[Congressional Record Volume 143, Number 43 (Monday, April 14, 1997)]
[Senate]
[Pages S3117-S3125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SANTORUM (for himself and Mr. Coverdell):
S. 563. A bill to limit the civil liability of business entities that
donate equipment to nonprofit organizations; to the Committee on the
Judiciary.
S. 564. A bill to limit the civil liability of business entities
providing use of facilities to nonprofit organizations; to the
Committee on the Judiciary.
S. 565. A bill to limit the civil liability of business entities that
make available to a nonprofit organization the use of a motor vehicle
or aircraft; to the Committee on the Judiciary.
S. 566. A bill to limit the civil liability of business entities that
provide facility tours; to the Committee on the Judiciary.
LEGISLATION TO LIMIT CIVIL LIABILITY OF BUSINESS
Mr. SANTORUM. Mr. President, I introduce four related pieces
of legislation all aimed at increasing donations of goods and services
to charities. Collectively called the charity empowerment project, I
urge my colleagues to consider cosponsoring these bills.
Over the past 30 years, courts have consistently expanded what
constitutes tortious conduct. Regrettably, fault is often not a factor
when deciding who should compensate an individual for damages incurred.
This has had an impact on charitable giving. Today, individuals and
businesses are wary of giving goods, services, and time to charities
for fear of frivolous lawsuits.
The charity empowerment project is designed to free up resources for
charities by providing legal protections for donors. Generally, these
bills raise the tort liability standard for donors, whereby they are
liable only in cases of gross negligence, hence eliminating strict
liability and returning to a fault based legal standard. By allowing
businesses to once again become good Samaritans, I look forward to
seeing a massive increase in the donation of goods and services to
charities.
Specifically, I am introducing four bills each of which accomplishes
one of the following four objectives: First, to limit the civil
liability of business entities that donate equipment to nonprofit
organizations; second, to limit the civil liability of business
entities that provide use of their facilities to nonprofit
organizations; third, to limit the civil liability of business entities
that provide facility tours; and fourth, to limit the civil liability
of business entities that make available to nonprofit organizations the
use of motor vehicles or aircraft.
Clearly, where an organization is grossly negligent when providing
goods or the use of its facilities to charity, that organization should
be fully liable for injuries caused. These bills merely require this to
be the standard in cases arising from certain donations to charities.
Last autumn, the Good Samaritan Food Donation Act was passed into
law. This law now protects donors of foodstuffs to charities from
liability except in cases where the donor was grossly negligent in
making the donation. I was proud to join Senator Bond in his successful
efforts to pass this act. The bills I introduce today draw from my
successful work with Senator Bond last year. Each of these bills is
modeled on the legal framework of the Good Samaritan Food Donation Act.
I hope my distinguished colleagues who supported the Food Donation Act
will help further these efforts by supporting the charity empowerment
project.
Mr. President, I wish to note additional efforts by my colleagues to
enhance charitable giving. Senator Coverdell and Senator Ashcroft have
recently introduced legislation which
[[Page S3118]]
protects volunteers from frivolous and damaging litigation. I am proud
to be an original cosponsor of Senator Coverdell's Volunteer Protection
Act of 1997, and I anticipate supporting Senator Ashcroft's bill with
equal vigor. Collectively, I look forward to our legislation freeing up
massive resources for charities through increased volunteerism and
increased giving.
At the end of this month, the Summit for America's Future will
assemble in Philadelphia. The Senate now has the opportunity to
consider the Santorum, Coverdell, and Ashcroft bills prior to the
convening of this century's greatest gathering on voluntarism. There
may never be a more appropriate time to consider legislation which so
dramatically empowers charities with enhanced ability to carry out
their noble causes.
Mr. President, I ask unanimous consent that the text of these bills
be printed in the Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:
S. 563
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LIABILITY OF BUSINESS ENTITIES THAT DONATE
EQUIPMENT TO NONPROFIT ORGANIZATIONS.
(a) Definitions.--In this section:
(1) Business entity.--The term ``business entity'' means a
firm, corporation, association, partnership, consortium,
joint venture, or other form of enterprise.
(2) Equipment.--The term ``equipment'' includes mechanical
equipment, electronic equipment, and office equipment.
(3) Gross negligence.--the term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge
(at the time of the conduct) that the conduct is likely to be
harmful to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the
health or well-being of another person.
(5) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code; or
(B) any not-for-profit organization organized and conducted
for public benefit and operated primarily for charitable,
civic, educational, religious, welfare, or health purposes.
(6) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to
any injury or death that results from the use of equipment
donated by a business entity to a noprofit organization.
(2) Application.--This subsection shall apply with respect
to civil liability under Federal and State law.
(c) Exception for Liability.--Subsection (b) shall not
apply to an injury or death that results from an act or
omission of a business entity that constitutes gross
negligence or intentional misconduct, including any
misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent
that such laws are inconsistent with this Act, except that
this Act shall not preempt any State law that provides
additional protection for a business entity for an injury or
death described in subsection (b)(1).
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a business entity in which all parties are citizens of the
State if such State enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provisions.
____
S. 564
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LIABILITY OF BUSINESS ENTITIES PROVIDING USE OF
FACILITIES TO NONPROFIT ORGANIZATIONS.
(a) Definitions.--In this section:
(1) Business entity.--The term ``business entity'' means a
firm, corporation, association, partnership, consortium,
joint venture, or other form of enterprise.
(2) Facility.--The term ``facility'' means any real
property, including any building, improvement, or
appurtenance.
(3) Gross negligence.--The term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge
(at the time of the conduct) that the conduct is likely to be
harmful to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the
health or well-being of another person.
(5) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code; or
(B) any not-for-profit organization organized and conducted
for public benefit and operated primarily for charitable,
civic, educational, religious, welfare, or health purposes.
(6) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to
any injury or death occurring at a facility of the business
entity in connection with a use of such facility by a
nonprofit organization if--
(A) the use occurs outside of the scope of business of the
business entity;
(B) such injury or death occurs during a period that such
facility is used by the nonprofit organization; and
(C) the business entity authorized the use of such facility
by the nonprofit organization.
(2) Application.--This subsection shall apply--
(A) with respect to civil liability under Federal and State
law; and
(B) regardless of whether a nonprofit organization pays for
the use of a facility.
(c) Exception for Liability.--Subsection (b) shall not
apply to an injury or death that results from an act or
omission of a business entity that constitutes gross
negligence or intentional misconduct, including any
misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent
that such laws are inconsistent with this Act, except that
this Act shall not preempt any State law that provides
additional protection from liability for a business entity
for an injury or death with respect to which conditions under
subparagraphs (A) through (C) of subsection (b)(1) apply.
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a business entity in which all parties are citizens of the
State if such State enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provisions.
____
S. 565
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LIABILITY OF BUSINESS ENTITIES PROVIDING USE OF A
MOTOR VEHICLE OR AIRCRAFT.
(a) Definitions.--In this section:
(1) Aircraft.--The term ``aircraft'' has the meaning
provided that term in section 40102(6) of title 49, United
States Code.
(2) Business entity.--the term ``business entity'' means a
firm, corporation, association, partnership, consortium,
joint venture, or other form of enterprise.
(3) Gross negligence.--The term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge
(at the
[[Page S3119]]
time of the conduct) that the conduct is likely to be harmful
to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the
health or well-being of another person.
(5) Motor vehicle.--The term ``motor vehicle'' has the
meaning provided that term in section 30102(6) of title 49,
United States Code.
(6) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code; or
(B) any not-for-profit organization organized and conducted
for public benefit and operated primarily for charitable,
civic, educational, religious, welfare, or health purposes.
(7) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to
any injury or death occurring as a result of the operation of
aircraft or a motor vehicle of a business entity loaned to a
nonprofit organization for use outside of the scope of
business of the business entity if--
(A) such injury or death occurs during a period that such
motor vehicle or aircraft is used by a nonprofit
organization; and
(B) the business entity authorized the use by the nonprofit
organization of motor vehicle or aircraft that resulted in
the injury or death
(2) Application.--This subsection shall apply--
(A) with respect to civil liability under Federal and State
law; and
(B) regardless of whether a nonprofit organization pays for
the use of the aircraft or motor vehicle.
(c) Exception for Liability.--Subsection (b) shall not
apply to an injury or death that results from an act or
omission of a business entity that constitutes gross
negligence or intentional misconduct, including any
misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent
that such laws are inconsistent with this Act, except that
this Act shall not preempt any State law that provides
additional protection from liability for a business entity
with respect an injury or death with respect to which the
conditions described in subparagraphs (A) and (B) of
subsection (b)(1) apply.
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a volunteer, nonprofit organization, or governmental entity
in which all parties are citizens of the State if such State
enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provisions.
____
S. 566
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LIABILITY OF BUSINESS ENTITIES PROVIDING TOURS OF
FACILITIES.
(a) Definitions.--In this section:
(1) Business entity.--The term ``business entity'' means a
firm, corporation, association, partnership, consortium,
joint venture, or other form of enterprise.
(2) Facility.--The term ``facility'' means any real
property, including any building, improvement, or
appurtenance.
(3) Gross negligence.--The term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge
(at the time of the conduct) that the conduct is likely to be
harmful to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the
health or well-being of another person.
(5) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to
any injury to, or death of an individual occurring at a
facility of the business entity if--
(A) such injury or death occurs during a tour of the
facility in an area of the facility that is not otherwise
accessible to the general public; and
(B) the business entity authorized the tour.
(2) Application.--This subsection shall apply--
(A) with respect to civil liability under Federal and State
law; and
(B) regardless of whether an individual pays for the tour.
(c) Exception for Liability.--Subsection (b) shall not
apply to an injury or death that results from an act or
omission of a business entity that constitutes gross
negligence or intentional misconduct, including any
misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent
that such laws are inconsistent with this Act, except that
this Act shall not preempt any State law that provides
additional protection from liability for a business entity
for an injury or death with respect to which the conditions
under subparagraphs (A) and (B) of subsection (b)(1) apply.
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a business entity in which all parties are citizens of the
State if such State enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provisions.
______
By Mr. SMITH of New Hampshire:
S. 567. A bill to permit revocation by members of the clergy of their
exemption from Social Security coverage; to the Committee on Finance.
social security coverage legislation
Mr. SMITH of New Hampshire. Mr. President, today I am introducing
what I believe to be a very sensible piece of legislation which will
allow a number of members of the clergy of all faiths to participate in
the Social Security Program. Before 1968 a minister was exempt from
Social Security coverage unless he or she chose to elect that coverage,
and in 1968 ministers were covered by Social Security unless they filed
an irrevocable exemption from the IRS on the grounds that they were
opposed on basic religious principles to participate in any public
insurance program. So a member of the clergy who is eligible for this
exemption is an ``individual who is duly ordained, commissioned, or
licensed member of a church, or a member of a religious order which has
not taken a vow of poverty.''
About 260,000 ministers are affected by this exclusion. This
legislation which I have offered would simply permit ministers and the
few members of religious orders who have not taken a vow of poverty to
secure that coverage. Modestly paid clergy would be among those most
likely to need Social Security benefits when they retire. But earlier
in their careers many chose not to participate in the program. They had
good intentions. They were doing it on principle. But they didn't fully
understand the ramifications of the exemption. Since 1968--once in 1977
and another time in 1986--ministers were given a temporary opportunity
to revoke their exemption from Social Security; that is, they would
have the opportunity to have a window whereby they could come back
under the Social Security System.
This was brought to my attention by the distinguished bishop in
Manchester, NH, Reverend Bishop O'Neil.
[[Page S3120]]
He brought this matter to my attention--that there are a number of
hardships for individuals who may or may not have any retirement income
as a result of this.
So this legislation simply provides another open season, a 2-year
period whereby those who are clergy who may wish now to be under the
Social Security System may take advantage of this opportunity to revoke
their exemption.
That is all the bill does, and I think it is fair in that again these
are very principled members of the cloth who have decided now that they
would like to have the opportunity to get into the program.
So it is a 2-year open season during which the members of the clergy
could opt into the system. The application for benefits must be filed
before the clergy member can become entitled to benefits, and those who
choose coverage would be subject to self-employment taxes. And their
earnings would be credited for Social Security and for Medicare
purposes. And, of course, no one who is at retirement age now would be
allowed in. These would be people who are not yet at the retirement
age.
Based on the experience in 1986 and the trends in the number of
clergy since then, the Congressional Budget Office estimates that maybe
as many as 1,500 to 1,600 members of the clergy would take advantage of
the open season and enroll in Social Security. That is based on past
performance. That is what happened in 1986. The bill was scored by the
Congressional Budget Office. I have had it scored. It is a short-time
revenue raiser because people would be paying into the system but, of
course, it is going to ultimately be like any other Social Security
beneficiary in the sense that we will be paying out more than comes in.
This legislation has the endorsement of the National Conference of
Catholic Bishops. It is an issue of fairness. I hope my colleagues will
join me in support of this legislation which I would like to see passed
this year so that we could begin the open season process so that
members of the clergy could opt in now to the Social Security System. I
hope that many of my colleagues will join me as quickly as possible in
cosponsoring the legislation so that we can get it out of the Finance
Committee and here on the floor so that we can begin to correct this
inadequacy, this unfairness where many members of the clergy are
affected.
______
By Mr. McCAIN (for himself, Mr. Campbell, Mr. Domenici, and Mr.
Dorgan):
S. 569. A bill to amend the Indian Child Welfare Act of 1978, and for
other purposes; to the Committee on Indian Affairs.
the indian child welfare act amendments of 1997
Mr. McCAIN. Mr. President, I am introducing today a bill to
amend the Indian Child Welfare Act [ICWA] of 1978 to make the process
that applies to voluntary Indian child custody and adoption proceedings
more fair, consistent, and certain. The provisions of this legislation
would further advance the best interests of Indian children without
eroding tribal sovereignty and the fundamental principles of Federal-
Indian law.
I want to thank my principal cosponsors, Senators Campbell, Domenici,
and Dorgan, for their continued support of this much-needed
legislation. Let me point out also that this bill is identical to
legislation which passed the Senate by unanimous consent on September
26, 1996. It is the result of nearly 2 years of discussions and debates
among representatives of the adoption community, Indian tribal
governments, and the Congress to address some of the problems with the
implementation of ICWA since its enactment in 1978.
Mr. President, ICWA was originally enacted to provide for procedural
and substantive protection for Indian children and families and to
recognize and formalize a substantial role for Indian tribes in cases
involving involuntary and voluntary child custody proceedings, whether
on or off the Indian reservation. Although implementation of ICWA has
been less than perfect, in the vast majority of cases ICWA has
effectively provided such protection. It has compelled greater efforts
and more painstaking analysis by State and private adoption agencies
and State courts before removing Indian children from their homes and
communities. It has required recognition by all parties that an Indian
child has a vital interest in retaining a connection with his or her
Indian tribe.
Nonetheless, particularly in the voluntary adoption context, there
have been occasional, high-profile cases which have resulted in
lengthy, protracted litigation causing great anguish for the children,
their adoptive families, their birth families, and their Indian tribes.
This bill takes a measured and limited approach, crafted by
representatives of tribal governments and the adoption community, to
address the problems of implementing ICWA in voluntary adoption
proceedings.
This legislation would achieve greater certainty and speed in the
adoption process for Indian children by providing new guarantees of
early and effective notice in all cases involving Indian children. The
bill also establishes new, strict time restrictions on both the right
of Indian tribes and families to intervene and the right of Indian
birth parents to revoke their consent to an adoptive placement.
Finally, the bill includes a provision which would encourage early
identification of the relatively few cases involving controversy and
promote the settlement of cases by making visitation agreements
enforceable.
For a full analysis of the provisions of the bill, I respectfully
refer my colleagues to the report accompanying the legislation as it
was reported to the Senate on July 26, 1996, which is Senate Report No.
104-335.
Mr. President, nothing is more sacred and more important to our
future than our children. The issues surrounding Indian child welfare
stir deep emotions. I am thankful that, in formulating the compromise
that led to the introduction of this bill in the last Congress, the
representatives of both the adoption community and tribal governments
were able to put aside their individual desires and focus on the best
interests of Indian children.
Mr. President, last year, proposals were put forth in the House which
would have gone too far in restricting the application of ICWA. Those
proposals, which were considered by the Senate as title III of H.R.
3286, the Adoption Promotion and Stability Act of 1996, were deleted by
the Indian Affairs Committee because of our concern about the breadth
of the language and the fundamental changes the provisions would have
made to the government-to-government relationship between the United
States and Indian tribes.
I believe this bill represents an appropriate and fair-minded
compromise proposal which would enhance the best interests of Indian
children by guaranteeing speed, certainty, and stability in the
adoption process. At the same time, the provisions of this bill
preserve fundamental principles of tribal government by recognizing the
appropriate role of tribal governments in the lives of Indian children.
Mr. President, this bill has been thoroughly analyzed and debated in
the Senate, as well as in the adoption community and Indian tribal
governments. I believe it is time for the Congress to act in the best
interests of Indian children by approving these amendments to the
voluntary adoption procedures in the 1978 ICWA.
Mr. President, I ask unanimous consent that the full text of the
legislation I am introducing today be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 569
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Indian
Child Welfare Act Amendments of 1997''.
(b) References.--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
Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).
SEC. 2. EXCLUSIVE JURISDICTION.
Section 101(a) (25 U.S.C. 1911(a)) is amended--
(1) by inserting ``(1)'' after ``(a)''; and
(2) by striking the last sentence and inserting the
following:
[[Page S3121]]
``(2) An Indian tribe shall retain exclusive jurisdiction
over any child custody proceeding that involves an Indian
child, notwithstanding any subsequent change in the residence
or domicile of the Indian child, in any case in which the
Indian child--
``(A) resides or is domiciled within the reservation of the
Indian tribe and is made a ward of a tribal court of that
Indian tribe; or
``(B) after a transfer of jurisdiction is carried out under
subsection (b), becomes a ward of a tribal court of that
Indian tribe.''.
SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.
Section 101(c) (25 U.S.C. 1911(c)) is amended by striking
``In any State court proceeding'' and inserting ``Except as
provided in section 103(e), in any State court proceeding''.
SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.
Section 103(a) (25 U.S.C. 1913(a)) is amended--
(1) by inserting ``(1)'' before ``Where'';
(2) by striking ``foster care placement'' and inserting
``foster care or preadoptive or adoptive placement'';
(3) by striking ``judge's certificate that the terms'' and
inserting the following: ``judge's certificate that--
``(A) the terms'';
(4) by striking ``or Indian custodian.'' and inserting ``or
Indian custodian; and'';
(5) by inserting after subparagraph (A), as designated by
paragraph (3) of this subsection, the following new
subparagraph:
``(B) any attorney or public or private agency that
facilitates the voluntary termination of parental rights or
preadoptive or adoptive placement has informed the natural
parents of the placement options with respect to the child
involved, has informed those parents of the applicable
provisions of this Act, and has certified that the natural
parents will be notified within 10 days of any change in the
adoptive placement.'';
(6) by striking ``The court shall also certify'' and
inserting the following:
``(2) The court shall also certify'';
(7) by striking ``Any consent given prior to,'' and
inserting the following:
``(3) Any consent given prior to,''; and
(8) by adding at the end the following new paragraph:
``(4) An Indian custodian who has the legal authority to
consent to an adoptive placement shall be treated as a parent
for the purposes of the notice and consent to adoption
provisions of this Act.''.
SEC. 5. WITHDRAWAL OF CONSENT.
Section 103(b) (25 U.S.C. 1913(b)) is amended--
(1) by inserting ``(1)'' before ``Any''; and
(2) by adding at the end the following new paragraphs:
``(2) Except as provided in paragraph (4), a consent to
adoption of an Indian child or voluntary termination of
parental rights to an Indian child may be revoked, only if--
``(A) no final decree of adoption has been entered; and
``(B)(i) the adoptive placement specified by the parent
terminates; or
``(ii) the revocation occurs before the later of the end
of--
``(I) the 180-day period beginning on the date on which the
Indian child's tribe receives written notice of the adoptive
placement provided in accordance with the requirements of
subsections (c) and (d); or
``(II) the 30-day period beginning on the date on which the
parent who revokes consent receives notice of the
commencement of the adoption proceeding that includes an
explanation of the revocation period specified in this
subclause.
``(3) The Indian child with respect to whom a revocation
under paragraph (2) is made shall be returned to the parent
who revokes consent immediately upon an effective revocation
under that paragraph.
``(4) Subject to paragraph (6), if, by the end of the
applicable period determined under subclause (I) or (II) of
paragraph (2)(B)(ii), a consent to adoption or voluntary
termination of parental rights has not been revoked,
beginning after that date, a parent may revoke such a consent
only--
``(A) pursuant to applicable State law; or
``(B) if the parent of the Indian child involved petitions
a court of competent jurisdiction, and the court finds that
the consent to adoption or voluntary termination of parental
rights was obtained through fraud or duress.
``(5) Subject to paragraph (6), if a consent to adoption or
voluntary termination of parental rights is revoked under
paragraph (4)(B), with respect to the Indian child involved--
``(A) in a manner consistent with paragraph (3), the child
shall be returned immediately to the parent who revokes
consent; and
``(B) if a final decree of adoption has been entered, that
final decree shall be vacated.
``(6) Except as otherwise provided under applicable State
law, no adoption that has been in effect for a period longer
than or equal to 2 years may be invalidated under this
subsection.''.
SEC. 6. NOTICE TO INDIAN TRIBES.
Section 103(c) (25 U.S.C. 1913(c)) is amended to read as
follows:
``(c)(1) A party that seeks the voluntary placement of an
Indian child or the voluntary termination of the parental
rights of a parent of an Indian child shall provide written
notice of the placement or proceeding to the Indian child's
tribe. A notice under this subsection shall be sent by
registered mail (return receipt requested) to the Indian
child's tribe, not later than the applicable date specified
in paragraph (2) or (3).
``(2)(A) Except as provided in paragraph (3), notice shall
be provided under paragraph (1) in each of the following
cases:
``(i) Not later than 100 days after any foster care
placement of an Indian child occurs.
``(ii) Not later than 5 days after any preadoptive or
adoptive placement of an Indian child.
``(iii) Not later than 10 days after the commencement of
any proceeding for a termination of parental rights to an
Indian child.
``(iv) Not later than 10 days after the commencement of any
adoption proceeding concerning an Indian child.
``(B) A notice described in subparagraph (A)(ii) may be
provided before the birth of an Indian child if a party
referred to in paragraph (1) contemplates a specific adoptive
or preadoptive placement.
``(3) If, after the expiration of the applicable period
specified in paragraph (2), a party referred to in paragraph
(1) discovers that the child involved may be an Indian
child--
``(A) the party shall provide notice under paragraph (1)
not later than 10 days after the discovery; and
``(B) any applicable time limit specified in subsection (e)
shall apply to the notice provided under subparagraph (A)
only if the party referred to in paragraph (1) has, on or
before commencement of the placement, made reasonable inquiry
concerning whether the child involved may be an Indian
child.''.
SEC. 7. CONTENT OF NOTICE.
Section 103(d) (25 U.S.C. 1913(d)) is amended to read as
follows:
``(d) Each written notice provided under subsection (c)
shall contain the following:
``(1) The name of the Indian child involved, and the actual
or anticipated date and place of birth of the Indian child.
``(2) A list containing the name, address, date of birth,
and (if applicable) the maiden name of each Indian parent and
grandparent of the Indian child, if--
``(A) known after inquiry of--
``(i) the birth parent placing the child or relinquishing
parental rights; and
``(ii) the other birth parent (if available); or
``(B) otherwise ascertainable through other reasonable
inquiry.
``(3) A list containing the name and address of each known
extended family member (if any), that has priority in
placement under section 105.
``(4) A statement of the reasons why the child involved may
be an Indian child.
``(5) The names and addresses of the parties involved in
any applicable proceeding in a State court.
``(6)(A) The name and address of the State court in which a
proceeding referred to in paragraph (5) is pending, or will
be filed; and
``(B) the date and time of any related court proceeding
that is scheduled as of the date on which the notice is
provided under this subsection.
``(7) If any, the tribal affiliation of the prospective
adoptive parents.
``(8) The name and address of any public or private social
service agency or adoption agency involved.
``(9) An identification of any Indian tribe with respect to
which the Indian child or parent may be a member.
``(10) A statement that each Indian tribe identified under
paragraph (9) may have the right to intervene in the
proceeding referred to in paragraph (5).
``(11) An inquiry concerning whether the Indian tribe that
receives notice under subsection (c) intends to intervene
under subsection (e) or waive any such right to intervention.
``(12) A statement that, if the Indian tribe that receives
notice under subsection (c) fails to respond in accordance
with subsection (e) by the applicable date specified in that
subsection, the right of that Indian tribe to intervene in
the proceeding involved shall be considered to have been
waived by that Indian tribe.''.
SEC. 8. INTERVENTION BY INDIAN TRIBE.
Section 103 (25 U.S.C. 1913) is amended by adding at the
end the following new subsections:
``(e)(1) The Indian child's tribe shall have the right to
intervene at any time in a voluntary child custody proceeding
in a State court only if--
``(A) in the case of a voluntary proceeding to terminate
parental rights, the Indian tribe filed a notice of intent to
intervene or a written objection to the termination, not
later than 30 days after receiving notice that was provided
in accordance with the requirements of subsections (c) and
(d); or
``(B) in the case of a voluntary adoption proceeding, the
Indian tribe filed a notice of intent to intervene or a
written objection to the adoptive placement, not later than
the later of--
``(i) 90 days after receiving notice of the adoptive
placement that was provided in accordance with the
requirements of subsections (c) and (d); or
``(ii) 30 days after receiving a notice of the voluntary
adoption proceeding that was provided in accordance with the
requirements of subsections (c) and (d).
``(2)(A) Except as provided in subparagraph (B), the Indian
child's tribe shall have the right to intervene at any time
in a voluntary child custody proceeding in a State court in
any case in which the Indian tribe did not receive written
notice provided in accordance with the requirements of
subsections (c) and (d).
[[Page S3122]]
``(B) An Indian tribe may not intervene in any voluntary
child custody proceeding in a State court if the Indian tribe
gives written notice to the State court or any party involved
of--
``(i) the intent of the Indian tribe not to intervene in
the proceeding; or
``(ii) the determination by the Indian tribe that--
``(I) the child involved is not a member of, or is not
eligible for membership in, the Indian tribe; or
``(II) neither parent of the child is a member of the
Indian tribe.
``(3) If an Indian tribe files a motion for intervention in
a State court under this subsection, the Indian tribe shall
submit to the court, at the same time as the Indian tribe
files that motion, a certification that includes a statement
that documents, with respect to the Indian child involved,
the membership or eligibility for membership of that Indian
child in the Indian tribe under applicable tribal law.
``(f) Any act or failure to act of an Indian tribe under
subsection (e) shall not--
``(1) affect any placement preference or other right of any
individual under this Act;
``(2) preclude the Indian tribe of the Indian child that is
the subject of an action taken by the Indian tribe under
subsection (e) from intervening in a proceeding concerning
that Indian child if a proposed adoptive placement of that
Indian child is changed after that action is taken; or
``(3) except as specifically provided in subsection (e),
affect the applicability of this Act.
``(g) Notwithstanding any other provision of law, no
proceeding for a voluntary termination of parental rights or
adoption of an Indian child may be conducted under applicable
State law before the date that is 30 days after the Indian
child's tribe receives notice of that proceeding that was
provided in accordance with the requirements of subsections
(c) and (d).
``(h) Notwithstanding any other provision of law (including
any State law)--
``(1) a court may approve, if in the best interests of an
Indian child, as part of an adoption decree of that Indian
child, an agreement that states that a birth parent, an
extended family member, or the Indian child's tribe shall
have an enforceable right of visitation or continued contact
with the Indian child after the entry of a final decree of
adoption; and
``(2) the failure to comply with any provision of a court
order concerning the continued visitation or contact referred
to in paragraph (1) shall not be considered to be grounds for
setting aside a final decree of adoption.''.
SEC. 9. FRAUDULENT REPRESENTATION.
Title I of the Indian Child Welfare Act of 1978 is amended
by adding at the end the following new section:
``SEC. 114. FRAUDULENT REPRESENTATION.
``(a) In General.--With respect to any proceeding subject
to this Act involving an Indian child or a child who may be
considered to be an Indian child for purposes of this Act, a
person, other than a birth parent of the child, shall, upon
conviction, be subject to a criminal sanction under
subsection (b) if that person knowingly and willfully--
``(1) falsifies, conceals, or covers up by any trick,
scheme, or device, a material fact concerning whether, for
purposes of this Act--
``(A) a child is an Indian child; or
``(B) a parent is an Indian; or
``(2)(A) makes any false, fictitious, or fraudulent
statement, omission, or representation; or
``(B) falsifies a written document knowing that the
document contains a false, fictitious, or fraudulent
statement or entry relating to a material fact described in
paragraph (1).
``(b) Criminal Sanctions.--The criminal sanctions for a
violation referred to in subsection (a) are as follows:
``(1) For an initial violation, a person shall be fined in
accordance with section 3571 of title 18, United States Code,
or imprisoned not more than 1 year, or both.
``(2) For any subsequent violation, a person shall be fined
in accordance with section 3571 of title 18, United States
Code, or imprisoned not more than 5 years, or
both.''.
Mr. CAMPBELL. Mr. President, as Chairman of the Committee on Indian
Affairs, today I join Senator McCain in introducing the Indian Child
Welfare Act Amendments of 1997. This legislation will amend the 1978
Indian Child Welfare Act [ICWA] and will serve the best interests of
Indian children across the United States in the process. The ICWA is a
procedural statute and this legislation clarifies and strengthens the
procedures contained in it. The bill strengthens the statute by
providing certainty, stability, and finality to adoptions and other
placements involving Indian children.
In the 104th Congress, this legislation received the support of
parties affected by and knowledgeable of ICWA-related adoptions: tribal
organizations, and non-Indian adoption attorneys. The bill I am
cosponsoring today addresses the major concerns of these parties in a
way that strengthens the existing ICWA, and provides certainty and
finality to non-Indian adoptive families. Most important, this bill
serves the best interests of Indian children and enhances the integrity
of Indian families.
Adoption and child custody proceedings are delicate and emotional
matters for all involved: for the Indian child; for the birth parents;
for the Indian tribe; and for the adoptive parents. My own experience
as a youth is helpful in providing a context for ICWA and why it was
enacted. I grew up in California, many miles from the Northern Cheyenne
Reservation in Montana where my tribe and relatives lived. I am lucky
in that even though I was not raised on the reservation, I still cling
to my tribal identity, my culture, and the spiritual traditions that
make me a member of the Northern Cheyenne Tribe. Many Indian youth are
not so lucky, and once removed from their Indian families, tribes and
cultures, never regain what they have lost.
The 1978 statute has worked well since its inception, and the reasons
it was introduced are crucial to understanding the act and the
legislation we introduce today. After exhaustive congressional
testimony and many years of hard work the Indian Child Welfare Act was
enacted in 1978. Prior to 1978 there were no available protections for
Indian children, families, or tribes in situations involving the
unwarranted and forced removal of Indian children from their families,
tribes, and rich cultures. The cold fact is that prior to ICWA between
25 percent and 35 percent of all Indian children were separated from
their families and given to adoptive families or placed in foster care
or in institutions.
Through exhaustive hearings prior to enactment of the 1978 act, the
Congress realized that at the staggering rate of Indian child removal,
it would have been simply a matter of time before Indian families and
tribes would literally be sapped of their futures--their precious
children.
The ICWA is procedural in nature and is designed to protect the best
interests of Indian children by reinforcing the strong interests Indian
families and tribes have in maintaining their relationships with their
children. The act also recognizes that tribal authorities and tribal
courts are the appropriate authorities over Indian adoptions and
placements. Just as we in the majority often speak of maintaining
families and traditions and of respecting the rights of local
governments, this act is one of the few Indian statutes that actually
does both.
Non-Indian institutions, including State courts, do not and cannot
completely understand the unique culture and relationships that make up
tribal life. Because they cannot know these facts and these
relationships, they should not be given authority to make child custody
decisions involving Indian children. Practically, State authorities are
not in a position to make these decisions. Legally, they should not be
allowed to make these decisions. The right of any sovereign nation,
including Indian nations, includes the right to determine who is and
who is not a member or citizen. The legislation we introduce today
preserves those most basic rights of Indian tribes: tribal self-
preservation and self-determination.
Mr. President, I want to say a word about adoptive parents and
families. The decision to adopt a child or children is one that is done
out of the noblest motives, and with much love and affection. It is
often a process fraught with many obstacles, both emotional and
financial. I have nothing but the greatest respect and admiration for
adoptive parents. This legislation will provide adoptive parents with
the security they sometimes lack under current law. The bill will
provide what many have complained of: finality and security in cases
involving Indian children. For the past several years, there have been
highly publicized cases involving Indian children and what some felt
were late interventions by tribes in these proceedings.
By strengthening the procedures of ICWA this bill will make cases
like the ones we saw last year a thing of the past. Parties seeking
placement of Indian children would be required to file detailed notices
with the tribe that includes biographical information on the child, as
well as information regarding the rights of the tribe in responding to
the notice. With the notice in hand, the
[[Page S3123]]
tribe must decide if it wants to intervene or not, and to inform the
party seeking placement of its intentions.
By requiring tribes to file written notice of intervention and
providing time limits within which tribes can intervene in proceedings,
adoptive parents can be assured that they will not face the prospect of
having final or near final. These procedural demands are not unduly
burdensome and fall equally on both the parties seeking placement and
tribal governments.
The truth is that many of these inflammatory and well-publicized
cases involved unethical attorneys and other adoption professionals who
advised their Indian clients to conceal or not reveal their Indian
heritage in an effort to expedite the adoption. Because ICWA-related
adoptions and proceedings involve procedural requirements, some
attorneys and professionals seek to cut corners and save time and
money. Not only is this shortsighted, but is damaging to all parties
involved in an adoption or custody proceeding.
By expediting these adoptions, the attorneys interests were served.
But what about the Indian children, Indian families, Indian tribes, and
non-Indian adoptive families?
As we have seen, these people have had to endure long, bitter, and
costly court battles some of which continue to this day. The
legislation we introduce today will provide tough civil and criminal
penalties to any person that willfully falsifies facts regarding
whether a child is Indian or whether a parent is Indian; makes false or
fraudulent statements; or falsifies documents containing facts related
to the proceeding.
These provisions are not radical notions. They simply provide that if
you are involved in an ICWA-related proceeding, and if you do not want
to lose your money and your freedom, follow the law. No good adoption
attorney worth his salt will fear these penalties if he or she follows
the law and is forthright with the facts.
I urge my colleagues to join in enacting this crucial legislation to
bring stability and certainty to adoptions and other proceedings
involving Indian children.
______
By Mr. NICKLES (for himself, Mr. Breaux, Mr. Mack, Mr. Baucus,
Mr. D'Amato, Mr. Bond, Mr. DeWine, Mr. Cochran, Mr. Enzi, Mr.
Hagel, and Mr. Thomas):
S. 570. A bill to amend the Internal Revenue Code of 1986 to exempt
certain small businesses from the mandatory electronic fund transfer
system; to the Committee on Finance.
MANDATORY ELECTRONIC FUND TRANSFER SYSTEM LEGISLATION
Mr. NICKLES. Mr. President, today, I am introducing legislation with
my colleague from Louisiana, Senator Breaux, to address the ever-
recurring problem of Federal mandates on small business. Our bill will
prohibit the Internal Revenue Service from forcing thousands of small
businesses to deposit payroll taxes by electronic funds transfer under
threat of penalty. In addition to Senator Breaux, I would like to thank
several other Senators who have agreed to cosponsor this legislation,
including Senator Mack, Senator Baucus, Senator D'Amato, Senator Bond,
Senator DeWine, Senator Cochran, and Senator Enzi.
Legislation enacted in 1993 to implement the North American Free-
Trade Agreement directed the IRS to begin collecting a progressively
larger percentage of payroll tax deposits from employers by electronic
funds transfer, in lieu of the Federal tax deposit coupon system.
Congress' intent was to simplify the tax deposit system and reduce
paperwork for taxpayers, financial institutions, and the IRS. The
Senate report accompanying this bill recommended that the
implementation of this mandate not create hardships for small
businesses, and that no small business should be required to purchase
computers or gain access to any electronic equipment other than a
touch-tone telephone. Further, the report urged Treasury to take into
account the specific needs of small employers, including possible
exemption for the very smallest businesses from the electronic deposit
system.
Unfortunately, the IRS has done little to mitigate the impact on
small business. Instead, they sent notices to 1.2 million small
businesses last summer stating that they must begin using the new
electronic Federal tax payment System, or EFTPS, to make payroll tax
deposits on January 1, 1997. Further, the IRS told these taxpayers that
continued use of the Federal tax deposit coupon system would result in
penalties equal to 10 percent of each deposit. The IRS targeted this
mandate on any business which deposited more than $50,000 in payroll
taxes in 1995. Prior to this time, the threshold for mandatory
electronic deposits was $47 million. If the IRS is not stopped, Mr.
President, the threshold will drop to $20,000 next year.
The reaction from the small business community to this mandate last
year was adverse and vocal, Mr. President. Fortunately, Congress acted
to delay the EFTPS mandate until July 1, 1997. However, that date is
quickly approaching, and thousands of small business owners are no more
comfortable with the mandate now than they were last year. Business
owners who have used the coupon system for years to diligently pay
their taxes on time are incensed to learn that they can be forced from
that system against their will. Some fear IRS access to their bank
accounts, and others fear the additional costs which may arise if their
bank begins charging fees for these transactions. Finally, many small
businesses are discovering that their current bank does not participate
fully in the electronic transaction system.
Mr. President, small business owners should not have a new tax
deposit system forced down their throats without alternatives and
without enough time or information to make an orderly transition to the
new system. Further, they should not be forced to incur fees or other
additional costs in order to pay their taxes. While I agree that many
taxpayers will come to prefer an electronic deposit system, I do not
believe such a change should be mandated under threat of penalty. If a
small business prefers to use the coupon system and continues to pay
their taxes on time, they should not be penalized for doing so.
Mr. President, the legislation Senator Breaux and I are introducing
today will phase in the requirement to pay depository taxes
electronically in manageable increments and exempt most small
businesses permanently. Under our bill, only businesses who annually
deposit over $5 million in payroll taxes will ever be mandated to use
the electronic deposit system. Further, the bill directs the Secretary
of the Treasury to establish a program to encourage all business
taxpayers to voluntarily participate in the electronic deposit system.
Enactment of this legislation will free small business owners from
yet another heavyhanded Federal mandate and preserve their right to pay
their taxes in a manner which best suits their business needs. I
encourage all Senators to join in this effort.
Mr. President, again I wish to thank the Presiding Officer of the
Senate at this time, the Senator from Wyoming, for cosponsoring this
legislation. I also ask unanimous consent that Senator Hagel be added
as an original cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, to summarize again for the benefit of my
colleagues, effective July 1, if we do not change this current--I
started to say ``law,'' but this is not a law. The IRS came up with a
regulation. We passed a law. Congress passed a law that says we want to
encourage electronic fund transfers of payroll taxes. A good idea. It
makes sense. It will work for a lot of people.
IRS, to implement this, and maybe with some direction of Congress--
Congress said put most of the taxpayers in. The IRS did so, and then
they came up with a 10-percent penalty. That is a big inducement,
encouragement. Congress did not put on the 10-percent penalty; the IRS
did--it puts a gun to the taxpayer's head--and then said, ``You have to
do this.'' Then they said, ``This is not too much of a challenge for
bigger employers.'' As a matter of fact, the current requirement, the
threshold is $47 million of payroll taxes. If you have payroll taxes of
$47 million, that is a big operation. And they are doing that now. That
actually applies to 1,500 taxpayers in the country today.
The next threshold level drops from $47 million to $50,000. Now you
are talking about a lot of companies. You
[[Page S3124]]
are talking about a lot of businesses. You do not have to be very big
to have payroll taxes of $50,000. You might have total payroll of a
quarter of a million or $300,000. That deadline is July 1. It was to be
January 1. We postponed it for 6 months.
The legislation we have introduced today, it phases down the $47
million threshold to $30 million, to $10 million, to $5 million, and
says, ``If you have payroll taxes of less than $5 million, you do not
have to do this. You can still do it, you still have the option to do
it.''
I met with some representatives from the IRS. They said, ``We are
concerned, if we pass this legislation, a lot of people might not get
into the system. Maybe that would not be fair for the people already in
the system.''
I said I want them to have the option. In our legislation, we want to
encourage people to move into the electronic fund transfer. We think
that would be good. A lot of people pay their home notes--I do that.
When I pay my home mortgage, I do it by electronic fund transfer where
you used to have the coupon system. I am happy with that. I think a lot
of taxpayers will be happy paying payroll taxes this way, and we want
this to be an option.
We want to eliminate the 10-percent penalty for noncompliance,
especially for small business.
So that is what we have done. I ask unanimous consent Senator Thomas
also be included as an original cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, I ask unanimous consent to have printed
in the Record immediately following my statement a copy of this
legislation and, in addition to the legislation, a letter from the
Small Business Legislative Council and a letter from the National
Restaurant Association endorsing the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 570
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
(a) In General.--Section 6302(h)(2) of the Internal Revenue
Code of 1986 (relating to use of electronic fund transfer
system for collection of certain taxes) is amended to read as
follows:
``(2) Taxpayers subject to system.--
``(A) In general.--The regulations referred to in paragraph
(1) shall only require taxpayers to use the electronic funds
transfer system for a calendar year if the aggregate amount
of depository taxes of such taxpayer for the second preceding
calendar year exceeded the applicable dollar amount.
``(B) Applicable dollar amount.--For purposes of
subparagraph (A)--
``If the 2d preceding calendar year is:The applicable dollar amount is:
1995....................................................$47,000,000
1996.....................................................30,000,000
1997.....................................................20,000,000
1998.....................................................10,000,000
1999 or later............................................5,000,000.
``(C) Aggregation rule.--All persons treated as a single
employer under subsections (a) and (b) of section 52 shall be
treated as a single taxpayer for purposes of subparagraph
(A).
``(D) Voluntary compliance.--The Secretary shall encourage
taxpayers not described in subparagraph (A) to participate in
the electronic funds transfer system. The participation of
such taxpayers shall be voluntary.''
(b) Conforming Amendment.--Section 6302(h)(4) of such Code
is amended to read as follows:
``(4) Coordination with other electronic fund transfer
requirements.--Under regulations, any tax required to be paid
by electronic fund transfer under section 5061(e) or 5703(b)
shall be paid in such a manner as to ensure that the
requirements of the second sentence of paragraph (1)(A) are
met.''
(c) Reports.--The Secretary of the Treasury or his delegate
shall submit annual reports to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House
of Representatives. Such reports shall provide an analysis of
the progress being made in implementing the electronic funds
transfer system under section 6302(h) of the Internal Revenue
Code of 1986, including, but not limited to, information with
respect to--
(1) the number and nature of any penalties imposed on
taxpayers due to noncompliance with such system,
(2) any administrative efficiencies accruing to the Federal
Government by reason of such system, and
(3) the amount of any additional costs imposed on
businesses to comply with such system.
(d) Effective Date.--The amendments made by this section
shall apply to deposits required to be made on and after the
date of the enactment of this Act.
____
National Restaurant Association,
Washington, DC, April 14, 1997.
Senator Don Nickles,
Assistant Majority Leader,
Washington, DC.
Dear Senator Nickles: On behalf of the 770,000 restaurant
locations nationwide, we would like to thank you and Senator
Breaux for introducing legislation to help reduce the
regulatory burden on our nation's employers.
As part of a revenue-raising provision in NAFTA, our
members were mandated to begin filing payroll taxes
electronically over a five year phase-in period. Starting
July 1, all businesses that deposit over $50,000 in federal
payroll taxes will have to start wiring their tax deposits to
the Internal Revenue Service. This is the first phase-in that
will truly affect the small businesses, including thousands
of restaurant owners. For months, the National Restaurant
Association and other employer groups have been warning the
government that many businesses don't know about the mandate
and could face penalties beginning in July for not complying.
We strongly support this bipartisan legislation which will
allow small businesses the option of filing electronically,
and will provide a reasonable phase-in of the mandate for
larger businesses. Thank you for your leadership on this
issue.
Sincerely,
Elaine Z. Graham,
Senior Vice President,
Government Affairs and Membership.
Kathleen O'Leary,
Legislative Representative.
____
Small Business
Legislative Council,
Washington, DC, April 14, 1997.
Hon. Don Nickles,
U.S. Senate,
Washington, DC.
Dear Senator Nickles: On behalf of the members of the Small
Business Legislative Council (SBLC), I wish to commend your
efforts to address the concerns of the small business
community with respect to the Electronic Federal Tax Payment
System (EFTPS).
The EFTPS has proven to be a source of great frustration
for us. On one hand, we applaud the movement towards an
electronic funds transfer system. Any small business owner
can vouch for the inherent flaws in the current paper coupon-
based deposit system. Errors and inadvertent late payments
are still all too frequent. And, while the IRS has become
more reasonable in ultimately absolving small businesses of
blame, it is difficult to turn off the IRS paper spigot. It
can take several unnecessary exchanges to resolve the
problem.
The electronic age is upon us and, ultimately, most small
businesses will embrace it fully. But the small business
community is not ready yet and, more importantly, neither is
the technology and structure to implement this concept. As
you know, we secured one delay in implementation in the hopes
everything would work out.
It appears we still have a long way to go, and until such
time as the small business community's confidence is secured,
it appears a voluntary approach is in everyone's best
interest. If the technology does work, it would seem foolish
for small business' owners not to embrace it. But, rather
than work everyone up into a ``tizzy'' as each new deadline
approaches, it may be better to take the longer view, and
make sure everyone comes on-board at their own pace and
comfort level. We'd rather see the program make it on its own
merits. And it does have merit, if done properly.
Therefore, we support your effort. Once again, you have
demonstrated your strong commitment to small business.
As you know, The Small Business Legislative Council (SBLC)
is a permanent, independent coalition of nearly one hundred
trade and professional associations that share a common
commitment to the future of small business. Our members
represent the interests of small businesses in such diverse
economic sectors as manufacturing, retailing, distribution,
professional, and technical services, construction,
transportation, tourism, and agriculture. For your
information, a list of our members is enclosed.
Sincerely,
Benhamin Y. Cooper,
Chairman.
Mr. BAUCUS. Mr. President, I am very pleased today to join my
colleagues Senator Nickles and Senator Breaux in introducing
legislation to help support America's small businesses. This bill will
address the problem created for the small business community by the
Internal Revenue Services' requirement that they convert to a system of
depositing payroll taxes by electronic funds transfer.
IRS has been implementing legislation directing the agency to begin
collecting a progressively larger percentage of Federal tax deposits
from employers by electronic funds transfer, rather than the current
Federal tax deposit coupon system. The intent behind the legislation
was to simplify the tax
[[Page S3125]]
deposit system and reduce paperwork for taxpayers, financial
institutions, and the Internal Revenue Service itself. The Senate
report accompanying the bill recommended that the implementation of
this mandate not create hardships for small businesses, and that no
small business should be required to purchase computers or gain access
to any electronic equipment other than a touch-tone telephone. The
report also urged Treasury to take into account the specific needs of
small employers, including possible exemption for the very smallest
businesses from the electronic deposit system.
We do not believe the Treasury Department has accomplished this goal.
While a timetable for compliance has been established, there is little
evidence that the concerns of the small business community have been
alleviated as July 1, 1997, the deadline for implementation, draws
near. Business owners who have used the coupon system for years to
diligently pay their taxes on time do not understand why they are being
required to convert to an electronic funds transfer system. Many small
business owners I have spoken with in Montana fear IRS access to their
bank accounts, particularly in light of recent reported incidences of
IRS employee browsing through taxpayer records without a valid reason.
Other small business owners are concerned, and not unreasonably, that
banks may begin charging fees for these transactions, adding to their
costs of doing business. Finally, many small businesses are discovering
that their current banks do not even participate fully in the
electronic transfer system, forcing them to find a new bank through
which to send in their deposit payments.
Mr. President, I agree with my colleagues that small businesses have
not been given enough time or information to make an orderly transition
to the new electronic funds transfer system. I also agree that they
should not be required to pay a fee in order to pay their taxes. The
bill we are introducing today will exempt businesses who annually
deposit under $5 million in payroll taxes from the electronic payment
requirement permanently, and phase it in for the rest at a much more
manageable rate.
I believe this bill will preserve the right of small business owners
to pay their taxes in a manner which best suites their business needs.
I commend Senators Nickels and Breaux for the work they have done on
this bill, and encourage our other colleagues to join in our effort.
______
By Mr. REID:
S. 571. A bill to establish a uniform poll closing time throughout
the continental United States for Presidential general elections; to
the Committee on Rules and Administration.
the uniform poll closing act of 1997
Mr. REID. Mr. President, today I am introducing legislation which
will set a uniform poll closing time for the continental United States.
Election officials and political scientists for years have believed
that early announcements, based on exit polls, discourage thousands of
people from voting and affect the outcome of close races for other
Federal, State and local offices. Less than 50 percent of eligible
voters actually voted last year. As public officials, we have a
responsibility to do everything we can to encourage voting, not
dissuade it. Uniform poll closing times is a step in this direction.
We are all aware that the controversy over early network projections
is not a new one. Senator Barry Goldwater introduced a bill after the
1960 election prohibiting radio broadcast of any Presidential election
returns until after midnight on election day. Network predictions 4
years later of Goldwater's landslide loss, and of Richard Nixon's
landslide victory in 1972, spawned several Senate bills to muzzle radio
and television. But none were enacted.
In 1980, when new technology made it unnecessary for networks to wait
for actual returns, the furor over early projections was brought to its
highest pitch. In that year, voters in the West were told at 5 p.m.,
hours before their polls closed, who the next President of the United
States would be. The three major networks trumpeted Ronald Reagan's
victory long before the polls had closed in their States. After the
election, our colleagues, Representatives Tim Wirth and Al Swift began
a congressional search for a way to prevent early calls of elections.
Numerous ideas were discussed as solutions to the problem of early
projections based on exit polls, but there was no consensus. In
addition to uniform poll closing times, shifting election day to
Sunday, spreading voting over 2 days, making election day a national
holiday and forbidding the networks from issuing predictions were
proposed. Of course the best solution would be voluntary restraint on
the part of the networks, but that has proven to be a failure.
My legislation simply states that each polling place in the
continental United States must close, with respect to a Presidential
general election, at 10 p.m. eastern standard time. This means the
polls with close at 7 p.m. Pacific time, 8 p.m. mountain time and 9
p.m. central time. I do not believe these times are unreasonable. It is
my hope that this legislation will revive the debate over the use of
exit polls. I welcome my colleagues to work with me for a solution.
____________________