K2.1(a)(1), (2), (3), and (4)(A). The directive to the
Sentencing Commission specifically exempts these additional
increases from its requirements.
Section 2138. Forfeiture of firearms used in crimes of
violence and felonies.
The amendment adds the authority to forfeit firearms used
to commit crimes of violence and all felonies to 18 U.S.C.
Sec. Sec. 981 and 982. This authority would be in addition to
the authority already available to Treasury agencies under 18
U.S.C. Sec. 924(d).
The purpose of the amendment is (1) to provide for criminal
as well as civil forfeiture of firearms; and (2) to permit
forfeiture actions to be undertaken by Department of Justice
law enforcement agencies who have authority to enforce the
statutes governing crimes of violence but who do not have
authority to pursue forfeitures of firearms under the
existing statutes.
Section 924(d) of title 18 already provides for the civil
forfeiture of any firearm used or involved in the commission
of any ``criminal law of the United States.'' The statute,
however, is enforced only by the Treasury Department and its
agencies; it provides no authority for the FBI, for example,
to forfeit a gun used in the commission of an offense over
which it has sole jurisdiction. Moreover, Sec. 924(d)
provides for civil forfeiture only.
Subsection (d) adds a provision to 18 U.S.C. Sec. 924(d)
intended to permit the Bureau of Alcohol, Tobacco and
Firearms to forfeit property that otherwise would have to be
forfeited by another agency. Under Sec. 924(d), ATF is
presently authorized to forfeit a firearm used or carried in
a drug trafficking crime. Property involved in the drug
offense itself, such as drug proceeds, may also be
forfeitable under the Controlled Substances Act, 21 U.S.C.
Sec. 881, but ATF does not presently have authority to
forfeit property under that statute and has to turn the
forfeitable property over to another agency. The amendment
does not expand the scope of what is forfeitable in any way,
but does allow the forfeiture to be pursued by ATF when the
agency is already involved in the forfeiture of a firearm in
the same case.
Finally, subsection (e) clarifies an ambiguity in the
present statute relating to the 120-day period in which a
forfeiture action must be filed. Presently, the statute says
that a forfeiture proceeding must be filed within 120 days of
the seizure of the property. This was intended to force the
government to initiate a forfeiture action promptly. In one
case, however, where the government did initiate an
administrative forfeiture action within the 120-day period,
the claimant filed a claim and cost bond which required the
government to begin the forfeiture action over again by
filing a formal civil judicial proceeding in federal court.
The claimant then moved to dismiss the judicial proceeding
because the complaint was filed outside the 120-day period.
The court granted the motion to dismiss because the literal
wording of Sec. 924(d) requires any forfeiture action against
the firearm to be filed within 120 days of the seizure.
United States v. Fourteen Various Firearms, __ F. Supp. __,
1995 WL 368761 (E.D. Va. June 19, 1995). This interpretation,
however, leads to unjust results in cases where the
government promptly commences an administrative forfeiture
action but the claimant waits the full time allotted to him
to file a claim. (Under Section 101 of this Act, the claimant
would have 30 days from the date of publication of notice of
the administrative forfeiture action to file a claim, which
is likely to be several months after the seizure even if the
government initiated the administrative forfeiture almost
immediately after the seizure.) In such cases, Congress could
not have intended the 120-day period for filing a judicial
complaint to count from the date of the seizure; indeed, it
is often the case that the claimant doesn't even file the
claim until more than 120 days have passed. Thus, the
amendment clarifies the statute to make clear that the
government must initiate its administrative forfeiture
proceeding within 120 days of the seizure and then will have
120 days from the filing of a claim, if one is filed, to file
the case in federal court. The amendment also tolls the 120-
day period during the time a related criminal indictment or
information is pending.
Section 2139. Forfeiture for gun trafficking
This section provides for the forfeiture, under 18 U.S.C.
Sec. Sec. 981 and 982, of vehicles used to commit gun
trafficking, such as transporting stolen firearms, and for
the proceeds of such offenses. The provision is limited to
instances in which five or more firearms are involved, thus
making it clear that it is not intended to be used in
instances where an individual commits a violation involving a
small number of firearms in his or her personal possession.

Part 4--Targeting Serious Drug Crimes and Protecting Children From
Drugs

Section 2141. Increased penalties for using minors to
distribute drugs
This provision would amend Section 420 of the Controlled
Substances Act (21 U.S.C. 861) to increase the current
mandatory minimum penalty for using or employing minors to
distribute drugs from one year to three years. Similarly, the
provision would increase the mandatory minimum penalty for a
second or subsequent violation of this statute from one year
to five years. The proposed increases are necessary to punish
persons who use or employ minors to distribute illegal drugs
and to deter others from engaging in such reprehensible
conduct.
Section 2142.1 Increased penalties for distributing drugs to
minors
This provision would amend Section 418 of the Controlled
Substances Act (21 U.S.C. 859) to increase the minimum
penalty for distributing drugs to minors from one year to
three years for a first offense, and from one year to five
years for a second or subsequent offense. The proposal would
also alter the age of the minor that triggers these
penalties. Under the proposed amendment, the penalties would
apply whenever a person at least eighteen years of age
distributes drugs to a person under eighteen. Presently, the
statute punishes a person at least eighteen who distributes
drugs to a person under twenty-one, thus reaching some
transactions in which the buyer is significantly older than
the seller. This makes little sense and is inconsistent with
the companion statute, 21 U.S.C. 861, which punishes persons
who employ minors to distribute drugs. The proposed amendment
would bring section 859 into conformity with section 861.
Section 2143.1 Increased penalties for drug trafficking in
or near a school or other protected location
This provision would amendment Section 419 of the
Controlled Substances Act (21 U.S.C. 860) to increase the
mandatory minimum penalty for distributing drugs in or near a
school or other protected location. The provision also would
increase the mandatory minimum penalty for second and
subsequent offenses from one to five years. The increased
penalties for drug trafficking in or near schools or other
protected locations are consistent with the other proposed
penalty increases in this legislation and are aimed at
protecting children from drug trafficking and abuse,
punishing drug dealers who target

[[Page S1665]]

children, and deterring others who might engage in such
conduct.
Section 2144.1 Serious juvenile drug trafficking offenses as
Armed Career Criminal Act predicates
This section would amend the Armed Career Criminal Act
(ACCA), 18 U.S.C. Sec. 924(e)(2)(A), to permit the use of an
adjudication of juvenile delinquency based on a serious drug
trafficking offense as a predicate offense under that Act.
The ACCA targets for a lengthy period of at least 15 years'
imprisonment those felons found in unlawful possession of a
firearm who have proven records of involvement in serious
acts of misconduct involving drugs and violence.
Section 2145. Attorney General authority to reschedule
certain drugs posing imminent danger to public safety.
Under existing law, the Attorney General is empowered to
add temporarily a substance to Schedule I of the Controlled
Substances Act when necessary to respond to an imminent
danger to public safety. See 21 U.S.C. 811(h). However, the
Attorney General is not authorized to reschedule a substance
that already has been placed on one of the schedules of the
Controlled Substances Act. Once a substance has been added to
one of the schedules, any rescheduling of that substance must
be done pursuant to the standard procedures for scheduling or
rescheduling a substance. Under the standard procedures, the
rescheduling of a substance can take several years.
The proposal would extend the Attorney General's existing
authority to schedule a substance on an emergency basis to
include the rescheduling of an already scheduled drug to
Schedule I. This authority will give the Attorney General to
respond to public health crises involving scheduled
substances, such as the rapidly escalating abuse of rohypnol,
a Schedule IV drug with no approved medical uses in the
United States.
The proposal contains the same limitations and procedures
as apply to the Attorney General's existing emergency
scheduling authority. The Attorney General could temporarily
reschedule a substance only for one year, with the
possibility of a one-time six month extension under certain
circumstances. In addition, the Secretary of Health and Human
Services would continue to have a formal role in advising the
Attorney General in any proposed rescheduling.
Section 2146. Increased penalties for using federal property
to grow or manufacture controlled substances.
This provision would increase the penalty for cultivating
or manufacturing a controlled substance on federally owned or
leased land. A significant amount of the domestic marijuana
crop is grown on federal lands and a substantial number of
methamphetamine laboratories also have been discovered on
federal lands. Federal law enforcement agencies believe that
the use of federal lands for cultivating and manufacturing
controlled substances has increased because there is no
possibility that the land will be forfeited as is the case if
the cultivation or manufacture took place on private
property.
Section 2147. Clarification of length of supervised release
terms in controlled substance cases.
This section resolves a conflict in the circuits as to the
permissible length of supervised release terms in controlled
substance cases. Under 18 U.S.C. 3583(b), ``[e]xcept as
otherwise provided,'' the maximum authorized terms of
supervised release are 5 years for Class A and B felonies, 3
years for Class C and D felonies, and 1 year for Class E
felonies and certain misdemeanors. The drug trafficking
offenses in 21 U.S.C. 841 prescribe special supervised
release terms, however, that are longer than those applicable
generally under section 3583(b). Those longer terms, which
may include lifetime supervised release, were enacted in 1986
in the same Act which inserted the introductory phrase
``Except as otherwise provided'' in section 3583(b). Because
of this clear legislative history and intent, two courts of
appeals have held that section 3583(b) does not limit the
length of supervised release that may be imposed for a
violation of 21 U.S.C. 841 when a greater term is there
provided. United States v. LeMay, 952 F.2d 995, 998 (8th Cir.
1991); United States v. Eng, 14 F.3d 165, 172-3 (2d Cir.
1994. One court of appeals, however, has reached the opposite
result, holding that the length of a supervised release term
that can be imposed for controlled substance cases is limited
by 18 U.S.C. 3583(b). United States v. Gracia, 983 F.2d 625,
630, (5th Cir. 1993); United States v. Kelly, 974 F.2d 22,
24-5 (5th Cir. 1992).
Although the issue has not arisen with frequency, the
conflict is entrenched and should be dealt with definitively.
Accordingly, the amendment would add the words
``Notwithstanding section 3583 of title 18'' to the title 21
controlled substance offenses in the parts of those statutes
dealing with supervised release to make clear that the longer
terms there prescribed control over the general provision in
section 3583.
Section 2148. Technical correction to assure compliance of
sentencing guidelines with provisions of all federal
statutes.
This section would amend 28 U.S.C. 994(a) to assure that
sentencing guidelines promulgated by the United States
Sentencing Commission are consistent with the provisions of
all federal statutes. Currently, section 994(a) contains a
requirement of consistency only with statutes in titles 28
and 18 of the United States Code. No discussion of this
somewhat peculiar limitation appears in the legislative
history, see S. Rep. No. 98-225, 98th Cong., 1st Sess., p.
163 (1983). The limitation seems to have been based on the
mistaken assumption that all provisions pertinent to the
promulgation of sentencing guidelines were contained in those
two titles. However, other provisions, such as mandatory
minimum sentences in title 21, are relevant and clearly are
meant to act as constraints on the guidelines. This amendment
will insure that guidelines are not created that are
inconsistent with the provisions of any relevant enactment
of Congress.
Section 2149. Drug testing, treatment, and supervision of
incarcerated offenders.
This section amends Section 20105(b) of the Violent
Offender Incarceration/Truth-In-Sentencing (VOI/TIS) grant
program of the Violent Crime Control and Law Enforcement Act
of 1994 by adding the language at Section 20105(b)(1)(B) and
Section 20105(b)(2). The victims' rights language at Section
20105(b)(A) is current law as Section 20105(b).
The amendment adds several requirements to the conditions a
state must meet in order to receive funding under the VOI/TIS
program. First, the state must by September 1, 1998, have a
plan for drug testing/monitoring and treatment for violent
offender housed in their corrections facilities. This plan
needs to include sanctions for inmates who test positive.
Second, the language at (2) would permit the state to use
funds received under the VOI/TIS program to pay the costs of
the testing and treatment required under (B). Currently the
provisions at (B) are found in the Conference Report H.Rpt.
104-863 that accompanies the Department's fiscal year 1997
appropriations act. The language at (2) is not included. The
goal of the amendment is to make the language at (B)
permanent and add the language at (2) by amending the
underlying law.

subtitle b--grants to prosecutors' offices to target gang crime and
violent juveniles

This subtitle amends Section 31702, Community-Based Justice
Grants for Prosecutors,'' of Title III of the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C. 13862) to
respond to the increase of violent juvenile offenders and the
rate of gang-related juvenile crime. This subtitle provides
needed resources for state and local prosecutors to
facilitate the prosecution of violent and serious juvenile
offenders. There is no existing comparable legislative text
and programs previously authorized to assist prosecutors have
not been appropriated. As part of the President's fiscal year
1998 budget proposal, this program is authorized for
appropriations of $100,000,000 for fiscal year 1998 and
$100,000,000 for fiscal year 1999.
Specifically, the legislation expands authority to: hire
additional prosecutors to reduce prosecutorial backlogs;
enable prosecutors to more effectively prosecute youth drug,
gang, and violence problems; supply the technology,
equipment, and training to assist prosecutors in reducing the
rate of youthful violent crime while increasing the rate of
successful identification and rapid prosecution of young
violent offenders; and assist prosecutors in their efforts to
engage in community-based prosecutions, problem solving, and
conflict resolution techniques through collaborative efforts
with law enforcement officials, school officials, probation
officers, social service agencies, and community
organizations.
There is also a two percent set aside of all funds
appropriated under this Part to be set aside for ``training
and technical assistance'' consistent with the above-
mentioned purposes. Similarly, 10 percent is taken ``off the
top'' of all funds appropriated under this Part to be set
aside for research, statistics, and evaluation'' consistent
with these purposes. Numerous jurisdictions have requested
training and technical assistance as a priority need.
Additionally, through the introduction of various bills,
Congress has evidenced its support for enhanced research,
statistics, and evaluation.

subtitle c--grants to courts to address violent juveniles

Subtitle C establishes federal grant funding for states,
units of local government, and Indian tribal governments to
use in developing and implementing innovative initiatives to
increase levels of efficiency, expediency, and effectiveness
with which juvenile and youths are processed and adjudicated
within the criminal and juvenile justice system. This is a
new grant authority to assist state, local, and tribal
courts, including probation and parole offices, public
defenders, and victim/witness service providers, to respond
to violent and serious youthful offenders.
This subtitle amends Section 21062 of Subtitle F of Title
XXI of the ``Violent Crime Control and Law Enforcement Act of
1994'' (42 U.S.C. 14161), that currently provides assistance
to state and local courts. This subtitle reintroduces the
Administration's State and Local Courts Assistance Program
Act to authorize the establishment of the juvenile gun
courts, drug courts, other specialized courts, and innovative
programs to better deal with the adjudication and prosecution
of juveniles. As part of the President's fiscal year 1998
budget proposal), this program is authorized for
appropriations of $50,000,000 for fiscal year 1998.

[[Page S1666]]

Title III--Protecting Witnesses To Help Prosecute Gangs and Other
Violent Criminals

Section 3001. Interstate travel to engage in witness
intimidation or obstruction of justice.
This section would amend the Travel Act (18 U.S.C. 1952) to
add witness bribery, intimidation, obstruction of justice,
and related conduct in State criminal proceedings to the list
of predicates under the Travel Act (18 U.S.C. 1952). Recent
studies demonstrate that witness intimidation is one of the
most serious impediments to the prosecution of violent
street gangs and drug trafficking organizations in State
courts. This amendment responds to the growing witness
intimidation problem by authorizing federal prosecution of
persons who travel in interstate commerce with the intent
to bribe or intimidate a witness, obstruct a criminal
proceeding, or engage in related conduct.
Section 3002. Expanding pretrial detention eligibility for
serious gang and other violent criminals.
This section would make three amendments to the pretrial
detention statutes designed to enhance the ability, in
appropriate circumstances, to use these statutes in
prosecutions against gang members and against other violent
criminals. Under the Bail Reform Act, 18 U.S.C. 3141 et seq.,
defendants charged with certain offenses can be detained
pretrial if the court concludes there is clear and convincing
evidence that no condition or combination of conditions of
release will adequately assure the safety of any other person
and the community. See 18 U.S.C. 3142 (e) and (f). The kinds
of charges that permit such detention on grounds of the
defendant's dangerousness include certain serious drug
trafficking offenses and a ``crime of violence''. They also
include any felony if the defendant has previously been
convicted of two or more crimes of violence or serious drug
trafficking offenses.
The first proposal would add a definition of the term
``convicted'' to include adjudications of juvenile
delinquency. Thus, it would permit pretrial detention, upon
the requisite showing, of persons charged with any felony,
e.g., interstate transportation of a stolen automobile, who
had two or more prior violent or drug convictions, including
juvenile delinquency adjudications for such conduct. This
should facilitate the use of pretrial detention when
appropriate against young career offenders such as gang
members.
The second proposed amendment relates to the definition of
``crime of violence'' in 18 U.S.C. 3156(a)(4). That
definition reaches offenses (A) that have as an element the
use or attempted or threatened use of physical force, (B) any
other felony offenses that, by their nature, involve a
substantial risk that physical force may be used in the
course of their commission, and (C), by virtue of an
amendment in the 1994 crime bill, any felony under chapter
109A or 110 (which proscribe sex offenses and child
pornography).
It is not clear whether the offenses of possession of
explosives or firearms by convicted felons qualify as
``crimes of violence'' under the second or (B) branch of the
definition. What little case law exists suggests that they
do. See United States v. Sloan, 820 F. Supp. 1133, 1136-41
(S.D. Ind. 1993); United States v. Aiken, 775 F. Supp. 855
(D. Md. 1991). See also, United States v. Dodge, 846 F. Supp.
181 (D. Conn. 1994). The Sloan court noted that, although the
Supreme Court held in United States v. Stinson, 113 S. Ct.
1913 (1993), that a similar definition of ``crime of
violence'' in the sentencing guidelines did not encompass the
felon-in-possession statutes, because the Sentencing
Commission had promulgated a policy statement to that effect,
the bail statutes serve a very different purpose from
sentencing enhancements and should be more broadly construed
to protect the public from continued endangerment by
convicted felons charged with a new offense of weapon
possession. (Prior to the Commission's policy statement, the
courts were divided as to whether a violation of 18 U.S.C.
922(a) was a crime of violence for sentencing purposes). This
proposed amendment would codify the result reached in Sloan.
It would not mandate pretrial detention but would permit the
government to show, in the case of a convicted felon such as
a gang member charged with violating the certain explosives
or firearms statutes, that no one or more conditions of
release would be adequate to safeguard society.
The third proposed amendment would make membership or
participation in a criminal street gang, racketeering
enterprise, or other criminal organization a factor to be
considered by courts in making bail determinations.
Presently, many other personal history and characteristics of
the individual charged are required to be considered in
making bail decisions, such as prior convictions, drug abuse,
and whether the alleged offense was committed while on
parole, probation, or other form of release pending criminal
trial. Clearly, gang or organized crime group membership is a
relevant factor that bears both on dangerousness and risk of
flight and that courts should take into account in making
bail determinations. The amendment is not intended to impinge
on rights of freedom of association but rather to reach
membership or participation in those organizations that
exist, at least in part, for the purpose of committing crimes
or depriving third parties of their lawful rights. See Madsen
v. Women's Health Center, Inc. 114 S. Ct. 2516, 2530 (1994).
Section 3003. Conspiracy penalty for obstruction of justice
offenses involving victims, witnesses, and informants.
Increasingly typical of many criminal gangs is violence
directed at silencing or retaliating against witnesses or
potential witnesses and informants. 18 U.S.C. 1512 and 1513
set forth offenses and penalties that, generally speaking,
adequately deter and punish such offenses. However, a
conspiracy to engage in witness intimidation or retaliation
in violation of these statutes is punishable only under the
catchall conspiracy statute, 18 U.S.C. 371, which carries a
maximum prison term of only five years. This is clearly
inadequate to vindicate an offense that involves, for
example, a conspiracy to kill a witness or potential witness
in a federal criminal proceeding. Such a conspiracy, if
perpetrated upon the special maritime and territorial
jurisdiction, would be punishable by up to life
imprisonment. 18 U.S.C. 1117. This is consistent with the
principle, recognized in some federal statutes and
prevalent in modern State criminal codes, that a
conspiracy warrants the same maximum penalty as the
offense which was its object. This principle is reflected
in several recently enacted federal statutes, including 21
U.S.C. 846 (drug conspiracies), 18 U.S.C. 1856(h)(money
laundering conspiracies), and 18 U.S.C. 844(n)(explosives
conspiracies). The proposed amendment in this section
would apply this principle to 18 U.S.C. 1512 and 1513 and
thus provide better protection from gang violence to
witnesses and informants.

Title IV--Protecting Victim's Rights

Title IV contains two Sections that expand the rights and
protections afforded to the victims of crime, particularly
crimes committed by juvenile offenders and crimes committed
against children. It should be noted that a number of other
provisions of the Anti-Gang and Youth Violence Act of 1997
expand the rights and protections of crime victims. For
example, the proposed Section 5002, which amends 18 U.S.C.
5032, would establish a rebuttable presumption that juvenile
proceedings shall be open to victims and members of the
public, with special protections and access afforded to crime
victims. In addition, proposed Section 5037 would expand the
allocution rights of crime victims, including the right to
have input into the predisposition report prepared by the
probation officer and the right to appear before the judge
and be heard prior to an order of disposition.
Section 4001. Records of crimes committed by juvenile
offenders.
The proposed Section 40001 would amend 18 U.S.C. 5038(a)(6)
to correct an oversight in current law. The amendment
affirmatively provides for a victim's or a victim's official
representative's allocation at the dispositional phase of the
juvenile proceeding. In addition, the new statutory language
clarifies that communication is allowable with the victim
about ``the status or disposition of the [juvenile]
proceeding in order to effectuate any other provision of
[state or federal] law''. This language clears up any
ambiguity in current law by explicitly extending to victims
of juvenile offenders the right to information about the
juvenile proceeding that they might need or be entitled to
under any other state or federal law, such as the victim's
rights set out in 42 U.S.C. 10606. Thus, under this new
language, victims of juvenile offenders would be treated like
victims of adult offenders. For example, victims would be
able: to know about the status of the proceedings and the
release status of the offenders; to consult intelligently
with the prosecutor; and to make a knowledgeable victim
impact statement at the time of the disposition. In addition,
if state law allows victim compensation or grants any other
rights, this provision allows communication about the federal
delinquency proceeding in order to effectuate those
provisions.
Fingerprints and photographs of adjudicated delinquents
found to have committed the equivalent of an adult felony
offense or a violation of 18 U.S.C. 922(x) and 924(a)(6)
(possession of a handgun by a juvenile) would be sent to the
Federal Bureau of Investigation (FBI) and made available in
the manner applicable to adult defendants.
The limited availability of juvenile criminal records is a
serious concern in connection with violent and firearms
offenses. In order to address this problem, the Department of
Justice amended its regulations in 1992 to expand the ability
of the FBI to receive and retain records from State courts
for ``serious and/or significant adult and juvenile
offenses.'' 28 C.F.R. 2032. The proposed bill would further
alleviate this problem by making corresponding changes in the
statutory rules for reporting offenses by juveniles who are
prosecuted federally. This amendment was passed in substance
by the Senate in the 103rd Congress as Section 618 of H.R.
3355.
Further disclosure of records relating to a juvenile or a
delinquency proceeding would be authorized if it would be
permitted under the law of the State in which the delinquency
proceeding took place. The proposal will allow for the
development of State systems of graduated sanctions by making
it possible for the court to take into account a juvenile's
criminal history when imposing sentence. The records could
also be used for analysis by the Department of Justice if so
requested by the Attorney General.
Finally, the new Section 5038(c) would be amended to allow
the disclosure of ``necessary docketing data''. This is
necessary because the nationwide military justice system
cannot process traffic tickets without disclosing some
docketing information.

[[Page S1667]]

Section 4002. Victims of Child Abuse Act extension of
authorizations.
This section extends the authorization of appropriations
for programs under Subchapter I of the Victims of Child Abuse
Act (42 U.S.C. 13001 et seq.). The programs authorized under
VOCA include regional children's advocacy centers, local
children's advocacy centers, and specialized training and
technical assistance for state and local practitioners
dealing with the prosecution of child abuse cases. These
programs currently are administered by the Office of Juvenile
Justice and Delinquency Prevention.

Title V--Federal Prosecution of Serious and Violent Juvenile Offenders

Section 5001. Short title.
The amendments made in this title are designed to provide
protection for the community and hold juveniles accountable
for their actions. They will help ensure that prosecution of
serious juvenile offenders is more swift and certain, and
that punishment of juvenile offenders will be commensurate
with the seriousness of the crimes committed.
Section 5002. Delinquency proceeding or criminal
prosecutions in district courts.
Under current law, the decision to charge a juvenile as an
adult for specified crimes is made by the United States
district court as a result of a motion by the United States
to transfer the juvenile for criminal prosecution. The
offenses subject to this transfer authority are limited. Even
more restrictive are the list of violent offenses for which a
juvenile under 15 years of age can be transferred.
There is virtually universal agreement among federal
prosecutors that the present system is cumbersome and has
frequently inhibited them for seeking adult prosecution.
Prosecutors who have sought the transfer of juveniles to
adult status have experienced many difficulties in the
application of an outmoded statute or have encountered judges
personally opposed to the transfer of juveniles, even in
cases involving very serious crimes. Moreover, there is a
presumption under present law in favor of a juvenile
adjudication, and a district court's decision to decline
transfer to adult status may be reversed only upon a finding
of abuse of discretion. United States v. Juvenile Male #1, 47
F.3d 68 (2d Cir. 1995). The result is a juvenile justice
system which fails to provide an effective deterrent to
juvenile crime and fails adequately to protect the public.
The proposed statute would amend 18 U.S.C. Sec. 5032 to
greatly strengthen and simplify the process for prosecuting
the most dangerous juveniles as adults in federal court. The
legislation would bring federal law into conformity with that
of many states by giving prosecutors, rather than the courts,
the discretion to charge a juvenile alleged to have committed
certain serious felonies as an adult or as a juvenile.
The proposed statute would retain the minimum age in
existing law for prosecution of a juvenile as an adult but
would expand the list of offenses with serious violent, gun
or drug felonies. A number of states have similar statutes.
The legislation would, however, create a distinction
between juveniles 16 years of age and older and those who are
younger. Prosecution of juveniles 13 to 15 years of age at
the time of the offense would require approval of the
Attorney General or his or her designee at a level not lower
than Deputy Assistant Attorney General. This internal Justice
Department approval requirement (which would not be
litigable) has been used in other types of particularly
sensitive cases and would ensure that careful scrutiny and
uniform standards are used in determining whether to bring
criminal charges against very young juveniles. Prosecutors
would retain the discretion to proceed against anyone under
age 18 as a juvenile delinquent. In those cases, the current
requirement for prosecutorial certification would apply, thus
assuring that most such cases are handled at the state or
local level.\1\
---------------------------------------------------------------------------
\1\ The federal prosecutor would be required to certify that
(A) the appropriate State does not have or declines to assume
jurisdiction over the juvenile, or (B) the offense is one
specified in the statute, and (C) there is a substantial
federal interest in the case of the offense to warrant the
exercise of federal jurisdiction. 18 U.S.C. Sec. 5032(a).
---------------------------------------------------------------------------
The proposed bill would amend section 5032, to expand the
list of serious felonies for which a juvenile can be
prosecuted as an adult to include additional violent crimes,
firearms charges and drug offenses. Under the amended
statutes, a juvenile could be prosecuted as an adult for the
following offenses:
(1) a serious violent felony or a serious drug offense as
described in section 3559 (c)(2) or (c)(3) or a conspiracy or
attempt under section 406 of the Controlled Substances Act or
under section 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. 846 or 963) to commit an offense
described in section 3559(c)(2); and
(2) the following offenses if they are not described in
paragraph (1): (A) a crime of violence (as defined in section
3156(a)(4)) that is a felony; (B) an offense described in
section 844(d), (k), or (l), or paragraph (a)(6) or
subsection (b), (g), (h), (j), (k), or (l), of section 924;
(C) a violation of section 922(o) that is an offense under
section 924(a)(2); (D) a violation of section 5861 of the
Internal Revenue Code of 1986 that is an offense under
section 5871 of such Code (26 U.S.C. 5871);
(E) a conspiracy to violate an offense described in any of
subparagraphs (A) through (D); or
(F) an offense described in section 401 or 408 of the
Controlled Substances Act (21 U.S.C. 841, 848) or a
conspiracy or attempt to commit that offense which is
punishable under section 406 of the Controlled Substances Act
(21 U.S.C. 846), or an offense punishable under section 409
or 419 of the Controlled Substances Act (21 U.S.C. 849, 860),
or an offense described in section 1002, 1003, 1005, or 1009
of the Controlled Substances Import and Export Act (21 U.S.C.
952, 953, 955 or 959), or a conspiracy or attempt to commit
that offense which is punishable under section 1013 of the
Controlled Substances Import and Export Act (21 U.S.C. 963).
To ensure the prosecution in one trial of all offenses
charged, a juvenile tried as an adult for one of the
designated offenses could also be prosecuted as an adult for
any other offenses properly joined under the Federal Rules of
Criminal Procedure. With these amendments, juveniles
convicted as adults could receive substantially higher
sentences than under current law, commensurate with their
crimes and criminal histories.
The existing statute excludes younger juveniles in Indian
country charged with certain crimes from prosecution unless
the tribal government opts to have the provision apply. The
proposal would continue this provision.
The proposed bill allows, in certain limited circumstances,
the district court to order that a juvenile charged as an
adult be tried under the juvenile delinquency procedures.
This is sometimes referred to as a ``reverse waiver.'' Any
juvenile charged with one of the offenses listed in 3(A)-(F)
or a juvenile under the age of 16 would be able to request a
``reverse waiver'' hearing. A motion making such a request
would have to be filed within 20 days of the juvenile first
being charged as an adult. At the hearing, the juvenile
charged as an adult would have the burden of establishing
that it would be in the interest of justice that the case be
tried under the juvenile delinquency provisions of 5032(a).
The criteria by which the court should make its determination
are listed in the proposed statute. The procedure for
appellate review of the court's ruling would be similar to
that presently used after a motion to suppress evidence. If
the trial court determined that the juvenile should be tried
as a juvenile delinquent, the government would have the right
to seek an expedited appeal. In the event the court
determined that the juvenile had not carried his or her
burden of establishing that it was in the interests of
justice that there be a reverse waiver, then the case would
proceed to trial as an adult prosecution and the juvenile
could appeal in the event of a guilty verdict.
Juveniles under the age of 16 charged as adults, but who
have not previously been adjudicated delinquent of a serious
violent felony, and who are charged with certain limited
offenses would be sentenced under the sentencing guidelines
but would not be subject to mandatory minimums.
Section 5032(a)(4) is amended to make clear that federal
juvenile proceedings are normally open to the public but may
be closed in the interests of justice or for good cause
shown. It also includes a provision allowing victims, their
relatives and guardians to be included when the public is
otherwise excluded, unless the same two tests applied for
exclusion of the public also independently require exclusion.
Section 5003. Custody prior to appearance before judicial
officer.
Minor changes have been made to make clear that the
procedures applicable to the arrest of a juvenile prior to
the formal filing of charges apply whether or not it is
anticipated that the juvenile will be charged as a juvenile
or as an adult.
Section 5004. Technical and conforming amendments to Section
5034.
This section is amended to clarify that it applies to
juvenile proceedings only.
Section 5005. Speedy trial.
The proposed status would require that for a juvenile in
custody juvenile delinquency proceedings begin within 45
days, rather than the current 30 days. Exclusions in the
Speedy Trial Act (18 U.S.C. Sec. 3161(h)) would also be made
applicable for the first time in juvenile delinquency
proceedings. This additional time is necessary, particularly
in cases involving both adult and juvenile defendants such as
in the prosecution of gangs, to protect witnesses and
critical evidence by ensuring that the trial of a juvenile
does not proceed before the case against the adults. The time
within which a disposition hearing must be held after an
adjudication of delinquency would also be increased from 20
to 40 days. Within the 40 days, the probation office would
prepare a predisposition report which would include victim
impact information. Forty days is consistent with federal
court practice generally and will provide the time necessary
to prepare a comprehensive report.
Section 5006. Disposition; availability of increased
detention, fines and supervised release for juvenile
offenders.
The legislation would amend section 5037 to make fines and
supervised release--not presently sentencing options--
available for adjudicated delinquents in addition to
probation and detention. The maximum period of official
confinement for an adjudicated delinquent would be increased
to ten years or through age 25 to give judges increased
sentencing flexibility for juveniles who are adjudicated
delinquent. The maximum period

[[Page S1668]]

for probation would be increased to the same period
applicable to an adult. To strengthen the accountability
of juveniles to victims, mandatory restitution would also
apply to adjudicated delinquents.
Section 5007. Technical amendment of Sections 5031 and 5034.
This section makes technical and confirming amendments to
Sections 5031 and 5034.

Title VI--Incarceration of Juveniles in the Federal System

Section 6001. Detention prior to disposition or sentencing.
Sections 6001 and 6002 relate to the detention of juvenile
offenders prior to disposition or sentencing. Specifically,
the bill would amend 18 U.S.C. 5035, to provide that juvenile
offenders less than 16 years of age being prosecuted as
adults but not yet convicted must be placed in an available,
suitable juvenile facility located within, or a reasonable
distance from, the district in which the juvenile is being
prosecuted. If such a suitable juvenile facility is not
available, the juvenile could be placed in any other suitable
facility located within, or a reasonable distance from, the
district in which the juvenile is being prosecuted. Only if
neither of these types of facilities is available could a
juvenile less than 16 years old be placed in some other
suitable facility. In order to protect the safety of these
younger offenders, the bill would require that, to the
maximum extent feasible, juveniles not be detained prior to
sentencing in any institution in which they have regular
contact with adult prisoners.
The requirement in current Section 5035, that a juvenile
charged with juvenile delinquency has regular contact with
adult prisoners would generally be retained in the proposed
legislation. However, the proposed bill would permit
juveniles adjudicated delinquent, once they reach the age of
18, to be placed with adults in a correctional facility. This
recommended change is consistent with recent regulatory
changes to state requirements under the Juvenile Justice and
Delinquency Prevention Act, 42 U.S.C. 5601 et seq.
Section 5039 of title 18, United States Code, would also be
amended to permit juveniles adjudicated delinquent to be
placed with adults in community-based facilities in order to
provide transition services for juveniles moving from
incarceration to the community and to allow juveniles to be
housed in their home communities. These changes would help
protect younger juveniles 13 or 14 years old, from 19 or 20
year-olds who, although adjudicated delinquent, may be as
dangerous as adults.
The legislation would also amend Sections 5035 and 5039 to
give the Attorney General discretion to confine with adults a
serious juvenile offender 16 years of age or older who is
charged as an adult, both before and after conviction. As
under present law, only those juveniles charged as adults
whom a judicial officer has found would, if released,
endanger the safety of another person or the community or
would pose a substantial risk of flight could be detained
prior to trial.
The current requirement in Section 5039 that every juvenile
under 18 years of age who is in custody be provided with
adequate food, heat, light, sanitary facilities, bedding,
clothing, recreation, education, and medical care, including
necessary psychiatric, psychological, or other care and
treatment would continue to apply to every juvenile charged
as an adult who is detained prior to trial and sentencing and
would be expanded to provide for reasonable safety and
security as well.
These changes are consistent with current practice in many
states and are proposed to ensure that the most violent
juvenile criminal offenders are not detained or incarcerated
with juvenile delinquents. By providing the discretion to
house older juveniles prosecuted as adults, adjudicated
delinquents once they reach the age of 18 and all juveniles
convicted as adults in adult facilities, this proposal would
also solve practical problems reported by the U.S. Marshals
Service and the U.S. Attorneys, who have experienced great
difficulty in finding suitable juvenile facilities for older
and violent juvenile offenders.
Section 6002. Rules governing the commitment of juveniles.
The legislative analysis for the amendments made in this
discussion are discussed in the analysis accompanying Section
5005.

Title VII--Office of Juvenile Crime Control and Prevention

Title VII establishes within the Office of Justice Programs
the ``Office of Juvenile Crime Control and Prevention,'' the
``Juvenile Crime Control and Prevention Formula Grant
Program,'' the ``Indian Tribal Grant Programs,'' and ``At-
Risk Children Grants Program,'' and ``Developing, Testing,
and Demonstrating Promising Programs Program,'' the
``Incentive Grant Programs,'' the ``Research, Statistics, and
Evaluation'' grants, and the ``Training and Technical
Assistance'' grants.
Subtitle A of Title VII creates the ``Office of Juvenile
Crime Control and Prevention'' to replace the Office of
Juvenile Justice and Delinquency Prevention. The new Office
of Juvenile Crime Control and Prevention responds to the
changing nature of juvenile and youth crime and represents a
more focused, efficient, and effective office. Fundamental
protections safeguarding juveniles and youth within the
juvenile justice system have been maintained, while
operations within this new office have been streamlined to
better coordinate and integrate juvenile and youth crime
initiatives with other Department of Justice activities,
particularly activities within the Office of Justice
Programs, the National Institute of Justice and the Bureau
of Justice Statistics, as well as with states, units of
local government, Indian tribal governments, and local
communities.
Section 7001. Short title.
This section provides that Title VII of the Anti-Gang and
Youth Violence Act may be cited as the ``Juvenile Crime
Control and Prevention State and Local Assistance Act of
1997.''

subtitle a--creation of the office of juvenile crime control and
prevention

Section 7101. Establishment of Office.
Section 2701 establishes the ``Office of Juvenile Crime
Control and Prevention'' under the general authority, and the
``supervision and direction'' of the Assistant Attorney
General for the Office of Justice Programs, United States
Department of Justice. The words ``supervision and
direction'' are used to describe the line of authority and
reporting relationship between the Director of the Office of
Juvenile Crime Control and Prevention and the Assistant
Attorney General for the Office of Justice Programs in the
same way the words ``supervision and direction'' are used to
describe the line of authority and reporting relationship
between the Secretary of the Department of Health and Human
Services and the Assistant Secretary of Health as cited at 42
United States Code Section 202. This section continues the
Department of Justice's efforts in maintaining coordination
and cooperation among those federal agencies whose
jurisdictions involve the health, welfare, education or
general well-being of youths and/or juveniles. There are
numerous transitional elements to provide for the continuity
between the Office of Juvenile Justice and Delinquency
Prevention and the new Office of Juvenile Crime Control and
Prevention, including a specific transfer for the current
Administrator of the Office of Juvenile Justice and
Delinquency Prevention to become the Director of the Office
of Juvenile Crime Control and Prevention.
Section 7102. Conforming amendments.
Section 7102 makes minor and technical conforming
amendments.
Section 7103. Authorization of appropriations.
Section 7103 provides for the authorization of
appropriations to carry out the functions of the Office of
Juvenile Crime Control and Prevention.

subtitle b--juvenile crime assistance

Subtitle B of Title VII of the Act maintains and
establishes numerous federal grant programs and initiatives--
the ``Juvenile Crime Control and Prevention Formula Grant
Program,'' the ``Indian Tribal Grant Program,'' the
``Incentive Grant Program,'' the ``Developing, Testing, and
Demonstrating Promising Programs'' program, the ``At-Risk
Children Grants Program,'' and two initiatives that provide
additional funding for research, statistics, evaluation, and
training and technical assistance.
Section 7201. Formula grant assistance.
Section 7201 amends the Omnibus Crime Control and Safe
Streets Act of 1968 by maintaining but revising the formula
grant program.
This federal grant program has fewer state planning
requirements, specifically allocates ten percent of all
grants funds appropriated to be set aside and used for
research activities (including program evaluations, data
collection efforts, and studies to identify initiatives that
reduce juvenile and youth crime and violence), and
specifically allocates two percent of all grant funds
appropriated to be set aside and used for providing training
and technical assistance to states and local communities for
the implementation of initiatives and programs that have
demonstrated a high likelihood of success.
Under a new formulation, all states receive 50 percent of
their allocation. To receive the remaining funds a state must
continue to follow established practices and procedures for
protecting juveniles within the juvenile justice system.
These provisions are reflected in the Department of Justice's
newly issued regulations, 28 CFR Part 31, governing this
section. Should a state fail to meet the requirements of this
section, the unallocated funds may be redistributed within
the state.
Section 7202. Indian tribal grants.
Section 7202 establishes for the first time a direct
federal grant program whereby funding goes directly from the
Office of Juvenile Crime Control and Prevention to Indian
tribal governments without utilizing state pass-through
procedures. Grant funds under this section shall be used for
initiatives designed to reduce, control, and prevent juvenile
and youth crime on Indian lands. This method of direct
funding is expected to better address and respond to the
needs and concerns of Indian tribes as well as increase
funding for these tribes. Also included is language
amending the Violent Crime Control and Law Enforcement Act
of 1994 to substantially increase funding targeted for
correctional facilities on Indian tribal lands.
Section 7203. At-risk children grant programs.
The ``At-Risk Children Grants Program'' is a new federal
grant program administered by the Office of Juvenile Crime
Control and Prevention that provides federal assistance to
states, for distribution by states to local

[[Page S1669]]

units of government and locally-based organizations to combat
truancy, school violence, and juvenile crime by providing
funding for local crime prevention and intervention
strategies. Programs and initiatives funded with these grants
are designed to address youth within the juvenile justice
system who, with some focused supervision, direction, and
discipline, can go forward to lead-crime-free, productive
lives. This program is an expansion of what is currently
known as Title V of the Juvenile Justice and Delinquency
Prevention Act.
Grants awarded pursuant of this Part may be used for:
supporting locally based efforts for assisting high-risk
juveniles and juveniles within the juvenile justice system;
preventing and reducing truancy and school drop outs;
enforcing juvenile curfews; supporting school safety
programs, juvenile mentoring, violence reduction programs,
intensive supervision services, jobs and life skills
training, family strengthening interventions, early childhood
services, after-school programs for juveniles, tutoring
programs, recreation and parks programs, parent training
initiatives, health services, alcohol and substance abuse
services, restitution and community services activities,
leadership development, accountability and responsibility
education, and other such efforts designed to prevent or
reduce truancy, school violence, and juvenile crime.
Local units of government that participate under this Part
must utilize a local planning board to develop a three-year
plan.
Section 7204. Developing, testing, and demonstrating
promising programs.
Section 7204 establishes new federal discretionary grant
programs for states, units of local government, and Indian
tribal governments administered by the Office of Juvenile
Crime Control and Prevention to develop, test, and
demonstrate initiatives and programs that have a high
probability of preventing, controlling, and/or reducing
juvenile crime. These grants were developed to motivate
states, units of local government, and Indian tribal
governments to independently generate innovative initiatives
to combat juvenile crime and youth violence.
This section replaces the current multiple discretionary-
categorical grant programs currently established by the
Juvenile Justice and Delinquency Prevention Act of 1974, by
consolidating several categorical grant programs into a
single, flexible, broad program.
Section 7205. Incentive grant program.
This section establishes new federal formula grant programs
for states, units of local government, and Indian tribal
governments to develop and advance initiatives to prevent,
control, reduce, evaluate, adjudicate, or sanction juvenile
or youthful crime.
The state agency that receives a formula grant is eligible
to apply for a grant under this Part. Every applicant must
submit assurances to the Director of the Office of Juvenile
Crime Control and Prevention that they have or will have
within one year of submittal of an application:
(1) implemented a system of accountability-based graduated
sanctions; and/or
(2) implemented a system of information collaboration and
dissemination regarding acts of juvenile delinquency and
adjudication of the same.
Grants authorized under this section may be used to:
Achieve paragraphs (1) and/or (2) above; advance
initiatives that prevent or intervene in the unlawful
possession, distribution, or sale of a firearm by or to a
juvenile; implement initiatives that facilitate the
collection, dissemination, and use of information regarding
juvenile crime; implement new initiatives that assist state
and local jurisdictions in tracking, intervening with, and
controlling serious, violent, and chronic juvenile offenders;
implement comprehensive program services in juvenile
detention and correction facilities; implement procedures
designed to prevent and reduce juvenile disproportionate
minority confinement; or for any other purpose related to
juvenile crime reduction, control, and prevention as
determined by the Director of the Office.
Section 7206. Research, statistics and evaluation.
Better research, evaluation, and statistical analysis is
critical to understanding and addressing the causes of
juvenile and youth crime. Under this section, increased
funding is combined with a collaboration between the Director
of the Office of Juvenile Crime Control and Prevention and
the Directors of the National Institute of Justice and the
Bureau of Justice Statistics to better direct and expand
these functions.
Section 7207. Training and technical assistance.
This section provides for specific federal grant funding
for much-needed technical and training assistance for
individuals in the fields of juvenile justice and juvenile
and youth crime. Funding under this section will enable more
communities to implement effective programs and initiatives
that reduce, control, and prevent juvenile and youth crime.
While this is a new federal grant program, training and
technical assistance have been established functions of the
Office of Juvenile Justice and Delinquency Prevention.
In further recognition of the importance of high quality
and focused research, statistical analysis, evaluation,
training, and technical assistance, Title VII includes
specific provisions within each funded program setting aside
a percentage of grant funds appropriated for the above-
mentioned functions. These monies are in addition to funding
appropriated for these functions in Sections 409 and 410 of
Title VII. Specifically, Sections 403, 404, 405, 406, 407,
and 408 of Title VII of this Act provide that 2 percent of
all funds appropriated for each funded program shall be set
aside for training and technical assistance consistent with
Title VII. Similarly, Sections 403, 404, 405, 406, 407, and
408 provide that 10 percent of all funds appropriated for
each funded program shall be set aside for research,
statistics and evaluation activities consistent with Title
VII.

subtitle c--missing and exploited children

This subtitle amends the ``Missing Children's Assistance
Act'' (42 U.S.C. 5771 et seq.) by extending its authorization
to the year 2001 and by setting aside funds appropriated
under this subtitle to be used for research, statistics,
evaluation, and training. Additionally, conforming language
is added to the Act to reflect the replacement of the Office
of Juvenile Justice and Delinquency Prevention with the new
Office of Juvenile Crime Control and Prevention.

Mr. BIDEN. Mr. President, today I am pleased to join Senator Leahy in
introducing on behalf of the administration, President Clinton's Anti-
Gang and Youth Violence Act, which the President announced last week in
Boston.
Three years ago Congress passed the Biden crime bill into law. Today,
the verdict is in--the law is working to reduce adult crime. For
example, the projected violent crime rate is the lowest since 1991 and
the projected murder rate is the lowest since 1971.
But we all know that, unlike adult crime, juvenile crime is on the
rise. The statistics are all too familiar: Violent juvenile crime
increased by 69 percent from 1987 to 1994; from 1983 to 1994 the
juvenile homicide rate jumped 169 percent; and just recently, the
Center for Disease Control has reported that the United States has the
highest rate of childhood homicide, suicide, and firearm related deaths
of 26 industrialized countries. We can and must do better than that.
The President's program is based in large part, on success stories
from cities like Boston, MA, which developed a comprehensive community-
based strategy to both prevent at-risk youth from becoming criminals
and deal harshly with those already in the criminal justice system.
Boston's Operation Night Light sends probation officers on patrol
with police to ensure that youth with criminal records stay out of
trouble and to assist in the investigation of new crimes. And Boston's
police force has joined with Federal law enforcement to target the
illegal gun markets that supply most of the guns to gangs and violent
youth.
The results have been dramatic: Youth homicides have dropped 80
percent citywide; violent crime in public schools dropped 20 percent in
just 1 school year; and most impressively--not a single youth died from
a firearm homicide during 1996. Now that is a record we could be proud
of.
We are taking the same balanced approach to juvenile crime and drug
abuse as we did in the 1994 Crime Act--tough sanctions, certain
punishment and protection of vulnerable kids.
Like the Democratic crime bill I, Along with Senators Daschle, Leahy,
and many others introduced earlier this year--S. 15--the President's
juvenile crime initiative cracks down on violent juvenile offenders and
youth gangs, takes concrete steps toward preventing drug and gun
violence, and invests in programs that will get kids off the streets
and into supervised programs during the after-school hours when they
are most likely to be the victims of gangs and criminals or the
customers of drug pushers.
The Anti-Gang and Youth Violence Act proposes to use Federal law
enforcement where its expertise and resources can best contribute to
fighting crime and the spread of gangs. The act also seeks assistance
for local police and criminal justice systems to help them address
matters that we all know are local law enforcement challenges that they
handle the best.
On the Federal level the President's bill: contains tough new Federal
penalties applicable to gang activities such as racketeering, witness
intimidation, car-jacking, and interstate firearms and drug
trafficking; cracks down on juvenile gun use by extending the Brady
bill to juveniles and requiring the sale of gun locks; makes juvenile
records more accessible to police and

[[Page S1670]]

educators; and targets abuse of drugs popular among youths by giving
the Attorney General emergency rescheduling authority.
But in recognition that the battle against youth crime and drug abuse
is fought primarily in our communities and schools, the President's
bill provides over $325 million annually to support State and local
governments to: hire additional prosecutors to target gang and youth
violence; create special drug and gun courts to handle violent
juveniles more effectively; create safe-havens for at-risk youth;
initiate systems of graduated sanctions so youth receive certain
punishment for their first offense instead of a mere slap on the wrist;
and promote use of curfews and put truants back in school where they
belong.
The President also proposes to recraft the Federal Juvenile Justice
Office by eliminating bureaucracies, streamlining programs, providing
additional flexibility to States and localities, and sharpening the
Office's focus on research and development. These are reforms that I
have long advocated.
However, the President's reform proposal reaffirms our commitment to
a few core principles that have worked well over the past 23 years--
juveniles should not be housed in adult jails or lockups; juveniles in
custody should be separated from adult criminals; status offenders
should not be incarcerated; and where it exists, the disproportionate
confinement of minorities must be addressed.
With the introduction of this legislation the administration, Senate
Republicans, and Senate Democrats have now all made it a priority to
address the problem of youth violence. Of course, there are other
proven, effective crime control programs that I would like to pursue--
such as extending the 100,000 Cops Program to put another 25,000 cops
on the beat. I am sure there are initiatives which others would want to
push.
But, instead of trying to pass an omnibus bill--which we all know
will be difficult, if not impossible--I think that we should keep our
focus on a targetted, specific bill which keeps our focus on the most
immediate concern: youth violence and the criminal victimization of
youth.
I look forward to working with the administration and my Republican
colleagues to craft responsible legislation that will address the
pressing concerns of the American public and be signed into law during
this session of Congress.
______

By Mr. HOLLINGS (for himself, Mr. Inouye, and Mr. Dorgan):
S. 363. A bill to amend the Communications Act of 1934 to require
that violent video programming is limited to broadcast after the hours
when children are reasonably likely to comprise a substantial portion
of the audience, unless it is specifically rated on the basis of its
violent content so that it is blockable by electronic means
specifically on the basis of that content; to the Committee on
Commerce, Science, and Transportation.

the children's protection from violent programming act

Mr. HOLLINGS. Mr. President, I rise to offer legislation that will
help parents limit the amount of television violence coming into their
homes. As my colleagues know well, Congress has been studying this
issue for 40 years and the issues have not changed. Recent press
reports continue to validate my concerns that all the talk and promises
have yielded nothing but the status quo, and efforts to encourage the
industry to police itself continue to yield meager results.
Enactment of the Telecommunications Act of 1996 marked the second
time Congress has passed legislation to encourage the entertainment
industry to limit the amount of violence seen on television. The first
time was the effort in the late 1980's led by our former colleague from
Illinois, Paul Simon. Senator Simon's approach, the Television Program
Improvement Act, was designed to grant the industry a 3-year antitrust
exemption to work together to adopt voluntary guidelines that would
lead to reducing violence depicted in television programs. The result
of this industry collaboration was announced in December 1992 with a
statement of joint standards regarding the broadcasting of excessive
television violence. In June 1993, the networks made a commitment that,
before and during the broadcasting of programs that might contain
excessive violence, the following announcement would be made: ``Due to
some violent content, parental discretion is advised.'' The Independent
Television Association, the trade group representing many of the
television stations not affiliated with one of the networks, adopted a
similar voluntary code. Subsequent studies detailed, however, that
despite these voluntary guidelines, violence continued to rise.
In 1993, therefore, I introduced my safe harbor bill for the first
time. The Commerce Committee held one hearing in the 103d Congress and
a second hearing during the 104th. The Commerce Committee reported my
bill, S. 470, by a vote of 16 to 1. The hearing record substantiates
the constitutionality of my safe harbor approach, with both Attorney
General Reno and Federal Communications Commission [FCC] Chairman Hundt
on record as testifying that the safe harbor approach is
constitutional. My efforts to bring my bill to the floor for a vote
were repeatedly blocked.
The second time, Congress legislated in this area was last year when
the so-called V-Chip provision was incorporated into the
Telecommunications Act of 1996. I voted for this provision but had my
doubts about its effectiveness. Once again, Congress relied on the
industry to help parents limit the amount of violence. To make the V-
chip work, the 1996 act encouraged the video programming industry to
``establish voluntary rules for rating video programming that contains
sexual, violent or other indecent material about which parents should
be informed before it is displayed to children,'' and to broadcast
voluntarily signals containing these ratings.
Pursuant to the 1996 act, all segments of the entertainment industry
created the TV ratings implementation group--ratings group, headed by
the Motion Picture Association of America [MPAA] president Jack
Valenti. The group devised an age-based ratings system--not a content-
based system. The proposal has been met with widespread criticism as
being too broad and vague for parents. I recommend that my colleagues
read this past Saturday's New York Times February 22, 1997, to
understand the confusion surrounding this issue. The age-based ratings
system does not give parents sufficient information. Parents want the
ability and the choice to block out specific content they find
unsuitable for their children.
So, here we are. Congress passes legislation designed to limit the
amount of television violence, again relying on the industry to act
responsibly. The voluntary ratings system proposed by the industry,
called the TV parental guidelines, consists of the following six age-
based ratings:

TV-Y

All Children. This program is designed to be appropriate for all
children. Whether animated or live action, the themes and elements in
this program are specifically designed for a very young audience,
including children from ages 2 through 6. This program is not expected
to frighten younger children.

TV-Y7

Directed to older children. This program is designed for children age
7 and above. It may be more appropriate for children who have acquired
the developmental skills needed to distinguish between make-believe and
reality. Themes and elements in this program may include mild physical
or comedic violence, and may frighten children under the age of 7.
Therefore, parents may wish to consider the suitability of this program
for their very young children.

TV-G

General Audience. Most parents would find this program suitable for
all ages. Although this rating does not signify a program designed
specifically for children, most parents may let younger children watch
this program unattended. It contains little or no violence, no strong
language and little or no sexual dialogue or situations.

TV-PG

Parental Guidance Suggested. This program may contain some material
that some parents would find unsuitable for younger children. Many
parents may want to watch it with their younger children. The theme
itself may

[[Page S1671]]

call for parental guidance. The program may contain infrequent coarse
language, limited violence, some suggestive sexual dialogue and
situations.

TV-14

Parents Strongly Cautioned. This program may contain some material
that many parents would find unsuitable for children under 14 years of
age. Parents are strongly urged to exercise greater care in monitoring
this program and are cautioned against letting children under the age
of 14 watch unattended. This program may contain sophisticated themes,
sexual content, strong language, and more intense violence.

TV-M

Mature Audience Only. This program is specially designed to be viewed
by adults and therefore may be unsuitable for children under 17. This
program may contain mature themes, profane language, graphic violence,
and explicit sexual content.
I ask my colleagues, how will parents be able to block out a specific
violent program based on this system?
There are several problems with this approach.
The 1996 Act envisioned that the ratings system, and consequently,
the encoded programming, would allow parents to block specific
programming content they found objectionable. Under the proposed age-
based ratings system, parents are unable to block specific violent
programming. The proposed age-based ratings place the entertainment
industry in the position of making the judgment about program
suitability--not the parent. Moreover, one of the biggest problems with
the proposed age-based ratings system is that it intermingles three
types of programming content: violence, sexual material, and adult
language. Thus it prevents parents from gaining any specific
information about whether or not a show actually contains any violent
depictions.
The National PTA, the American Medical Association [AMA], the
American Academy of Pediatrics [AAPA], the National Education
Association [NEA], Children Now, the American Psychological Association
[APA], the Coalition for America's Children, the Children's Defense
Fund, the American Academy of Child & Adolescent Psychiatry [AACAP],
the Family Research Council, the Foundation to Improve Television, and
the Center for Media Education all have criticized the age-based
ratings systems. Instead, they advocate ratings based on specific
program content. These groups have criticized the proposed age-based
ratings as too vague and broad for parents to decide what is right for
their child to watch in their own home. In addition, the groups state
that the ratings raise more questions than they answer.
The AACAP was particularly critical of the ratings system, stating
that:

Programs portraying graphic and realistically appearing
violence, sex, horror, adult language, and illegal behavior
without social consequences increase the risk of dangerous
behaviors and aberrant emotional and intellectual development
by children and adolescents. . . . An age-based system, such
as the one now being proposed, carries the risk of missing
significant developmental variations in young people.

The V-chip legislation was intended to empower parents with the
ability to block out objectionable content-specific programming. The
ratings system does not accomplish this objective. To correct this, I
have decided to reintroduce my safe harbor legislation with the
addition of a new provision. The new version requires confining the
distribution of violent programming to hours of the day when children
are not likely to comprise a substantial portion of the audience unless
the broadcasters adopt a content-specific ratings system that allows
parents to block out violent programming. If the industry continues to
insist upon the age-based ratings, then my safe harbor would apply for
violent programming. It's a very simple proposition. Either the intent
of the 1996 law is met and parents can block out objectionable content,
or my safe harbor will ensure that violent programming is aired at
hours later in the day to protect children from the harmful effects of
violent programming.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 363

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 ``Children's Protection from
Violent Programming Act''.

SEC. 2. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO PROGRAMMING.

Title VII of the Communications Act of 1934 (47 U.S.C. 701
et seq.) is amended by adding at the end the following:

``SEC. 718. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO
PROGRAMMING NOT SPECIFICALLY BLOCKABLE BY
ELECTRONIC MEANS.

``(a) Unlawful Distribution.--It shall be unlawful for any
person to distribute to the public any violent video
programming not blockable by electronic means specifically on
the basis of its violent content during hours when children
are reasonably likely to comprise a substantial portion of
the audience.
``(b) Rulemaking Proceeding.--The Commission shall conduct
a rulemaking proceeding to implement the provisions of this
section and shall promulgate final regulations pursuant to
that proceeding not later than 9 months after the date of
enactment of the Children's Protection from Violent
Programming Act. As part of that proceeding, the Commission--
``(1) may exempt from the prohibition under subsection (a)
programming (including news programs and sporting events)
whose distribution does not conflict with the objective of
protecting children from the negative influences of violent
video programming, as that objective is reflected in the
findings in section 551(a) of the Telecommunications Act of
1996;
``(2) shall exempt premium and pay-per-view cable
programming; and
``(3) shall define the term `hours when children are
reasonably likely to comprise a substantial portion of the
audience' and the term `violent video programming'.
``(c) Repeat Violations.--If a person repeatedly violates
this section or any regulation promulgated under this
section, the Commission shall, after notice and opportunity
for hearing, immediately revoke any license issued to that
person under this Act.
``(d) Consideration Of Violations In License Renewals.--The
Commission shall consider, among the elements in its review
of an application for renewal of a license under this Act,
whether the licensee has complied with this section and
the regulations promulgated under this section.
``(e) Definitions.--For purposes of this section--
``(1) Blockable by electronic means.--
The term `blockable by electronic means' means blockable by
the feature described in section 303(x).
``(2) Distribute.--The term `distribute' means to send,
transmit, retransmit, telecast, broadcast, or cablecast,
including by wire, microwave, or satellite.''.

SEC. 3. ASSESSMENT OF EFFECTIVENESS.

(a) Report.--The Federal Communications Commission shall--
(1) assess the effectiveness of measures undertaken under
section 718 of the Communications Act of 1934 (47 U.S.C. 718)
and under subsections (w) and (x) of section 303 of that Act
(47 U.S.C. 303(w) and (x)) in accomplishing the purposes for
which they were enacted; and
(2) report its findings to the Committee on Commerce,
Science, and Transportation of the United States and the
Committee on Commerce of the United States House of
Representatives, with 18 months after the date on which the
regulations promulgated under section 718 of the
Communications Act of 1934 (as added by section 2 of this
Act) take effect, and thereafter as part of the biennial
review of regulations required by section 11 of that Act (47
U.S.C. 161).
(b) Action.--If the Commission finds at any time, as a
result of its assessment under subsection (a), that the
measures referred to in subsection (a)(1) are insufficiently
effective, then the Commission shall initiate a rulemaking
proceeding to prohibit the distribution of violent video
programming during the hours when children are reasonably
likely to comprise a substantial portion of the audience.
(c) Definitions.--Any term used in this section that is
defined in section 718 of the Communications Act of 1934 (47
U.S.C. 718), or in regulations under that section, has the
same meaning as when used in that section or in those
regulations.

SEC. 4. SEPARABILITY.

If any provision of this Act, or any provision of an
amendment made by this Act, or the application thereof to
particular persons or circumstances, is found to be
unconstitutional, the remainder of this Act or that
amendment, or the application thereof to other persons or
circumstances shall not be affected.

SEC. 5. EFFECTIVE DATE.

The prohibition contained in section 718 of the
Communications Act of 1934 (as added by section 2 of this
Act) and the regulations promulgated thereunder shall take
effect 1 year after the regulations are adopted by the
Commission.
______

By Mr. LIEBERMAN (for himself, Mr. McCain, Mr. Lott, Mr.
Ashcroft, Mr. Gorton, Mrs. Feinstein, Mr. Gregg and Mr. Frist):

[[Page S1672]]

S. 364. A bill to provide legal standards and procedures for
suppliers of raw materials and component parts for medical devices; to
the Committee on Commerce, Science, and Transportation.

THE BIOMATERIALS ACCESS ASSURANCE ACT OF 1997

Mr. LIEBERMAN. Mr. President, I am introducing today, together with
Senator McCain and a number of other Senators from both sides of the
aisle, the Biomaterials Access Assurance Act of 1997. This bipartisan
bill responds to a looming crisis affecting more than 7 million
patients annually who rely on implantable life-saving or life-enhancing
medical devices such as pacemakers, heart valves, artificial blood
vessels, hydrocephalic shunts, and hip and knee joints. These patients
are at risk of losing access to the devices on which their lives and
well-being depend because, as a result of actual and potential
skyrocketing legal costs, the companies that supply the raw materials
without which those devices cannot be made are simply refusing to sell
their raw materials to device manufacturers. If we do not act soon,
makers of the life-saving medical devices that we take for granted
today may no longer able to buy the raw materials and components
necessary to produce their products, and the public health may be
seriously jeopardized. By taking the small step Senator McCain and I
propose today, millions of Americans will no longer have to worry about
losing access to the life-saving medical devices on which they depend.
The reason for this impending crisis is an all too common one: an
out-of-control product liability system. During hearings I held in
1994, as chairman of the Subcommittee on Regulation and Government
Information, and again during hearings held by the Commerce Committee
last Congress, we heard the same story from witness after witness. They
all explained that the current legal system makes it too easy to bring
lawsuits against raw materials suppliers and too expensive for those
suppliers to defend themselves--even when the suppliers are not at
fault and end up winning, as they virtually always do. According to one
study, only three out of hundreds of liability cases brought against a
raw material supplier led to a finding of wrongdoing against the
supplier. Nevertheless, in all of those cases, the suppliers had to
spend enormous amounts of money to defend themselves--often much more
than the supplier ever profited from its sale of the raw materials.
Many suppliers consequently have made the entirely rational decision
that the costs of defending these lawsuits are just too high to justify
selling raw materials to the makers of implantable medical devices. In
short, for those suppliers, it just isn't worth it.
How could this happen? A study by Aranoff Associates paints a clear,
but dismal, picture. That study surveyed the markets for polyester
yarn, resins such as DuPont's Teflon, and polyacetal resin such as
DuPont's Delrin. The study showed that sales of these raw materials for
use in manufacturing implantable medical devices was just a tiny
percentage of the overall market--$606,000 out of total sales of over
$11 billion, or just 0.006 percent. In return for that extra $606,000
in total annual sales, however, that raw material supplier, like
others, faced potentially huge liability related costs, even if they
never lost a lawsuit.
To take one example, a company named Vitek manufactured an estimated
26,000 jaw implants using about 5-cents worth of DuPont Teflon in each
device. The device was developed, designed, and marketed by Vitek,
which was not related to DuPont. When those implants failed, Vitek
declared bankruptcy, its founder fled to Switzerland, and the patients
sued DuPont. DuPont has won virtually all these cases, but the cost has
been staggering. The study estimated that DuPont spent at least $8
million per year over 6 years to defend these suits. To put this into
perspective, DuPont's estimated legal expenses in these cases for just
1 year would have bought over a 13-year supply of DuPont's Dacron
polyester, Teflon, and Delrin for all U.S. makers of implantable
medical devices, not just makers of jaw implants. Faced with this
overwhelming liability, DuPont decided to stop selling its products to
manufacturers of permanently implanted medical devices.
One supplier's decision alone might not be troublesome, but it is not
just one supplier that has reached that decision. When I rose during
the debate over the product liability bill last year, I put in the
record the names of twelve suppliers who had withdrawn from the
biomaterials market. Since then, I have learned that at least two more
suppliers have done the same. There is no reason to believe that the
economics will be different for other suppliers around the world. One
of the witnesses at our 1994 hearing testified that she contacted 15
alternate suppliers of polyester yarn worldwide. All were interested in
selling her raw materials--except for use in products made and used in
the United States. By itself, this is a powerful statement about the
nature of our American product liability laws, and it makes a powerful
case for reform.
What's at stake here, let me be clear, is not protecting suppliers
from liability and not even just making raw materials available to the
manufacturers of medical devices. What's at stake is the health of
millions of Americans who depend on medical devices for their everyday
survival. What's at stake is the health of children like Thomas Reilly
from Houston, TX, who suffers from hydrocephalus, a condition in which
fluid accumulates around the brain. A special shunt enables him to
survive. But continued production of that shunt is in doubt because the
raw materials' suppliers are concerned about the potential lawsuit
costs. At our hearing in 1994, Thomas' father, Mark Reilly, pleaded for
Congress to move forward quickly to assure that the supply of those
shunts will continue.
What's at stake is the health of adults like Peggy Phillips of Falls
Church, VA, whose heart had twice stopped beating because of
fibrillation. Today, she lives an active, normal life because she has
an implanted automatic defibrillator. Again, critical components of the
defibrillator may no longer be available because of potential product
liability costs. Ms. Phillips urged Congress to move swiftly to enact
legislation protecting raw materials and component part suppliers from
product liability.
The scope of this problem affects young and old alike. Take a
pacemaker. Pacemakers are installed in patients whose hearts no longer
generate enough of an electrical pulse to get the heart to beat. To
keep the heart beating, a pacemaker is connected to the heart with
wires. These wires have silicone rubber insulation. Unfortunately, the
suppliers of the rubber have begun to withdraw from the market. With
this pacemaker, thousands of Americans can live productive and healthy
lives for decades.

Take another example, a heart valve. Around the edge of a heart valve
is a sleeve of polyester fabric. This fabric is what the surgeon sews
through when he or she installs this valve. Without that sleeve, it
would be difficult, if not impossible, to install the valve. Without
that valve, patients die prematurely.
In short, this developing product liability crisis will have
widespread and serious effects. We cannot simply allow the over 7
million people who owe their health to medical devices to become
casualties of an outmoded legal liability system. Because product
liability litigation costs make the economics of supplying raw
materials to the implantable medical device makers very unfavorable, it
is imperative that we act now. We cannot rationally expect raw
materials suppliers to continue to serve the medical device market out
of the goodness of their hearts, notwithstanding the liability related
costs. We need to reform our product liability laws, to give raw
material suppliers some assurance that unless there is real evidence
that they were responsible for putting a defective device on the
market, they cannot be sued simply in the hope that their deep pockets
will fund legal settlements.
I have long believed that liability reform could be both proconsumer
and probusiness. I believe the testimony we heard on this subject
during the past two Congresses proved this once again. When fear of
liability suits and litigation costs drives valuable, lifesaving
products off the market because their makers cannot get raw materials,
consumers are the ones to suffer. When

[[Page S1673]]

companies divert money from developing new lifesaving products to
replace old sources of raw materials supplies, consumers are again the
ones to suffer. When one company must spend millions just to defend
itself in lawsuits over a product it did not even design or make--for
which it simply provided a raw material worth 5 cents--it is the
consumer that suffers the most.
Based on the testimony we heard in 1994, I, along with my
distinguished colleague from Arizona, committed to forging a solution
to remedy this immediate threat to our national public health. That
year, and again in the 104th Congress, we introduced the Biomaterials
Access Assurance Act, which we reintroduce again today. This bill will
establish clear national rules to govern suits against suppliers of raw
materials and component parts for permanently implantable medical
devices. Under this bill, a supplier of raw materials or component
parts could be sued only if the materials they supplied do not meet
contractual specifications, or if they properly can be classified as a
manufacturer or seller of the whole product. They could not, however,
be sued for deficiencies in the design of the final device, the testing
of that device, or for inadequate warnings with respect to that device.

Our colleagues recognized the need for that bill last year, and so
passed it as part of the 104th Congress' product liability reform bill.
Unfortunately, President Clinton vetoed that bill, but in his message
to Congress, he made clear that he viewed the biomaterials provision
portion of it as, in his words, ``a laudable attempt to ensure the
supply of materials needed to make life-saving medical devices.'' We
hope that he continues to see the provision in that light.
I believe that enactment of this bill would help ensure that
America's patients continue to have access to the best lifesaving
medical devices in the world. We must act now, however. This piece of
legislation is preventative medicine at its best and is just the cure
the patients need.
I ask unanimous consent that a copy of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 364

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Biomaterials Access
Assurance Act of 1997''.

SEC. 2. FINDINGS.

Congress finds that--
(1) each year millions of citizens of the United States
depend on the availability of lifesaving or life enhancing
medical devices, many of which are permanently implantable
within the human body;
(2) a continued supply of raw materials and component parts
is necessary for the invention, development, improvement, and
maintenance of the supply of the devices;
(3) most of the medical devices are made with raw materials
and component parts that--
(A) are not designed or manufactured specifically for use
in medical devices; and
(B) come in contact with internal human tissue;
(4) the raw materials and component parts also are used in
a variety of nonmedical products;
(5) because small quantities of the raw materials and
component parts are used for medical devices, sales of raw
materials and component parts for medical devices constitute
an extremely small portion of the overall market for the raw
materials and medical devices;
(6) under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 301 et seq.), manufacturers of medical devices are
required to demonstrate that the medical devices are safe and
effective, including demonstrating that the products are
properly designed and have adequate warnings or instructions;
(7) notwithstanding the fact that raw materials and
component parts suppliers do not design, produce, or test a
final medical device, the suppliers have been the subject of
actions alleging inadequate--
(A) design and testing of medical devices manufactured with
materials or parts supplied by the suppliers; or
(B) warnings related to the use of such medical devices;
(8) even though suppliers of raw materials and component
parts have very rarely been held liable in such actions, such
suppliers have ceased supplying certain raw materials and
component parts for use in medical devices because the costs
associated with litigation in order to ensure a favorable
judgment for the suppliers far exceeds the total potential
sales revenues from sales by such suppliers to the medical
device industry;
(9) unless alternate sources of supply can be found, the
unavailability of raw materials and component parts for
medical devices will lead to unavailability of lifesaving and
life-enhancing medical devices;
(10) because other suppliers of the raw materials and
component parts in foreign nations are refusing to sell raw
materials or component parts for use in manufacturing certain
medical devices in the United States, the prospects for
development of new sources of supply for the full range of
threatened raw materials and component parts for medical
devices are remote;
(11) it is unlikely that the small market for such raw
materials and component parts in the United States could
support the large investment needed to develop new suppliers
of such raw materials and component parts;
(12) attempts to develop such new suppliers would raise the
cost of medical devices;
(13) courts that have considered the duties of the
suppliers of the raw materials and component parts have
generally found that the suppliers do not have a duty--
(A) to evaluate the safety and efficacy of the use of a raw
material or component part in a medical device; and
(B) to warn consumers concerning the safety and
effectiveness of a medical device;
(14) attempts to impose the duties referred to in
subparagraphs (A) and (B) of paragraph (13) on suppliers of
the raw materials and component parts would cause more harm
than good by driving the suppliers to cease supplying
manufacturers of medical devices; and
(15) in order to safeguard the availability of a wide
variety of lifesaving and life-enhancing medical devices,
immediate action is needed--
(A) to clarify the permissible bases of liability for
suppliers of raw materials and component parts for medical
devices; and
(B) to provide expeditious procedures to dispose of
unwarranted suits against the suppliers in such manner as to
minimize litigation costs.

SEC. 3. DEFINITIONS.

As used in this Act:
(1) Biomaterials supplier.--
(A) In general.--The term ``biomaterials supplier'' means
an entity that directly or indirectly supplies a component
part or raw material for use in the manufacture of an
implant.
(B) Persons included.--Such term includes any person who--
(i) has submitted master files to the Secretary for
purposes of premarket approval of a medical device; or
(ii) licenses a biomaterials supplier to produce component
parts or raw materials.
(2) Claimant.--
(A) In general.--The term ``claimant'' means any person who
brings a civil action, or on whose behalf a civil action is
brought, arising from harm allegedly caused directly or
indirectly by an implant, including a person other than the
individual into whose body, or in contact with whose blood or
tissue, the implant is placed, who claims to have suffered
harm as a result of the implant.
(B) Action brought on behalf of an estate.--With respect to
an action brought on behalf of or through the estate of an
individual into whose body, or in contact with whose blood or
tissue the implant is placed, such term includes the decedent
that is the subject of the action.
(C) Action brought on behalf of a minor or incompetent.--
With respect to an action brought on behalf of or through a
minor or incompetent, such term includes the parent or
guardian of the minor or incompetent.
(D) Exclusions.--Such term does not include--
(i) a provider of professional health care services, in any
case in which--

(I) the sale or use of an implant is incidental to the
transaction; and
(II) the essence of the transaction is the furnishing of
judgment, skill, or services;

(ii) a person acting in the capacity of a manufacturer,
seller, or biomaterials supplier; or
(iii) a person alleging harm caused by either the silicone
gel or the silicone envelope utilized in a breast implant
containing silicone gel, except that--

(I) neither the exclusion provided by this clause nor any
other provision of this Act may be construed as a finding
that silicone gel (or any other form of silicone) may or may
not cause harm; and
(II) the existence of the exclusion under this clause may
not--

(aa) be disclosed to a jury in any civil action or other
proceeding; and
(bb) except as necessary to establish the applicability of
this Act, otherwise be presented in any civil action or other
proceeding.
(3) Component part.--
(A) In general.--The term ``component part'' means a
manufactured piece of an implant.
(B) Certain components.--Such term includes a manufactured
piece of an implant that--
(i) has significant non-implant applications; and
(ii) alone, has no implant value or purpose, but when
combined with other component parts and materials,
constitutes an implant.
(4) Harm.--
(A) In general.--The term ``harm'' means--
(i) any injury to or damage suffered by an individual;
(ii) any illness, disease, or death of that individual
resulting from that injury or damage; and

[[Page S1674]]

(iii) any loss to that individual or any other individual
resulting from that injury or damage.
(B) Exclusion.--The term does not include any commercial
loss or loss of or damage to an implant.
(5) Implant.--The term ``implant'' means--
(A) a medical device that is intended by the manufacturer
of the device--
(i) to be placed into a surgically or naturally formed or
existing cavity of the body for a period of at least 30 days;
or
(ii) to remain in contact with bodily fluids or internal
human tissue through a surgically produced opening for a
period of less than 30 days; and
(B) suture materials used in implant procedures.
(6) Manufacturer.--The term ``manufacturer'' means any
person who, with respect to an implant--
(A) is engaged in the manufacture, preparation,
propagation, compounding, or processing (as defined in
section 510(a)(1)) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360(a)(1)) of the implant; and
(B) is required--
(i) to register with the Secretary pursuant to section 510
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360)
and the regulations issued under such section; and
(ii) to include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section.
(7) Medical device.--The term ``medical device'' means a
device, as defined in section 201(h) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(h)) and includes any
device component of any combination product as that term is
used in section 503(g) of such Act (21 U.S.C. 353(g)).
(8) Raw material.--The term ``raw material'' means a
substance or product that--
(A) has a generic use; and
(B) may be used in an application other than an implant.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(10) Seller.--
(A) In general.--The term ``seller'' means a person who, in
the course of a business conducted for that purpose, sells,
distributes, leases, packages, labels, or otherwise places an
implant in the stream of commerce.
(B) Exclusions.--The term does not include--
(i) a seller or lessor of real property;
(ii) a provider of professional services, in any case in
which the sale or use of an implant is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who acts in only a financial capacity with
respect to the sale of an implant.

SEC. 4. GENERAL REQUIREMENTS; APPLICABILITY; PREEMPTION.

(a) General Requirements.--
(1) In general.--In any civil action covered by this Act, a
biomaterials supplier may raise any defense set forth in
section 5.
(2) Procedures.--Notwithstanding any other provision of
law, the Federal or State court in which a civil action
covered by this Act is pending shall, in connection with a
motion for dismissal or judgment based on a defense described
in paragraph (1), use the procedures set forth in section 6.
(b) Applicability.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding any other provision of law, this Act applies
to any civil action brought by a claimant, whether in a
Federal or State court, against a manufacturer, seller, or
biomaterials supplier, on the basis of any legal theory, for
harm allegedly caused by an implant.
(2) Exclusion.--A civil action brought by a purchaser of a
medical device for use in providing professional services
against a manufacturer, seller, or biomaterials supplier for
loss or damage to an implant or for commercial loss to the
purchaser--
(A) shall not be considered an action that is subject to
this Act; and
(B) shall be governed by applicable commercial or contract
law.
(c) Scope of Preemption.--
(1) In general.--This Act supersedes any State law
regarding recovery for harm caused by an implant and any rule
of procedure applicable to a civil action to recover damages
for such harm only to the extent that this Act establishes a
rule of law applicable to the recovery of such damages.
(2) Applicability of other laws.--Any issue that arises
under this Act and that is not governed by a rule of law
applicable to the recovery of damages described in paragraph
(1) shall be governed by applicable Federal or State law.
(d) Statutory Construction.--Nothing in this Act may be
construed--
(1) to affect any defense available to a defendant under
any other provisions of Federal or State law in an action
alleging harm caused by an implant; or
(2) to create a cause of action or Federal court
jurisdiction pursuant to section 1331 or 1337 of title 28,
United States Code, that otherwise would not exist under
applicable Federal or State law.

SEC. 5. LIABILITY OF BIOMATERIALS SUPPLIERS.

(a) In General.--
(1) Exclusion from liability.--Except as provided in
paragraph (2), a biomaterials supplier shall not be liable
for harm to a claimant caused by an implant.
(2) Liability.--A biomaterials supplier that--
(A) is a manufacturer may be liable for harm to a claimant
described in subsection (b);
(B) is a seller may be liable for harm to a claimant
described in subsection (c); and
(C) furnishes raw materials or component parts that fail to
meet applicable contractual requirements or specifications
may be liable for a harm to a claimant described in
subsection (d).
(b) Liability as Manufacturer.--
(1) In general.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant if the
biomaterials supplier is the manufacturer of the implant.
(2) Grounds for liability.--The biomaterials supplier may
be considered the manufacturer of the implant that allegedly
caused harm to a claimant only if the biomaterials supplier--
(A)(i) has registered with the Secretary pursuant to
section 510 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360) and the regulations issued under such section;
and
(ii) included the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section;
(B) is the subject of a declaration issued by the Secretary
pursuant to paragraph (3) that states that the supplier, with
respect to the implant that allegedly caused harm to the
claimant, was required to--
(i) register with the Secretary under section 510 of such
Act (21 U.S.C. 360), and the regulations issued under such
section, but failed to do so; or
(ii) include the implant on a list of devices filed with
the Secretary pursuant to section 510(j) of such Act (21
U.S.C. 360(j)) and the regulations issued under such section,
but failed to do so; or
(C) is related by common ownership or control to a person
meeting all the requirements described in subparagraph (A) or
(B), if the court deciding a motion to dismiss in accordance
with section 6(c)(3)(B)(i) finds, on the basis of affidavits
submitted in accordance with section 6, that it is necessary
to impose liability on the biomaterials supplier as a
manufacturer because the related manufacturer meeting the
requirements of subparagraph (A) or (B) lacks sufficient
financial resources to satisfy any judgment that the court
feels it is likely to enter should the claimant prevail.
(3) Administrative procedures.--
(A) In general.--The Secretary may issue a declaration
described in paragraph (2)(B) on the motion of the Secretary
or on petition by any person, after providing--
(i) notice to the affected persons; and
(ii) an opportunity for an informal hearing.
(B) Docketing and final decision.--Immediately upon receipt
of a petition filed pursuant to this paragraph, the Secretary
shall docket the petition. Not later than 180 days after the
petition is filed, the Secretary shall issue a final decision
on the petition.
(C) Applicability of statute of limitations.--Any
applicable statute of limitations shall toll during the
period during which a claimant has filed a petition with the
Secretary under this paragraph.
(c) Liability as Seller.--A biomaterials supplier may, to
the extent required and permitted by any other applicable
law, be liable as a seller for harm to a claimant caused by
an implant if--
(1) the biomaterials supplier--
(A) held title to the implant that allegedly caused harm to
the claimant as a result of purchasing the implant after--
(i) the manufacture of the implant; and
(ii) the entrance of the implant in the stream of commerce;
and
(B) subsequently resold the implant; or
(2) the biomaterials supplier is related by common
ownership or control to a person meeting all the requirements
described in paragraph (1), if a court deciding a motion to
dismiss in accordance with section 6(c)(3)(B)(ii) finds, on
the basis of affidavits submitted in accordance with section
6, that it is necessary to impose liability on the
biomaterials supplier as a seller because the related seller
meeting the requirements of paragraph (1) lacks sufficient
financial resources to satisfy any judgment that the court
feels it is likely to enter should the claimant prevail.
(d) Liability for Violating Contractual Requirements or
Specifications.--A biomaterials supplier may, to the extent
required and permitted by any other applicable law, be liable
for harm to a claimant caused by an implant, if the claimant
in an action shows, by a preponderance of the evidence,
that--
(1) the raw materials or component parts delivered by the
biomaterials supplier either--
(A) did not constitute the product described in the
contract between the biomaterials supplier and the person who
contracted for delivery of the product; or
(B) failed to meet any specifications that were--
(i) provided to the biomaterials supplier and not expressly
repudiated by the biomaterials supplier prior to acceptance
of delivery of the raw materials or component parts;
(ii)(I) published by the biomaterials supplier;
(II) provided to the manufacturer by the biomaterials
supplier; or

[[Page S1675]]

(III) contained in a master file that was submitted by the
biomaterials supplier to the Secretary and that is currently
maintained by the biomaterials supplier for purposes of
premarket approval of medical devices; or
(iii) included in the submissions for purposes of premarket
approval or review by the Secretary under section 510, 513,
515, or 520 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360, 360c, 360e, or 360j), and received clearance from
the Secretary if such specifications were provided by the
manufacturer to the biomaterials supplier and were not
expressly repudiated by the biomaterials supplier prior to
the acceptance by the manufacturer of delivery of the raw
materials or component parts; and
(2) such conduct was an actual and proximate cause of the
harm to the claimant.

SEC. 6. PROCEDURES FOR DISMISSAL OF CIVIL ACTIONS AGAINST
BIOMATERIALS SUPPLIERS.

(a) Motion To Dismiss.--In any action that is subject to
this Act, a biomaterials supplier who is a defendant in such
action may, at any time during which a motion to dismiss may
be filed under an applicable law, move to dismiss the action
against it on the grounds that--
(1) the defendant is a biomaterials supplier; and
(2)(A) the defendant should not, for the purposes of--
(i) section 5(b), be considered to be a manufacturer of the
implant that is subject to such section; or
(ii) section 5(c), be considered to be a seller of the
implant that allegedly caused harm to the claimant; or
(B)(i) the claimant has failed to establish, pursuant to
section 5(d), that the supplier furnished raw materials or
component parts in violation of contractual requirements or
specifications; or
(ii) the claimant has failed to comply with the procedural
requirements of subsection (b).
(b) Manufacturer of Implant Shall Be Named a Party.--The
claimant shall be required to name the manufacturer of the
implant as a party to the action, unless--
(1) the manufacturer is subject to service of process
solely in a jurisdiction in which the biomaterials supplier
is not domiciled or subject to a service of process; or
(2) an action against the manufacturer is barred by
applicable law.
(c) Proceeding on Motion To Dismiss.--The following rules
shall apply to any proceeding on a motion to dismiss filed
under this section:
(1) Affidavits relating to listing and declarations.--
(A) In general.--The defendant in the action may submit an
affidavit demonstrating that defendant has not included the
implant on a list, if any, filed with the Secretary pursuant
to section 510(j) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360(j)).
(B) Response to motion to dismiss.--In response to the
motion to dismiss, the claimant may submit an affidavit
demonstrating that--
(i) the Secretary has, with respect to the defendant and
the implant that allegedly caused harm to the claimant,
issued a declaration pursuant to section 5(b)(2)(B); or
(ii) the defendant who filed the motion to dismiss is a
seller of the implant who is liable under section 5(c).
(2) Effect of motion to dismiss on discovery.--
(A) In general.--If a defendant files a motion to dismiss
under paragraph (1) or (2) of subsection (a), no discovery
shall be permitted in connection to the action that is the
subject of the motion, other than discovery necessary to
determine a motion to dismiss for lack of jurisdiction, until
such time as the court rules on the motion to dismiss in
accordance with the affidavits submitted by the parties in
accordance with this section.
(B) Discovery.--If a defendant files a motion to dismiss
under subsection (a)(2)(B)(i) on the grounds that the
biomaterials supplier did not furnish raw materials or
component parts in violation of contractual requirements or
specifications, the court may permit discovery, as ordered by
the court. The discovery conducted pursuant to this
subparagraph shall be limited to issues that are directly
relevant to--
(i) the pending motion to dismiss; or
(ii) the jurisdiction of the court.
(3) Affidavits relating status of defendant.--
(A) In general.--Except as provided in clauses (i) and (ii)
of subparagraph (B), the court shall consider a defendant to
be a biomaterials supplier who is not subject to an action
for harm to a claimant caused by an implant, other than an
action relating to liability for a violation of contractual
requirements or specifications described in subsection (d).
(B) Responses to motion to dismiss.--The court shall grant
a motion to dismiss any action that asserts liability of the
defendant under subsection (b) or (c) of section 5 on the
grounds that the defendant is not a manufacturer subject to
such section 5(b) or seller subject to section 5(c), unless
the claimant submits a valid affidavit that demonstrates
that--
(i) with respect to a motion to dismiss contending the
defendant is not a manufacturer, the defendant meets the
applicable requirements for liability as a manufacturer under
section 5(b); or
(ii) with respect to a motion to dismiss contending that
the defendant is not a seller, the defendant meets the
applicable requirements for liability as a seller under
section 5(c).
(4) Basis of ruling on motion to dismiss.--
(A) In general.--The court shall rule on a motion to
dismiss filed under subsection (a) solely on the basis of the
pleadings of the parties made pursuant to this section and
any affidavits submitted by the parties pursuant to this
section.
(B) Motion for summary judgment.--Notwithstanding any other
provision of law, if the court determines that the pleadings
and affidavits made by parties pursuant to this section raise
genuine issues as concerning material facts with respect to a
motion concerning contractual requirements and
specifications, the court may deem the motion to dismiss to
be a motion for summary judgment made pursuant to subsection
(d).
(d) Summary Judgment.--
(1) In general.--
(A) Basis for entry of judgment.--A biomaterials supplier
shall be entitled to entry of judgment without trial if the
court finds there is no genuine issue as concerning any
material fact for each applicable element set forth in
paragraphs (1) and (2) of section 5(d).
(B) Issues of material fact.--With respect to a finding
made under subparagraph (A), the court shall consider a
genuine issue of material fact to exist only if the evidence
submitted by claimant would be sufficient to allow a
reasonable jury to reach a verdict for the claimant if the
jury found the evidence to be credible.
(2) Discovery made prior to a ruling on a motion for
summary judgment.--If, under applicable rules, the court
permits discovery prior to a ruling on a motion for summary
judgment made pursuant to this subsection, such discovery
shall be limited solely to establishing whether a genuine
issue of material fact exists as to the applicable elements
set forth in paragraphs (1) and (2) of section 5(d).
(3) Discovery with respect to a biomaterials supplier.--A
biomaterials supplier shall be subject to discovery in
connection with a motion seeking dismissal or summary
judgment on the basis of the inapplicability of section 5(d)
or the failure to establish the applicable elements of
section 5(d) solely to the extent permitted by the applicable
Federal or State rules for discovery against nonparties.
(e) Stay Pending Petition for Declaration.--If a claimant
has filed a petition for a declaration pursuant to section
5(b)(3)(A) with respect to a defendant, and the Secretary has
not issued a final decision on the petition, the court shall
stay all proceedings with respect to that defendant until
such time as the Secretary has issued a final decision on the
petition.
(f) Manufacturer Conduct of Proceeding.--The manufacturer
of an implant that is the subject of an action covered under
this Act shall be permitted to file and conduct a proceeding
on any motion for summary judgment or dismissal filed by a
biomaterials supplier who is a defendant under this section
if the manufacturer and any other defendant in such action
enter into a valid and applicable contractual agreement under
which the manufacturer agrees to bear the cost of such
proceeding or to conduct such proceeding.
(g) Attorney Fees.--The court shall require the claimant to
compensate the biomaterials supplier (or a manufacturer
appearing in lieu of a supplier pursuant to subsection (f))
for attorney fees and costs, if--
(1) the claimant named or joined the biomaterials supplier;
and
(2) the court found the claim against the biomaterials
supplier to be without merit and frivolous.

SEC. 7. APPLICABILITY.

This Act shall apply to all civil actions covered under
this Act that are commenced on or after the date of enactment
of this Act, including any such action with respect to which
the harm asserted in the action or the conduct that caused
the harm occurred before the date of enactment of this Act.

Mr. McCAIN. Mr. President, Senator Lieberman and I are here to
announce the introduction of bipartisan legislation to address a health
care crisis facing over 7 million Americans who each year receive life-
saving or life-enhancing medical implants. The availability of these
implants is jeopardized because the suppliers of raw materials used in
the implants can no longer afford to expose themselves to the
ridiculous and unjust litigation costs that can result from doing
business with implant makers.
The problem is that, in the quest for a deep pocket, biomaterials
suppliers are roped into product liability lawsuits concerning the
implant even though those suppliers are not involved in the design,
sale or manufacture of the implant. Biomaterials suppliers just provide
raw materials used in the production of vital medical devices such as
brain shunts, pacemakers, and artificial joints.
In virtually every case, biomaterials suppliers are not found liable
in these lawsuits. Unfortunately, the massive cost of defending these
lawsuits often overwhelms the relatively small

[[Page S1676]]

amount of revenue biomaterials suppliers receive through the sale of
their product to implant makers. As one might expect, biomaterials
suppliers are deciding they cannot risk financial ruin to supply
biomaterials.
This bill, the Biomaterials Access Assurance Act of 1997, shields
biomaterials suppliers from the crushing costs of unwarranted
litigation. The bill simply permits suppliers of biomaterials to be
quickly dismissed from a lawsuit if they did not manufacture or sell
the implant and if they met the contract specifications for the
biomaterial. This bill will not prohibit someone who has been injured
from filing a lawsuit and recovering damages.
This legislation is critically important to saving lives. In 1995,
Tara Ransom, a young girl from Arizona, wrote me a letter indicating
her concern that she would die because a new brain shunt would not be
available for her. Tara has a life-threatening condition called
hydrocephalus where excess fluid builds up on the brain. Without a
silicone-based brain shunt to drain the fluid build-up, the pressure
would likely kill Tara.
The supplier of the silicone for Tara's brain shunt has indicated
they must withdraw from the biomaterials market due to the risk of
unwarranted litigation. Thirteen other companies have also indicated
they will no longer supply biomaterials due to concerns about
unwarranted litigation.
We cannot let this insanity continue. Lives are at stake, and we have
a moral duty to Tara and the thousands of others whose lives are at
stake to pass this litigation.
Mr. LOTT. Mr. President, I am pleased today to join with my
colleagues, Senator McCain and Senator Lieberman, in supporting
biomaterials access assurance legislation to confront a looming health
care crisis in our country.
This legislation is of vital importance to the 8 million Americans
who require life-saving and life-enhancing implantable medical devices.
Most of us have a family member or friend who has benefitted from these
wondrous products. The availability of the biomaterials necessary for
medical device production is critical to the health of millions of
Americans. The ramifications of unavailability are severe and, in the
end, it is those in need of the devices who will suffer the most.
This bill helps to curtail the impending health crisis by encouraging
suppliers of raw materials and component parts to re-enter the medical
implant market. Under the bill's provisions, a supplier of raw
materials and/or component parts cannot be sued for design or
manufacturing deficiencies of the final product unless the supplier can
properly be classified as the designer, manufacturer or seller of the
product as a whole.
In recent years, and due in no small part to the prospect of
derivative participation in broad-based lawsuits, major biomaterial
suppliers have expressed their intent to limit or cease their shipments
to manufacturers in the medical implant device market. Often, such a
supplier has minimal or no knowledge or control of the design,
manufacture or sale of an implant device. Nonetheless, under current
product liability law, such a supplier can be named as a defendant in a
product liability lawsuit based on the design, manufacture and sale of
the device itself. And, although suppliers have been found not liable
in the overwhelming number of such lawsuits, they must give great
consideration to potential damage verdicts and the oppressive financial
burden of lawsuit defense costs before deciding to supply manufacturers
with raw materials and component parts.

The detrimental effects of the biomaterials shortage are beginning to
take their toll.
Although the United States has been a leader in the medical implant
field, that may change as our ability to focus on new technologies and
to contribute funds to research and development is impaired by the
diversion of available resources now directed to the search for and
qualification of alternative biomaterials suppliers.
As medical device manufacturers find it increasingly difficult to
obtain needed raw materials and component parts, the industry's
research and development resources, otherwise devoted to improving
existing health care technologies, are drained and redirected to ensure
material availability to meet current production demand. In some
instances, no alternative sources for materials are found to exist.
Just as many suppliers cannot afford the risk of liability suits,
many manufacturers cannot afford the terms of indemnification contracts
required by suppliers. Consider the case of Baxter Healthcare Corp.,
which operates a manufacturing plant in Cleveland, MS, employing
approximately 1,000 people. A major manufacturer of life-saving and
life-enhancing implantable medical devices such as heart valves, sewing
rings, and left ventricular assist devices, Baxter is highly dependent
upon medical-grade biomaterials for production.
In facing a future based upon operation within this shortage
scenario, Baxter is now diverting millions of dollars from research and
development to fund its quest for finding alternative materials. Like
manufacturers in other parts of the country, Baxter is dealing with
suppliers that are faced with product liability risks that far exceed
the benefit gained in dealing with a medical device manufacturer.
For example, Baxter needed to purchase resin--less than 10 pounds a
year--with a cost on the open market of less than $3 per pound. The
supplier required an iron-clad indemnification contract before the
materials could be sold to Baxter, and also demanded an annual fee of
nearly $100,000 over and above normal material costs for continued use
of the material--in other words, a surcharge for the risk associated
with potential liability.
This drain on manufacturers, as well as the uncertainty of obtaining
any materials for the manufacture of their products, is directly
attributable to the biomaterials shortage.
Mr. President, the stability of the manufacturing process is in
constant peril, and patients' lives hang in the balance. Let's act to
limit liability to instances of genuine fault, and not encourage more
frivolous lawsuits where they are, in fact, so often detrimental to
consumer interests.
It is my hope that the Senate will recognize the seriousness of the
biomaterials shortage and that we will support this effort to encourage
suppliers to re-enter the medical device market and to ensure that
patients have available these critical, often life-saving options.
Thank you, Mr. President, for the opportunity to articulate the
urgency and criticality of this legislation.
______

By Mr. COVERDELL:
S. 365. A bill to amend the Internal Revenue Code of 1986 to provide
for increased accountability by Internal Revenue Service agents and
other Federal Government officials in tax collection practices and
procedures, and for other purposes; to the Committee on Finance.
______

By Mr. COVERDELL (for himself, Mrs. Hutchison, Mr. McCain, Mr.
Faircloth, Mr. Kyl, Mr. Thomas, and Mr. Inhofe):
S. 366. A bill to amend the Congressional Budget and Impoundment
Control Act of 1974 to prohibit the consideration of retroactive tax
increases; to the Committee on the Budget and the Committee on
Governmental Affairs, jointly, pursuant to the order of August 4, 1977,
that if one Committee reports, the other Committee have 30 days to
report or be discharged.
______

By Mr. COVERDELL (for himself, Mr. Abraham, Mrs. Hutchison, Mr.
McCain, Mr. Kyl, Mr. Faircloth, and Mr. Inhofe):
S.J. Res. 17. A joint resolution proposing an amendment to the
Constitution of the United States to prohibit retroactive increases in
taxes; to the Committee on the Judiciary.

TAX REFORM LEGISLATION

Mr. COVERDELL. Mr. President, today I rise to offer a tax reform
package to provide greater tax fairness and to protect citizens from
Internal Revenue Service--IRS--abuses. This package includes three
initiatives: a constitutional amendment called the retroactive tax ban
amendment, a bill to establish a new budget point of order against
retroactive taxation, and the Internal Revenue Service Accountability
Act.
The first, the retroactive tax ban amendment, is a constitutional
amendment to prevent the Federal Government from imposing any tax
increase

[[Page S1677]]

retroactively. The amendment states simply ``No Federal tax shall be
imposed for the period before the date of enactment.'' We have heard
directly from the taxpayers, and looking backward for extra taxes is
unacceptable. It is not a fair way to deal with taxpayers.
In addition, I am introducing a bill that would create a point of
order under the Budget Act against retroactive tax increases. Because
amending the Constitution can be a very long prospect--just look at the
decades-long effort on behalf of the balanced budget amendment--I
believe this legislation is necessary to provide needed protection for
American families from the destabilizing effects of retroactive
taxation.
It was clear to Thomas Jefferson that the only way to preserve
freedom was to protect its citizens from oppressive taxation. Even the
Russian Constitution does not allow you to tax retroactively.
Retroactive taxation is wrong, and it is morally incorrect.
Families and businesses and communities must know what the rules of
the road are and that those rules will not change. They have to be able
to plan their lives, plan their families, and plan their tax burdens in
advance. They cannot come to the end of a year and have a Congress of
the United States and a President come forward and say, ``All your
planning was for naught, and we don't care.''
Mr. President, my third proposal is the Internal Revenue Service
Accountability Act. It is wide-ranging and deals with a number of
faults within the IRS that I have become aware through my constituent
services work and through discussions with everyday Americans. Whenever
I travel through my State, or across the Nation for that matter,
concerns inevitably are raised about the IRS. This agency seems to
believe the vast majority of American taxpayers are looking to cheat
the Government. Instead, I believe American taxpayers are honest and
hardworking, and they deserve to be treated accordingly.
Our Nation suffers under an unfair and incomprehensible tax code that
takes far too much of what we earn. Even worse, the organization
responsible for enforcement of the tax code--the IRS--often seeks to
intimidate and frighten honest citizens. We cannot tolerate a Tax Code
that punishes families, and we cannot tolerate an IRS eager to bully
and harass taxpayers.

Let me briefly outline my proposal. First, the IRS Accountability Act
would make agents of the IRS responsible for their actions. My
legislation would make it a crime for an agent to use extortion-like
tactics when collecting a tax. Agents must know there are real
consequences for their actions. When they abuse their authority by
maliciously and willfully disregarding the statutory procedures
established for collecting taxes from honest taxpayers, they must be
held accountable.
In addition, this legislation would lift the current shield
protecting IRS agents from holding any personal liability for their
actions in the course of collecting a tax. I was surprised to learn
that this shield remains in place even when their abusive actions
result in judgments against the United States for hundreds of thousands
of dollars. How ironic that American taxpayers end up footing the bill
for the abuses they suffer. My legislation would end this intolerable
arrangement.
My legislation also protects the privacy of taxpayers. A few years
back, I was shocked to learn that nearly 370 employees of the Atlanta
IRS office were caught accessing the tax returns and return information
of friends, neighbors, and celebrities without proper authorization.
They were file snooping. The IRS Accountability Act would make this
activity a crime and allows the offender to be held personally liable.
Further, my legislation requires notification of any taxpayer who
suffers this abuse. Unfortunately, what should seem to be a simple
matter of decency must be required of the IRS. In response to
suggestions taxpayers be notified when their privacy has been invaded
by file snoopers, IRS Commissioner Margaret Richardson stated, ``I'm
not sure there would be serious value to that in terms of protecting
the taxpayers' rights.'' With all respect, such sentiment is typical of
a Washington status quo mentality that is out-of-touch with the rest of
America.
Recent reports in the press suggesting the IRS has been conducting
audits for political reasons, add weight to the need for limitations on
this activity. The IRS Accountability Act requires that all audits be
reasonably justified. It also prohibits random audits and reauditing of
returns or issues of a return unless approved by court order in the
course of a criminal investigation. Further, the IRS will be limited
explicitly to 3 years from the time a return is filed in which to
conduct an audit unless approved by court order in the course of a
criminal investigation.
The IRS Accountability Act also would extend the time responsible
taxpayers have to pay a tax without suffering a penalty. I could not
say how often I hear complaints about the inaccessibility of the IRS.
Time and time again, taxpayers cannot get answers from the IRS or even
speak with a customer service agent.

According to the IRS Taxpayer Advocate's recent report, one of the
most common complaints against the IRS is its failure to acknowledge
taxpayer correspondence.
The IRS's only responses seems to be more threats and higher
penalties. The IRS Accountability Act will help taxpayers by offering
some needed relief.
This legislation also preserves the integrity of judicial decisions
against the IRS. This section grants a Federal court the authority to
dismiss a case of controversy involving the IRS if it is shown that a
similar or identical case already has been decided within the court's
jurisdiction or circuit. The IRS places itself above our Federal
judiciary and will choose to disregard a court decision in subsequent
cases when it believes the court's decision is in error. This arrogance
must be held in check.
Mr. President, this legislation would place limits I believe are
needed on the IRS when it seizes or levies assets. How many times have
we heard press reports that a child's earnings from a paper route has
been seized or that a child's pennies have been taken to pay the tax
bill of a relative.
In Georgia, I recently learned of an instance where the care and
health of an elderly nursing home patient was jeopardized by the IRS
when it seized her account to pay the tax bill of a relative. Even
though it was well documented that the account contained only her
Social Security benefits and were used to pay for her care, the IRS
refused to relent until my office interceded. In addition, we have
heard numerous examples where assets have been taken erroneously. My
legislation would ensure that all levies and seizures are proper under
the law and are warranted by requiring the IRS to obtain prior court
approval.
My legislation also places what I believe are reasonable limits on
the accrual of interest and penalties. Specifically, it would decouple
the two, preventing interest from accruing on the penalty portion of an
unpaid tax bill.
Keep in mind the IRS' track record on responding to taxpayers.
According to the IRS Taxpayer Advocate, it isn't good. Now add the
following to the mix: interest on the unpaid tax, penalties on the
unpaid tax, and interest on the penalty on the unpaid tax. If a
hardworking taxpayer is unfortunate enough to run afoul of the IRS,
before he or she knows it, the tax bill has doubled, even tripled. For
too many taxpayers, when they become aware a problem exists, their bill
has turned into a burden they cannot hope to pay.
Further, this legislation would equalize the interest rates charged
by the IRS and against the IRS. Current law gives the IRS an advantage
in interest charges over taxpayers. I believe this is predicated on the
assumption that the Federal Government is more entitled to a taxpayer's
income than the taxpayer. Nothing should be farther from the truth.
Requiring equal rates to be charged will provide equity and bring to a
close another instance where Washington thinks it knows best with what
to do with families' income.
Finally, the IRS Accountability Act provides fairness in cases of
mathematical and clerical errors. For honest mistakes, the taxpayer
should have an opportunity to correct it without getting slapped by a
tax bill full of interest and penalty charges. Under my legislation, a
taxpayer would have a 60-day grace period after notification in which
to pay the unpaid tax or to file

[[Page S1678]]

an abatement request without incurring penalty or interest charges.
However, should the 60-day period elapse without the taxpayer selecting
either option, penalties and interest would be owed in full.
In closing, Mr. President, let me say what I have stated many times
before on the floor of the Senate. American families already send 55
percent of their income to government in the form of taxes and other
costs. Out of the remaining 45 percent, we expect them to clothe, feed,
house, educate, and otherwise raise America.
We also know that if things do not change, future generations will
face a lifetime tax rate of 84 percent. Already, families are bullied
and harassed by an agency eager to intimidate. How much farther would
the IRS be willing to go to collect an 84 percent tax burden? The time
has come to bring reason to the IRS. I invite my colleagues to join me
in this effort.
______

By Mr. WELLSTONE:
S. 367. A bill to amend the Family and Medical Leave Act of 1993 to
allow leave to address domestic violence and its effects, and for other
purposes; to the Committee on Finance.

battered women's employment protection act

Mr. WELLSTONE. Mr. President, while we have begun to make important
progress toward seriously addressing the devastating physical and
emotional effects of domestic violence, little attention has been paid
to the severe economic consequences of domestic abuse. The Battered
Women's Employment Protection Act, which I am introducing today, will
ensure eligibility for unemployment compensation to women who are
separated from their jobs as a direct result of domestic violence.
Several new studies illustrate the need for the legislation I am
introducing today. The evidence is irrefutable, domestic violence
dramatically affects women's ability to work and support themselves and
their children.
According to New York City's Victims Service, one-quarter of battered
women recently surveyed who have survived abuse had lost their jobs due
to the effects of domestic violence.
Abusive husbands and partners harass 74 percent of employed battered
women at work, either by showing up at the workplace or calling them at
work. It is not unusual for women in abusive relationships to be late
for work at least 5 times a month, to leave early at least 5 times a
month, and to miss at least 3 full days of work a month--National Work-
place Resource Center on Domestic Violence.
There have been cases brought to my attention in my home State of
Minnesota where the women trying to escape abusive relationships could
have benefited from this legislation, and we know that, sadly, there
are many more such stories throughout the country.
On February 12, 1997, a woman came into the Women's Rural Advocacy
Program in Marshall, MN, after her partner had emotionally, verbally,
and physically assaulted her. After many years of fighting, her abuser
finally let her get a drivers license and a car. His motivation for
allowing her to do this was that she could get a job, resulting in more
money for himself. Three months into her job, her partner assaulted her
and she was in need of safe housing and constant protection. Because of
the fear of her abuser finding her and her child, it was not safe for
her to take their child to daycare, so she was unable to get to work.
Seeing that this was a new job, she did not have any vacation days she
could use.
Her abuser soon found out where she was located. She panicked and
took her child and left the shelter, presumably the city, her friends,
and her job. The shelter advocate we spoke to had no idea where she
went, but was sure she had no money, very little clothes, and no car.
A woman, known as Sarah, is a 34-year-old college educated mother of
5 children, all under the age of 12. Sarah and her husband of 15 years
had a successful market research company. Their combined salaries
totaled over $225,000. The husband was the president of the company,
Sarah the vice president. They were equal share holders in the company
until Sarah came in contact with law enforcement and the Lewis House
Shelter due to her hospitalization for extensive injuries suffered at
the hands of her abusive husband.
Sarah admits that the abuse has gone on for years. She filed for an
order of protection, filed assault charges, and filed for divorce. Her
husband then fired Sarah from the company they started. Her lawyer
tells Sarah that she can sue for her position to be reinstated in the
company. Sarah knows she is not safe and that nothing can protect her
or her children from the repeated pattern of abuse. She is faced with
the loss of her position, her income, legal fees, medical bills, as
well as the foundation of her children's lives.
It took Sarah 6 months to find a full-time position. She has
supported herself by using credit cards she maintained in her own name.
She begins her new life with $30,000 of new debt. Her batterer
maintains his company today, with no loss of position and an increase
in income.
For women attempting to escape a violent environment, this
legislation can be a lifeline.
There has been great progress in the last few years in societal and
legislative response to violence within the home. One area that has not
been sufficiently addressed, in my opinion, is the economic cost of
domestic abuse.
The Bureau of National Affairs recently estimated that domestic
violence costs employers between 3 and 5 billion dollars per year.
Domestic violence results in lower productivity, greater absenteeism,
and increased health costs.
The National Institute for Justice estimates that from 1987 to 1990,
domestic violence cost Americans $67 billion a year.
According to annual estimates for reported domestic violence
injuries, family violence exacts a significant economic toll on the
well-being of the family, and the United States.
Forty-four million, three hundred ninety-three thousand, seven
hundred dollars total annual medical costs, 21,000 hospitalizations,
28,700 emergency room visits, and 175,000 days lost from work.
In addition--50 to 80 percent of women on AFDC are victims or past
victims of domestic violence (Taylor Institute Study, 1996). One year
after divorce, women's incomes average only 67 percent of their pre-
divorce incomes compared to 90 percent for men (Report of the American
Psychological Association Presidential Task Force on Violence and the
Family, 1996).
The Battered Women's Employment Protection Act will help women retain
employment and financial independence by ensuring that employed victims
of domestic violence can have time off from work to make necessary
court appearances, seek legal assistance, and get help with safety
planning, without penalty from the employer.
This bill enables employees to use their family, medical, sick, and
other leave in order to deal with circumstances arising from domestic
abuse.

Circumstances that would allow an employee to take leave include
going to the doctor for injuries caused by domestic violence, seeking
legal remedies such as going to court, seeking orders of protection, or
meeting with a lawyer.
Current Federal and State laws fail to address the negative economic
consequences domestic violence can cause. Today, battered women are not
expressly allowed to take leave from work to address the consequences
of family violence--both the physical and legal effects. This bill will
help women to escape abusive situations by helping them retain
employment and financial independence. And, by requiring employers to
provide leave to employees for the purpose of dealing with domestic
violence and its aftermath--it does not increase costs to employers, it
permits employees to use their existing leave to deal with domestic
violence.
Furthermore, to ensure that battered women can retain the
independence necessary to leave their abusers without having to rely on
welfare, the bill requires that States provide unemployment benefits to
women who are forced to leave work as a result of domestic abuse. The
bill ensures eligibility for unemployment compensation to women who are
separated from their jobs as a direct result of domestic violence. For
example, victims of abuse could not be denied unemployment if they were
forced to leave their jobs because they had to relocate for safety

[[Page S1679]]

reasons. Similarly, a woman would be eligible for unemployment
compensation if she was fired from her job because she repeatedly
showed up late for work with physical signs of abuse or was excessively
absent from work as a result of abuse. In addition, the bill provides
for specialized training of personnel in assessing unemployment
compensation claims based on domestic violence.
All of us here today are committed to doing what we can to help
battered women and their children escape domestic violence. I urge my
colleagues to join in this effort by cosponsoring the Battered Women's
Employment Protection Act.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 367

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

SECTION 1. SHORT TITLE AND REFERENCE.

(a) Short Title.--This Act may be cited as the ``Battered
Women's Employment Protection Act ''.
(b) Reference.--Whenever in this Act an amendment or repeal
is expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Family and
Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.).

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) violence against women is the leading cause of physical
injury to women, and the Department of Justice estimates that
intimate partners commit more than 1,000,000 violent crimes
against women every year;
(2) approximately 95 percent of the victims of domestic
violence are women;
(3) in the United States, a woman is more likely to be
assaulted, injured, raped, or killed by a male partner than
by any other type of assailant;
(4) the Bureau of Labor Statistics predicts that women will
account for two-thirds of all new entrants into the workforce
between now and the year 2000;
(5) violence against women dramatically affects women's
workforce participation, insofar as one-quarter of the
battered women surveyed had lost a job due at least in part
to the effects of domestic violence, and over one-half had
been harassed by their abuser at work;
(6) a study by Domestic Violence Intervention Services, Inc
found that 96 percent of employed domestic violence victims
had some type of problem in the workplace as a direct result
of their abuse or abuser;
(7) the availability of economic support is a critical
factor in a women's ability to leave abusive situations that
threaten them and their children, and over one-half of the
battered women surveyed stayed with their batterers because
they lacked resources to support themselves and their
children;
(8) a report by the New York City Victims Services Agency
found that abusive spouses and lovers harass 74 percent of
battered women at work, 54 percent of battering victims miss
at least 3 days of work per month, 56 percent are late for
work at least 5 times per month, and a University of
Minnesota study found that 24 percent of women in support
groups for battered women had lost a job partly because of
being abused;
(9) a survey of State unemployment insurance agency
directors by the Federal Advisory Council on Unemployment
Compensation found that in 31 States battered women who leave
work as a result of domestic violence do not qualify for
unemployment benefits, in 9 States the determination often
varies depending on the facts and circumstances, and in only
13 States are they usually considered qualified for
unemployment benefits;
(10) a study by the New York State Department of Labor
found that, when filing for unemployment insurance benefits,
domestic violence victims frequently hide their victimization
and do not disclose the domestic violence as a reason for
their problems with the job or need to separate from
employment;
(11) 49 percent of senior executives recently surveyed said
domestic violence has a harmful effect on their company's
productivity, 47 percent said domestic violence negatively
affects attendance, and 44 percent said domestic violence
increases health care costs, and the Bureau of National
Affairs estimates that domestic violence costs employers
between $3,000,000,000 and $5,000,000,000 per year; and
(12) existing Federal and State legislation does not
expressly authorize battered women to take leave from work to
seek legal assistance and redress, counseling, or assistance
with safety planning and activities.
(b) Purposes.--Pursuant to the affirmative power of
Congress to enact this Act under section 5 of the Fourteenth
Amendment to the Constitution, as well as under clause 1 of
section 8 of Article I of the Constitution and clause 3 of
section 8 of Article I of the Constitution, the purposes of
this Act are--
(1) to promote the national interest in reducing domestic
violence by enabling victims of domestic violence to maintain
the financial independence necessary to leave abusive
situations, to achieve safety and minimize the physical and
emotional injuries from domestic violence, and to reduce the
devastating economic consequences of domestic violence to
employers and employees, by--
(A) providing unemployment insurance for victims of
domestic violence who are forced to leave their employment as
a result of domestic violence; and
(B) entitling employed victims of domestic violence to take
reasonable leave under the Family and Medical Leave Act of
1993 (29 U.S.C. 2601 et seq.) to seek medical help, legal
assistance, counseling, and safety planning and assistance
without penalty from their employer;
(2) to promote the purposes of the Fourteenth Amendment by
protecting the civil and economic rights of victims of
domestic violence and by furthering the equal opportunity of
women to employment and economic self-sufficiency;
(3) to minimize the negative impact on interstate commerce
from dislocations of employees and harmful effects on
productivity, health care costs, and employer costs from
domestic violence; and
(4) to accomplish the purposes described in paragraphs (1)
, (2) and (3) in a manner that accommodates the legitimate
interests of employers.

SEC. 3. UNEMPLOYMENT COMPENSATION.

(a) Unemployment compensation.--Section 3304(a) of the
Internal Revenue Code of 1986 is amended--
(1) by striking ``and'' at the end of paragraph (18);
(2) by striking the period at the end of paragraph (19) and
inserting ``; and'';
(3) by adding after paragraph (19) the following:
``(20) compensation is to be provided where an individual
is separated from employment due to circumstances directly
resulting from the individual's experience of domestic
violence.'';
(4) by redesignating subsections (b) through (f) as
subsections (c) through (g), respectively, and
(5) by inserting after subsection (a) the following:
``(b) Construction.--
``(1) Directly resulting from violence.--For the purpose of
determining, under subsection (a)(20), whether an employee's
separation from employment is `directly resulting' from the
individual's experience of domestic violence, it shall be
sufficient if the separation from employment resulted from--
``(A) the employee's reasonable fear of future domestic
violence at or en route to or from her place of employment;
``(B) the employee's wish to relocate to another geographic
area in order to avoid future domestic violence against the
employee or the employee's family;
``(C) the employee's need to recover from traumatic stress
resulting from the employee's experience of domestic
violence;
``(D) the employer's denial of the employee's request for
the temporary leave from employment to address domestic
violence and its effects authorized by section 102 of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2612); or
``(E) any other respect in which domestic violence causes
the employee to reasonably believe that termination of
employment is necessary for the future safety of the employee
or the employee's family.
``(2) Reasonable efforts to retain employment.--For
purposes of subsection (a)(20), where State law requires the
employee to have made reasonable efforts to retain employment
as a condition for receiving unemployment compensation, it
shall be sufficient that the employee--
``(A) sought protection from or assistance in responding to
domestic violence, including calling the police or seeking
legal, social work, medical, clergy, or other assistance;
``(B) sought safety, including refuge in a shelter or
temporary or permanent relocation, whether or not the
employee actually obtained such refuge or accomplished such
relocation; or
``(C) reasonably believed that options such as a leave,
transfer, or alternative work schedule would not be
sufficient to guarantee the employee or the employee's
family's safety.
``(3) Active employment search.--For purposes of subsection
(a)(20), where State law requires the employee to actively
search for employment after separation from employment as a
condition for receiving unemployment compensation, such
requirement shall be deemed to be met where the employee is
temporarily unable to actively search for employment because
the employee is engaged in seeking safety or relief for the
employee or the employee's family from domestic violence,
including--
``(A) going into hiding or relocating or attempting to do
so, including activities associated with such relocation or
hiding, such as seeking to obtain sufficient shelter, food,
schooling for children, or other necessities of life for the
employee or the employee's family;
``(B) actively pursuing legal protection or remedies,
including meeting with the police, going to court to make
inquiries or file papers, meeting with attorneys, or
attending court proceedings; or
``(C) participating in psychological, social, or religious
counseling or support activities to assist the employee in
ending domestic violence.
``(4) Requirement to provide documentation or other
evidence.--In determining if

[[Page S1680]]

an employee meets the requirements of paragraphs (1), (2),
and (3), the employer of an employee may require the employee
to provide--
``(A) documentation of the domestic violence, such as
police or court records, or documentation of the domestic
violence from a shelter worker, attorney, clergy, or medical
or other professional from whom the employee has sought
assistance in addressing domestic violence and its effects;
or
``(B) other corroborating evidence, such as a statement
from any other individual with knowledge of the circumstances
which provide the basis for the claim, or physical evidence
of domestic violence, such as photographs, torn or bloody
clothes, or other similar evidence.

All evidence of domestic violence experienced by an employee,
including an employee's statement, any corroborating
evidence, and the fact that an employee has applied for or
inquired about unemployment compensation available under
subsection (a)(20) shall be retained in the strictest
confidence of the employer, except to the extent consented to
by the employee where disclosure is necessary to protect the
employee's safety.''.
(b) Social Security Personnel Training.--Section 303(a) of
the Social Security Act (42 U.S.C. 503(a)(4)) is amended by
redesignating paragraphs (4) through (10) as paragraphs (5)
through (11), respectively, and by inserting after paragraph
(3) the following:
``(4) Such methods of administration as will ensure that
claims reviewers and hearing personnel are adequately trained
in the nature and dynamics of domestic violence and in
methods of ascertaining and keeping confidential information
about possible experiences of domestic violence, so that
employment separations stemming from domestic violence are
reliably screened, identified, and adjudicated and full
confidentiality is provided for the employee's claim and
submitted evidence.''.
(c) Definitions.--Section 3306 of the Internal Revenue Code
of 1986 is amended by adding at the end the following:
``(u) Domestic violence.--The term `domestic violence'
includes abuse committed against an employee or a family
member of the employee by--
``(1) a current or former spouse of the employee;
``(2) a person with whom the employee shares a child in
common;
``(3) a person who is cohabitating with or has cohabitated
with the employee as a romantic or intimate partner; or
``(4) a person from whom the employee would be eligible for
protection under the domestic violence, protection order, or
family laws of the jurisdiction in which the employee resides
or the employer is located.
``(v) Abuse.--The term `abuse' includes--
``(1) physical acts resulting in, or threatening to result
in, physical injury;
``(2) sexual abuse, sexual activity involving a dependent
child, or threats of or attempts at sexual abuse;
``(3) mental abuse, including threats, intimidation, acts
designed to induce terror, or restraints on liberty; and
``(4) deprivation of medical care, housing, food or other
necessities of life.''.

SEC. 4. ENTITLEMENT TO LEAVE FOR DOMESTIC VIOLENCE.

(a) Authority for Leave.--Section 102(a)(1) (29 U.S.C.
2612(a)(1)) is amended by adding at the end the following:
``(E) In order to care for the child or parent of the
employee, if such child or parent is addressing domestic
violence and its effects.
``(F) Because the employee is addressing domestic violence
and its effects, the employee is unable to perform any of the
functions of the position of such employee.''.
(b) Definition.--Section 101 (29 U.S.C. 2611) is amended by
adding at the end the following:
``(14) Addressing domestic violence and its effects.--The
term `addressing domestic violence and its effects' means--
``(A) experiencing domestic violence;
``(B) seeking medical attention for or recovering from
injuries caused by domestic violence;
``(C) seeking legal assistance or remedies, including
communicating with the police or an attorney, or
participating in any legal proceeding related to domestic
violence;
``(D) attending support groups for victims of domestic
violence;
``(E) obtaining psychological counseling related to
experiences of domestic violence;
``(F) participating in safety planning and other actions to
increase safety from future domestic violence, including
temporary or permanent relocation; and
``(G) any other activity necessitated by domestic violence
which must be undertaken during hours of employment.''.
(c) Intermittent or Reduced Leave.--Section 102(b) (29
U.S.C. 2612(b)) is amended by adding at the end the
following:
``(3) Domestic violence.--Leave under subparagraph (E) or
(F) of subsection (a)(1) may be taken by an employee
intermittently or on a reduced leave schedule. The taking of
leave intermittently or on a reduced leave schedule pursuant
to this paragraph shall not result in a reduction in the
total amount of leave to which the employee is entitled under
subsection (a) beyond the amount of leave actually taken.''.
(d) Paid Leave.--Section 102(d)(2)(B) (29 U.S.C.
2612(d)(2)(B)) is amended by striking ``(C) or (D)'' and
inserting ``(C), (D), (E), or (F)''.
(e) Certification.--Section 103 (29 U.S.C. 2613) is amended
by redesignating subsection (e) as subsection (f) and by
inserting after subsection (d) the following:
``(e) Domestic Violence.--In determining if an employee
meets the requirements of subparagraph (E) or (F) of section
102(a)(1), the employer of an employee may require the
employee to provide--
``(1) documentation of the domestic violence, such as
police or court records, or documentation of the domestic
violence from a shelter worker, attorney, clergy, or medical
or other professional from whom the employee has sought
assistance in addressing domestic violence and its effects;
or
``(2) other corroborating evidence, such as a statement
from any other individual with knowledge of the circumstances
which provide the basis for the claim, or physical evidence
of domestic violence, such as photographs, torn or bloody
clothes, etc.''.
(f) Confidentiality.--Section 103 (29 U.S.C. 2613), as
amended by subsection (e), is amended--
(1) in the title by adding before the period the following:
``; CONFIDENTIALITY''; and
(2) by adding at the end the following:
``(f) Confidentiality.--All evidence of domestic violence
experienced by an employee or the employee's child or parent,
including an employee's statement, any corroborating
evidence, and the fact that an employee has requested leave
for the purpose of addressing domestic violence and its
effects, shall be retained in the strictest confidence by the
employer, except to the extent consented to by the employee
where disclosure is necessary to protect the employee's
safety.''.

SEC. 5. ENTITLEMENT TO LEAVE FOR FEDERAL EMPLOYEES FOR
DOMESTIC VIOLENCE.

(a) Authority for Leave.--Section 6382 of title 5, United
States Code is amended by adding at the end the following:
``(E) In order to care for the child or parent of the
employee, if such child or parent is addressing domestic
violence and its effects.
``(F) Because the employee is addressing domestic violence
and its effects, the employee is unable to perform any of the
functions of the position of such employee.''.
(b) Definition.--Section 6381 of title 5, United States
Code is amended--
(1) by striking ``and'' at the end of paragraph (5);
(2) by striking the period at the end of paragraph (6) and
inserting ``; and''; and
(3) by adding at the end the following:
``(7) the term `addressing domestic violence and its
effects' means--
``(A) experiencing domestic violence;
``(B) seeking medical attention for or recovering from
injuries caused by domestic violence;
``(C) seeking legal assistance or remedies, including
communicating with the police or an attorney, or
participating in any legal proceeding related to domestic
violence;
``(D) attending support groups for victims of domestic
violence;
``(E) obtaining psychological counseling related to
experiences of domestic violence;
``(F) participating in safety planning and other actions to
increase safety from future domestic violence, including
temporary or permanent relocation; and
``(G) any other activity necessitated by domestic violence
which must be undertaken during hours of employment.''.
(c) Intermittent or Reduced Leave.--Section 6382(b) of
title 5, United States Code, is amended by adding at the end
the following:
``(3) Leave under subparagraph (E) or (F) of subsection
(a)(1) may be taken by an employee intermittently or on a
reduced leave schedule. The taking of leave intermittently or
on a reduced leave schedule pursuant to this paragraph shall
not result in a reduction in the total amount of leave to
which the employee is entitled under subsection (a) beyond
the amount of leave actually taken.''.
(d) Other Leave.--Section 6382(d) of title 5, United States
Code, is amended by striking ``(C) or (D)'' and inserting
``(C), (D), (E), or (F)''.
(e) Certification.--Section 6383 of title 5, United States
Code, is amended by redesignating subsection (e) as
subsection (f) and by inserting after subsection (d) the
following:
``(e) Domestic Violence.--In determining if an employee
meets the requirements of subparagraph (E) or (F) of section
6382(a)(1), the employer of an employee may require the
employee to provide--
``(1) documentation of the domestic violence, such as
police or court records, or documentation of the domestic
violence from a shelter worker, attorney, clergy, or medical
or other professional from whom the employee has sought
assistance in addressing domestic violence and its effects;
or
``(2) other corroborating evidence, such as a statement
from any other individual with knowledge of the circumstances
which provide the basis for the claim, or physical evidence
of domestic violence, such as photographs, torn or bloody
clothes, etc.''.
(f) Confidentiality.--Section 6383 of title 5, United
States Code, as amended by subsection (e), is amended--
(1) in the title by adding before the period the following:
``; Confidentiality'', and
(2) by adding at the end the following:
``(g) Confidentiality.--All evidence of domestic violence
experienced by an employee or the employee's child or parent,
including an employee's statement, any corroborating
evidence, and the fact that an employee has requested leave
for the purpose of addressing domestic violence and its
effects, shall be retained in the strictest confidence by the
employer, except to the extent consented to by

[[Page S1681]]

the employee where disclosure is necessary to protect the
employee's safety.''.

SEC. 6. EFFECT ON OTHER LAWS AND EMPLOYMENT BENEFITS.

(1) More Protective.--Nothing in this Act or the amendments
made by this Act shall be construed to supersede any
provision of any Federal, State or local law, collective
bargaining agreement, or other employment benefit program
which provides greater unemployment compensation or leave
benefits for employed victims of domestic violence than the
rights established under this Act or such amendments.
(2) Less Protective.--The rights established for employees
under this Act or the amendments made by this Act shall not
be diminished by any collective bargaining agreement, any
employment benefit program or plan, or any State or local
law.

SEC. 7. EFFECTIVE DATE.

(a) General Rule.--Except as provided in subsection (b),
this Act and the amendments made by this Act shall take
effect upon the expiration of 180 days from the date of the
enactment of this Act.
(b) Unemployment Compensation.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by section 3 shall apply in the case of
compensation paid for weeks beginning on or after the
expiration of 180 days from the date of the enactment of this
Act.
(2) Meeting of state legislature.--In the case of a State
with respect to which the Secretary of Labor has determined
that the State legislature is required in order to comply
with the amendments made by section 3, the amendments made by
section 3 shall apply in the case of compensation paid for
weeks which begin on or after the expiration of 180 days from
the date of the enactment of this Act and after the end of
the first session of the Sate legislature which begins after
the date of the enactment of this Act or which began prior to
the date of the enactment of this Act and remained in session
for at least 25 calendar days after such date of enactment.
For purposes of the preceding sentence, the term ``session''
means a regular, special, budget, or other session of a State
legislature.

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