[Congressional Record Volume 143, Number 58 (Wednesday, May 7, 1997)]
[Senate]
[Pages S4106-S4115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HAGEL:
S. 709. A bill to protect private property rights guaranteed by the
fifth amendment to the Constitution by requiring Federal agencies to
prepare private property taking impact analyses and by allowing
expanded access to Federal courts; to the Committee on Governmental
Affairs.
THE PRIVATE PROPERTY FAIRNESS ACT OF 1997
Mr. HAGEL. Mr. President, I rise today to introduce the Private
Property Fairness Act of 1997. This bill will
[[Page S4107]]
help ensure that when the Government issues regulations for the benefit
of the public as a whole, it does not saddle just a few landowners with
the whole cost of compliance. This bill will help enforce the U.S.
Constitution's guarantee that the Federal Government cannot take
private property without paying just compensation to the owner.
The dramatic growth in Federal regulation in recent decades has
focused attention on a very murky area of property law, a regulatory
area in which the law of takings is not yet settled to the satisfaction
of most Americans.
The bottom line is that the law in this area is unfair. For example,
if the Government condemns part of a farm to build a highway, it has to
pay the farmer for the value of his land. But if the Government
requires that same farmer stop growing crops on that same land in order
to protect endangered species or conserve wetlands, the farmer gets no
compensation. In both situations the Government has acted to benefit
the general public and, in the process, has imposed a cost on the
farmer. In both cases, the land is taken out of production and the
farmer loses income. But only in the highway example is the farmer
compensated for his loss. In the regulatory example, the farmer, or any
other landowner, has to absorb all of the cost himself. This is not
fair.
The legislation I am introducing today is an important step toward
providing relief from these so-called regulatory takings. I know my
distinguished colleague, Senator Hatch, intends to introduce an omnibus
private property rights bill, and I look forward to working with him.
My bill is a narrowly tailored approach that will make a real
difference for property owners across America. It protects private
property rights in two ways. First, it puts in place procedures that
will stop or minimize takings by the Federal Government before they
occur. The Government would have to jump a much higher hurdle before it
can restrict the use of someone's privately owned property. For the
first time, the Federal Government will have to determine in advance
how its actions will impact the property owner, not just the wetland or
the endangered species. This bill also would require the Federal
Government to look for options other than restricting the use of
private property to achieve its goal.
Second, if heavy Government regulations diminish the value of private
property, this bill would allow the landowners to plead their case in a
Federal district court, instead of forcing them into the U.S. Court of
Federal Claims. This means, for example, that Nebraskans can have their
case heard in a Nebraska courthouse; they won't have to travel to
Washington, DC, at their own expense to seek relief. This bill makes
the process easier, less costly, and more accessible and accountable so
all citizens can fully protect their property rights.
For too long, Federal regulators have made private property owners
bear the burdens and the costs of Government land use decisions. The
result has been that real people suffer.
Joe Jeffrey is a farmer in Lexington, NE. Like most Americans, he is
proud of his land. He believed his property was his to use and control
as he saw fit.
Then he met the U.S. Fish and Wildlife Service and the Army Corps of
Engineers.
In 1987, the long arm of the Federal bureaucracy reached onto Mr.
Jeffrey's property in the form of wetlands regulations. Mr. Jeffrey was
notified that he had to destroy two dikes on his land because they were
constructed without the proper permits. Nearly 2 years later, the corps
partially changed its mind and allowed Mr. Jeffrey to reconstruct one
of the dikes because the corps lacked authority to make him destroy it
in the first place.
Then floods damaged part of Mr. Jeffrey's irrigated pastureland and
changed the normal water channel. Mr. Jeffrey set out to return the
channel to its original course by moving sand that the flood had
shifted. But the Government said ``no.'' The corps told him he had to
give public notice before he could repair his own property.
Then came the Endangered Species Act.
Neither least terns nor piping plovers--both federally protected
endangered species--have ever nested on Mr. Jeffrey's property. But
that didn't stop the regulators. The U.S. Fish and Wildlife Service
wanted to designate Mr. Jeffrey's property as ``critical habitat'' for
these protected species.
The bureaucrats could not even agree among themselves on what they
wanted done. The Nebraska Department of Environmental Control wanted
the area re-vegetated. But the U.S. Fish and Wildlife Service wanted
the area kept free of vegetation. Mr. Jeffrey was caught in the middle.
This is a real regulatory horror story. And there's more.
Today--10 years after his regulatory struggle began--Mr. Jeffrey is
faced with eroded pastureland that cannot be irrigated and cannot be
repaired without significant personal expense. The value of Mr.
Jeffrey's land has been diminished by the Government's regulatory
intrusion--but he has not been compensated. In fact, he has had to
spend money from his own pocket to comply with the regulations. The
Fish and Wildlife Service asked Mr. Jeffrey to modify his center pivot
irrigation system to negotiate around the eroded area--at a personal
cost of $20,000. And the issue is still not resolved.
Mr. President, we do not need more stories like Joe Jeffrey's in
America. Our Constitution guarantees our people's rights. Congress must
act to uphold those rights and guarantee them in practice, not just in
theory. Government regulation has gone too far. We must make it
accountable to the people. Government should be accountable to the
people, not the people accountable to the Government.
What this issue comes down to is fairness. It is simply not fair and
it is not right for the Federal Government to have the ability to
restrict the use of privately owned property without compensating the
owner. It violates the principles this country was founded on. This
legislation puts some justice back into the system. It reins in
regulatory agencies and gives the private property owner a voice in the
process. It makes it easier for citizens to appeal any restrictions
imposed on their land or property. It is the right thing to do. It is
the just and fair thing to do.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 709
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 ``Private Property Rights Act
of 1997''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the ownership of private property plays an important
role in the economic and social well-being of the Nation;
(2) the protection of private property from a taking by the
Government without just compensation is an integral
protection for private citizens incorporated into the United
States Constitution by the fifth amendment and made
applicable to the States by the fourteenth amendment;
(3) Federal agency actions that restrict the use of private
property and result in a significant diminution in value of
such property constitute a taking of that property and should
be properly compensated;
(4) Federal agencies should consider the impact of agency
actions, including regulations, on the use and ownership of
private property; and
(5) owners of private property that is taken by a Federal
agency action should be permitted to seek relief in Federal
district court.
SEC. 3. STATEMENT OF POLICY.
The policy of the Federal Government is to protect the
health, safety, and general welfare of the public in a manner
that, to the extent practicable, avoids takings of private
property.
SEC. 4. DEFINITIONS.
For purposes of this Act--
(1) the term ``agency'' means a department, agency,
independent agency, or instrumentality of the United States,
including any military department, Government corporation,
Government-controlled corporation, or other establishment in
the executive branch of the United States Government;
(2) the term ``agency action'' means any action, inaction,
or decision taken by an agency and includes such an action,
inaction, or decision taken by, or pursuant to--
(A) a statute, rule, regulation, order, guideline, or
policy; or
(B) the issuance, denial, or suspension of any permit,
license, or authorization;
(3) the term ``owner'' means the person with title,
possession, or other property rights in property affected by
any taking of such property; and
(4) the term ``taking of private property'' means any
action whereby private property is taken in such a way as to
require compensation under the fifth amendment to the United
States Constitution.
[[Page S4108]]
SEC. 5. REQUIREMENT FOR PRIVATE PROPERTY TAKING IMPACT
ANALYSIS.
(a) In General.--To the fullest extent possible--
(1) the policies, regulations, and public laws of the
United States shall be interpreted and administered in
accordance with the policies under this Act; and
(2) subject to subsection (b), each agency shall complete a
private property taking impact analysis before taking any
agency action (including the promulgation of a regulation)
which is likely to result in a taking of private property.
(b) Nonapplication.--Subsection (a)(2) shall not apply to--
(1) an action in which the power of eminent domain is
formally exercised;
(2) an action taken--
(A) with respect to property held in trust by the United
States; or
(B) in preparation for, or in connection with, treaty
negotiations with foreign nations;
(3) a law enforcement action, including seizure, for a
violation of law, of property for forfeiture or as evidence
in a criminal proceeding;
(4) a communication between an agency and a State or local
land-use planning agency concerning a planned or proposed
State or local activity that regulates private property,
regardless of whether the communication is initiated by an
agency or is undertaken in response to an invitation by the
State or local authority;
(5) the placement of a military facility or a military
activity involving the use of solely Federal property;
(6) any military or foreign affairs function (including a
procurement function under a military or foreign affairs
function), but not including the civil works program of the
Army Corps of Engineers; and
(7) any case in which there is an immediate threat to
health or safety that constitutes an emergency requiring
immediate response or the issuance of a regulation under
section 553(b)(B) of title 5, United States Code, if the
taking impact analysis is completed after the emergency
action is carried out or the regulation is published.
(c) Content of Analysis.--A private property taking impact
analysis shall be a written statement that includes--
(1) the specific purpose of the agency action;
(2) an assessment of the likelihood that a taking of
private property will occur under such agency action;
(3) an evaluation of whether such agency action is likely
to require compensation to private property owners;
(4) alternatives to the agency action that would--
(A) achieve the intended purposes of the agency action; and
(B) lessen the likelihood that a taking of private property
will occur; and
(5) an estimate of the potential liability of the Federal
Government if the Government is required to compensate a
private property owner as a result of the agency action.
(d) Submission to OMB.--Each agency shall provide the
analysis required under this section as part of any
submission otherwise required to be made to the Office of
Management and Budget relating to an agency action.
(e) Public Availability of Analysis.--An agency shall--
(1) make each private property taking impact analysis
available to the public; and
(2) to the greatest extent practicable, transmit a copy of
such analysis to the owner and any other person with a
property right or interest in the affected property.
SEC. 6. ALTERNATIVES TO TAKING OF PRIVATE PROPERTY.
Before taking any final agency action, the agency shall
fully consider alternatives described in section 5(c)(4) and
shall, to the maximum extent practicable, alter the action to
avoid or minimize the taking of private property.
SEC. 7. CIVIL ACTION.
(a) Standing.--If an agency action results in the taking of
private property, the owner of such property may obtain
appropriate relief in a civil action against the agency that
has caused the taking to occur.
(b) Jurisdiction.--Notwithstanding sections 1346 or 1491 of
title 28, United States Code--
(1) a civil action against the agency may be brought in
either the United States District Court in which the property
at issue is located or in the United States Court of Federal
Claims, regardless of the amount in controversy; and
(2) if property is located in more than 1 judicial
district, the claim for relief may be brought in any district
in which any part of the property is located.
SEC. 8. GUIDANCE AND REPORTING REQUIREMENTS.
(a) Guidance.--The Attorney General shall provide legal
guidance in a timely manner, in response to a request by an
agency, to assist the agency in complying with this Act.
(b) Reports.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act and at the end of each 1-year period
thereafter, each agency shall submit a report to the Director
of the Office of Management and Budget and the Attorney
General that identifies--
(A) each agency action that has resulted in the preparation
of a taking impact analysis;
(B) the filing of a taking claim; and
(C) any award of compensation pursuant to the just
compensation clause of the fifth amendment to the
Constitution.
(2) Publication of reports.--The Director of the Office of
Management and Budget and the Attorney General shall publish
in the Federal Register, on an annual basis, a compilation of
the reports of all agencies made under this paragraph.
SEC. 9. PRESUMPTIONS IN PROCEEDINGS.
For the purpose of any agency action or administrative or
judicial proceeding, there shall be a rebuttable presumption
that the costs, values, and estimates in any private property
takings impact analysis shall be outdated and inaccurate,
if--
(1) such analysis was completed 5 years or more before the
date of such action or proceeding; and
(2) such costs, values, or estimates have not been modified
within the 5-year period preceding the date of such action or
proceeding.
SEC. 10. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to--
(1) limit any right or remedy, constitute a condition
precedent or a requirement to exhaust administrative
remedies, or bar any claim of any person relating to such
person's property under any other law, including claims made
under this Act, section 1346 or 1402 of title 28, United
States Code, or chapter 91 of title 28, United States Code;
or
(2) constitute a conclusive determination of--
(A) the value of any property for purposes of an appraisal
for the acquisition of property, or for the determination of
damages; or
(B) any other material issue.
SEC. 11. EFFECTIVE DATE.
This Act shall take effect 120 days after the date of
enactment of this Act.
______
By Mr. BREAUX (for himself, Mr. Bryan, Mr. D'Amato, and Mr.
Frist):
S. 711. A bill to amend the Internal Revenue Code of 1986 to simplify
the method of payment of taxes on distilled spirits; to the Committee
on Finance.
the distilled spirits tax payment simplification act of 1997
Mr. BREAUX. Mr. President, I rise today with Mr. Bryan, Mr. D'Amato
and Mr. Frist to introduce the Distilled Spirits Tax Payment
Simplification Act of 1997, a bill more readily known as All-in-Bond.
This bill would streamline the way in which the government collects
federal excise tax on distilled spirits by extending the current system
of collection now applicable only to imported products to domestic
products as well.
Today wholesalers purchase foreign bottled distilled spirits in
bond--tax free--paying the Federal excise tax directly after sale to a
retailer. In contrast, when the wholesaler buys domestically bottled
spirits--nearly 86 percent of total inventory--the price includes the
Federal excise tax, pre-paid by the distiller. This means that hundreds
of U.S. family-owned wholesale businesses increase their inventory
carrying costs by 40 percent when buying U.S. products, which often
have to be financed through borrowing.
Under my bill, wholesalers would be allowed to purchase domestically
bottled distilled spirits in-bond from distillers just as they are now
permitted to purchase foreign produced spirits. Products would become
subject to tax on removal from wholesale premises. This legislation is
designed to be revenue neutral and includes the requirement that any
wholesaler electing to purchase spirits in bond must make certain
estimated tax payments to Treasury before the end of the fiscal year.
All-in-Bond is an equitable and sound way to streamline our tax
collection system. I hope my colleagues will join me in cosponsoring
this important legislation.
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. 711
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE.
(a) Short Title.--This Act may be cited as the ``Distilled
Spirits Tax Payment Simplification Act of 1997''.
(b) Reference to 1986 Code.--Except as otherwise expressly
provided, whenever 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 Internal Revenue Code of
1986.
SEC. 2. TRANSFER OF DISTILLED SPIRITS BETWEEN BONDED
PREMISES.
(a) In General.--Section 5212 is amended to read as
follows:
[[Page S4109]]
``SEC. 5212. TRANSFER OF DISTILLED SPIRITS BETWEEN BONDED
PREMISES.
``Distilled spirits on which the internal revenue tax has
not been paid as authorized by law may, under such
regulations as the Secretary shall prescribe, be transferred
in bond between bonded premises in any approved container.
For the purposes of this chapter, except in the case of any
transfer from a premise of a bonded dealer, the removal of
distilled spirits for transfer in bond between bonded
premises shall not be construed to be a withdrawal from
bonded premises.''.
(b) Conforming Amendment.--The first sentence of section
5232(a) (relating to transfer to distilled spirits plant
without payment of tax) is amended to read as follows:
``Distilled spirits imported or brought into the United
States, under such regulations as the Secretary shall
prescribe, may be withdrawn from customs custody and
transferred to the bonded premises of a distilled spirits
plant without payment of the internal revenue tax imposed on
such distilled spirits.''.
SEC. 3. ESTABLISHMENT OF DISTILLED SPIRITS PLANT.
Section 5171 (relating to establishment) is amended--
(1) in subsection (a), by striking ``or processor'' and
inserting ``processor, or bonded dealer'';
(2) in subsection (b), by striking ``or as both'' and
inserting ``as a bonded dealer, or as any combination
thereof'';
(3) in subsection (e)(1), by inserting ``, bonded dealer,''
before ``processor''; and
(4) in subsection (e)(2), by inserting ``bonded dealer,''
before ``or processor''.
SEC. 4. DISTILLED SPIRITS PLANTS.
Section 5178(a) (relating to location, construction, and
arrangement) is amended by adding at the end the following:
``(5) Bonded dealer operations.--Any person establishing a
distilled spirits plant to conduct operations as a bonded
dealer may, as described in the application for
registration--
``(A) store distilled spirits in any approved container on
the bonded premises of such plant, and
``(B) under such regulations as the Secretary shall
prescribe, store taxpaid distilled spirits, beer, and wine,
and such other beverages and items (products) not subject to
tax or regulation under this title on such bonded
premises.''.
SEC. 5. BONDED DEALERS.
(a) Definitions.--Section 5002(a) (relating to definitions)
is amended by adding at the end the following:
``(16) Bonded Dealer.--The term `bonded dealer' means any
person who has elected under section 5011 to be treated as a
bonded dealer.
``(17) Control State Entity.--The term `control State
entity' means a State, a political subdivision of a State, or
any instrumentality of such a State or political subdivision,
in which only the State, political subdivision, or
instrumentality is allowed under applicable law to perform
distilled spirit operations.''.
(b) Election To Be Treated as a Bonded Dealer.--Subpart A
of part I of subchapter A of chapter 51 (relating to
distilled spirits) is amended by adding at the end the
following:
``SEC. 5011. ELECTION TO BE TREATED AS BONDED DEALER.
``(a) Election.--Any wholesale dealer or any control State
entity may elect, at such time and in such manner as the
Secretary shall prescribe, to be treated as a bonded dealer
if such wholesale dealer or entity sells bottled distilled
spirits exclusively to a wholesale dealer in liquor, to an
independent retail dealer subject to the limitation set forth
in subsection (b), or to another bonded dealer.
``(b) Limitation in Case of Sales to Retail Dealers.--
``(1) By bonded dealer.--Any person, other than a control
State entity, who is a bonded dealer shall not be considered
as selling to an independent retail dealer if--
``(A) the bonded dealer has a greater than 10 percent
ownership interest in, or control of, the retail dealer;
``(B) the retail dealer has a greater than 10 percent
ownership interest in, or control of, the bonded dealer; or
``(C) any person has a greater than 10 percent ownership
interest in, or control of, both the bonded and retail
dealer.
For purposes of this paragraph, ownership interest, not
limited to stock ownership, shall be attributed to other
persons in the manner prescribed by section 318.
``(2) By control state entity.--In the case of any control
State entity, subsection (a) shall be applied by substituting
`retail dealer' for `independent retail dealer'.
``(c) Inventory Owned at Time of Election.--Any bottled
distilled spirits in the inventory of any person electing
under this section to be treated as a bonded dealer shall, to
the extent that the tax under this chapter has been
previously determined and paid at the time the election
becomes effective, not be subject to such additional tax on
such spirits as a result of the election being in effect.
``(d) Revocation of Election.--The election made under this
section may be revoked by the bonded dealer at any time, but
once revoked shall not be made again without the consent of
the Secretary. When the election is revoked, the bonded
dealer shall immediately withdraw the distilled spirits on
determination of tax in accordance with a tax payment
procedure established by the Secretary.
``(e) Equitable Treatment of Bonded Dealers Using LIFO
Inventory.--The Secretary shall provide such rules as may be
necessary to assure that taxpayers using the last-in, first-
out method of inventory valuation do not suffer a recapture
of their LIFO reserve by reason of making the election under
this section or by reason of operating a bonded wine cellar
as permitted by section 5351.
``(f) Approval of Application.--Any person submitting an
application under section 5171(c) and electing under this
section to be treated as a bonded dealer shall be entitled to
approval of such application to the same extent such person
would be entitled to approval of an application for a basic
permit under section 104(a)(2) of the Federal Alcohol
Administration Act (27 U.S.C 204(a)(2)), and shall be
accorded notice and hearing as described in section 104(b) of
such Act (27 U.S.C. 204(b)).''.
(c) Conforming Amendment.--The tables of sections of
subpart A of part I of subchapter A of chapter 51 is amended
by adding at the end the following:
``Sec. 5011. Election to be treated as bonded dealer.''.
SEC. 6. DETERMINATION OF TAX.
The first sentence of section 5006(a)(1) (relating to
requirements) is amended to read as follows: ``Except as
otherwise provided in this section, the tax on distilled
spirits shall be determined when the spirits are transferred
from a distilled spirits plant to a bonded dealer or are
withdrawn from bond.''.
SEC. 7. LOSS OR DESTRUCTION OF DISTILLED SPIRITS.
Section 5008 (relating to abatement, remission, refund, and
allowance for loss or destruction of distilled spirits) is
amended--
(1) in subsections (a)(1)(A) and (a)(2), by inserting
``bonded dealer,'' after ``distilled spirits plant,'' both
places it appears;
(2) in subsection (c)(1), by striking ``of a distilled
spirits plant''; and
(3) in subsection (c)(2), by striking ``distilled spirits
plant'' and inserting ``bonded premises''.
SEC. 8. TIME FOR COLLECTING TAX ON DISTILLED SPIRITS.
(a) In General.--Section 5061(d) (relating to time for
collecting tax on distilled spirits, wines, and beer) is
amended by redesignating paragraph (5) as paragraph (6) and
by inserting after paragraph (4) the following:
``(5) Advanced payment of distilled spirits tax.--
Notwithstanding the preceding provisions of this subsection,
in the case of any tax imposed by section 5001 with respect
to a bonded dealer who has an election in effect on September
20 of any year, any payment of which would, but for this
paragraph, be due in October or November of that year, such
payment shall be made on such September 20. No penalty or
interest shall be imposed for the period from such September
20 until the due date determined without regard to this
paragraph to the extent that tax due exceeds the tax which
would have been due with respect to distilled spirits in the
preceding October and November had the election under section
5011 been in effect.''.
(b) Conforming Amendment.--Section 5061(e)(1) (relating to
payment by electronic fund transfer) is amended by inserting
``or any bonded dealer,'' after ``respectively,''.
SEC. 9. EXEMPTION FROM OCCUPATIONAL TAX NOT APPLICABLE.
Section 5113(a) (relating to sales by proprietors of
controlled premises) is amended by adding at the end the
following: ``This subsection shall not apply to a proprietor
of a distilled spirits plant whose premises are used for
operations of a bonded dealer.''.
SEC. 10. CONFORMING AMENDMENTS.
(1) Section 5003(3) is amended by striking ``certain''.
(2) Section 5214 is amended by redesignating subsection (b)
as subsection (c) and by inserting after subsection (a) the
following:
``(b) Exception.--Paragraphs (1), (2), (3), (5), (10),
(11), and (12) of subsection (a) shall not apply to distilled
spirits withdrawn from premises used for operations as a
bonded dealer.''.
(3) Section 5215 is amended--
(A) in subsection (a), by striking ``the bonded premises''
and all that follows through the period and inserting
``bonded premises.'';
(B) in the heading of subsection (b), by striking ``a
Distilled Spirits Plant'' and inserting ``Bonded Premises'';
and
(C) in subsection (d), by striking ``a distilled spirits
plant'' and inserting ``bonded premises''.
(4) Section 5362(b)(5) is amended by adding at the end the
following: ``The term does not mean premises used for
operations as a bonded dealer.''.
(5) Section 5551(a) is amended by inserting ``bonded
dealer,'' after ``processor'' both places it appears.
(6) Subsections (a)(2) and (b) of section 5601 are each
amended by inserting ``, bonded dealer,'' before ``or
processor'' .
(7) Paragraphs (3), (4), and (5) of section 5601(a) are
each amended by inserting ``bonded dealer,'' before ``or
processor'' .
(8) Section 5602 is amended--
(A) by inserting ``, warehouseman, processor, or bonded
dealer'' after ``distiller''; and
(B) in the heading, by striking ``by distiller''.
(9) Sections 5115, 5180, and 5681 are repealed.
[[Page S4110]]
(10) The table of sections for part II of subchapter A of
chapter 51 is amended by striking the item relating to
section 5115.
(11) The table of sections for subchapter B of chapter 51
is amended by striking the item relating to section 5180.
(12) The item relating to section 5602 in the table of
sections for part I of subchapter J of chapter 51 is amended
by striking ``by distiller''.
(13) The table of sections for part IV of subchapter J of
chapter 51 is amended by striking the item relating to
section 5681.
SEC. 11. REGISTRATION FEES.
(a) General Rule.--The Director of the Bureau of Alcohol,
Tobacco, and Firearms shall, in accordance with this section,
assess and collect registration fees solely to defray a
portion of any net increased costs of regulatory activities
of the Government resulting from enactment of this Act.
(b) Persons Subject to Fee.--Fees shall be paid in a manner
prescribed by the Director by the bonded dealer.
(c) Amount and Timing of Fees.--Fees shall be paid annually
and shall not exceed $1,000 per bonded premise.
(d) Deposit and Credit.--The moneys received during any
fiscal year from fees described in subsection (a) shall be
deposited as an offsetting collection in, and credited to,
the account providing appropriations to conduct the
regulatory activities of the Government resulting from
enactment of this Act.
(e) Limitation.--The aggregate amount of fees assessed and
collected under this section may not exceed in any fiscal
year the aggregate amount of any net increased costs of
regulatory activity referred to in subsection (a).
SEC. 12. COOPERATIVE AGREEMENTS.
(a) Study.--The Secretary of the Treasury shall study and
report to Congress concerning possible administrative
efficiencies which could inure to the benefit of the Federal
Government of cooperative agreements with States regarding
the collection of distilled spirits excise taxes. Such study
shall include, but not be limited to, possible benefits of
the standardization of forms and collection procedures and
shall be submitted 1 year after the date of enactment of this
Act.
(b) Cooperative Agreement.--The Secretary of the Treasury
is authorized to enter into such cooperative agreements with
States which the Secretary deems will increase the efficient
collection of distilled spirits excise taxes.
SEC. 13. EFFECTIVE DATE.
(a) In General.--Except as provided in subsection (b), the
amendments made by this Act take effect on the date which is
120 days after the date of enactment of this Act.
(b) Exceptions.--
(1) Establishment of distilled spirits plant.--The
amendments made by section 3 take effect on the date of
enactment of this Act.
(2) Special rule.--Each wholesale dealer who is required to
file an application for registration under section 5171(c) of
the Internal Revenue Code of 1986 whose operations are
required to be covered by a basic permit under sections 103
and 104 of the Federal Alcohol Administration Act (27 U.S.C.
203, 204) and who has received such basic permits as an
importer, wholesaler, or as both, and has obtained a bond
required under subchapter B of chapter 51 of subtitle E of
such Code before the close of the fourth month following the
date of enactment of this Act, shall be qualified to operate
bonded premises until such time as the Secretary of the
Treasury takes final action on the application. Any control
State entity (as defined in section 5002(a)(17) of such Code,
as added by section 5(a)) that has obtained a bond required
under such subchapter shall be qualified to operate bonded
premises until such time as the Secretary of the Treasury
takes final action on the application for registration under
section 5171(c) of such Code.
______
By Mr. MOYNIHAN (for himself and Mr. Helms):
S. 712. A bill to provide for a system to classify information in the
interests of national security and a system to declassify such
information; to the Committee on Governmental Affairs.
THE GOVERNMENT SECRECY ACT OF 1997
Mr. MOYNIHAN. Mr. President, I am pleased to join with my colleague
from North Carolina, Senator Helms, in introducing the Government
Secrecy Act of 1997. Congressmen Larry Combest of Texas and Lee
Hamilton of Indiana are introducing companion legislation in the House
of Representatives this afternoon. The four of us, along with eight
other distinguished individuals, served for the past 2 years on the
Commission on Protecting and Reducing Government Secrecy.
Earlier today, the four of us testified together at a hearing of the
Committee on Governmental Affairs called by Chairman Thompson to review
the Commission's report, issued in March. The legislation that we
introduce today is intended to implement one of the core
recommendations of that Commission: The need for a statute establishing
the principles to govern the classification and declassification of
information. The remarks that follow track my testimony before the
Governmental Affairs Committee this morning.
We begin by defining our subject. ``Secrecy is a form of government
regulation.'' It can be understood in terms of a now considerable
literature concerning how organizations function. Begin with the German
scholar Max Weber, writing eight decades ago in his chapter
``Bureaucracy'' in ``Wirtschaft und Gesellschaft'' (Economy and
Society):
Every bureaucracy seeks to increase the superiority of the
professionally informed by keeping their knowledge and
intentions secret. Bureaucratic administration always tends
to be an administration of ``secret sessions''; in so far as
it can, it hides its knowledge and action from criticism. The
pure interest of the bureaucracy in power, however, is
efficacious far beyond those areas where purely functional
interests make for secrecy. The concept of the ``official
secret'' is the specific invention of bureaucracy, and
nothing is so fanatically defended by the bureaucracy as this
attitude, which cannot be substantially defended beyond these
specifically qualified areas.
Normal regulation concerns how citizens are to behave. As the
administrative state developed in the United States, beginning with the
Progressive Era at the turn of the century and expanding greatly under
the New Deal, legal scholars began to ask just what these new rules
were. Were they laws? If not, then what? In 1938, Roscoe Pound,
chairman of the American Bar Association's Special Committee on
Administrative Law and former Dean of the Harvard Law School, attacked
those ``who would turn the administration of justice over to
administrative absolutism . . . a Marxian idea,'' and inveighed against
those ``progressives, liberals, or radicals who desire to invest the
National Government with totalitarian powers in the teeth of
constitutional democracy . . .''
We managed to get a handle on that system, in no small measure
through the efforts of Erwin Griswold, also a dean of the Harvard Law
School, and others who decried the fact that administrative regulations
equivalent to law had become increasingly important to everyday life
and yet were not available to the public. One year after Professor
Griswold published a seminal article calling for the publication of
such rules and regulations, Congress enacted the Federal Register Act
of 1935. Eleven years later, in 1946, working from the recommendations
made in 1941 by the Attorney General's Committee on Administrative
Procedure, chaired by Dean Acheson, Congress enacted the Administrative
Procedure Act.
Thus, today our system of public regulation is public indeed.
Regulations are both widely accessible and subject to the APA's set of
procedural requirements--bringing a degree of order and accountability
to this regime.
Secrecy, by contrast, concerns what citizens may know, but the
citizen does not know what may not be known. Our Commission states:
Americans are familiar with the tendency to overregulate in
other areas. What is different with secrecy is that the
public cannot know the extent or the content of the
regulation.
Thus, secrecy is the ultimate mode of regulation; the citizen does not
even know that he or she is being regulated. It is a parallel
regulatory regime with a far greater potential for damage if it
malfunctions.
Flowing from this understanding of secrecy as regulation is the
recognition that, to paraphrase Justice Potter Stewart's opinion in the
Pentagon Papers case, when everything is secret, nothing is secret. We
state:
The best way to ensure that secrecy is respected, and that
the most important secrets remain secret, is for secrecy
to be returned to its limited but necessary role. Secrets
can be protected more effectively if secrecy is reduced
overall.
It is time to reexamine the foundations of that secrecy system. The
Information Security Oversight Office report to Congress last week
estimated the direct costs of secrecy at $5.2 billion in 1996 alone.
The same Office reports that in 1995 we had 21,871 original new top
secret designations and another 374,244 derivative top secret
designations. Meaning that, in a single year, roughly 400,000 new
secrets were created at the Top Secret level alone--the disclosure of
any one of which would cause exceptionally grave damage to the national
security.
It is also time to examine the appropriateness of security
arrangements
[[Page S4111]]
put in place during an earlier age, when the perceived threats were so
different from those of today. In 1957, the only previous commission
established by the Congress to examine the secrecy system--the
Commission on Government Security--issued a report that, for any number
of reasons--in particular the fact that its core recommendation that
amounted to prior restraint of the press--did nothing to change the
prevailing mode. Although the Commission did understand classification
as a cost; its report ``stresses the dangers to national security that
arise out of overclassification of information which retards scientific
and technological progress, and thus tend to deprive the country of the
lead time that results from the free exchange of ideas and
information.''
When the Commission on Government Security presented its report to
President Eisenhower and the Congress, we still were consumed with
concerns about a Federal Government infiltrated by ideological enemies
of the United States. Today, the public and its representatives have
few such concerns; indeed, today it is the U.S. Government that
increasingly is the object of what Edward Shils in 1956, in ``The
Torment of Secrecy,'' termed the ``phantasies of apocalyptic
visionaries.''
We are not proposing putting an end to secrecy. It is at times
terribly necessary and used for the most legitimate reasons. But
secrecy need not remain the only norm: We must develop a competing
culture of openness, fully consistent with our interests in protecting
national security, but in which power is no longer derived primarily
from one's ability to withhold information.
I am struck in this regard by a most remarkable letter that I
received on March 25 from George F. Kennan, professor emeritus at the
Institute for Advanced Study in Princeton, NJ, in response to our
Commission report. As lucid and thoughtful as ever at age 93, Professor
Kennan builds a compelling case for the proposition that much of our
secrecy system arose out of our efforts to penetrate the obsessively
secretive Soviet Communist regime of the Stalin era. And that the
system we put in place remains largely intact today, even as that
adversary has disappeared. Professor Kennan writes:
It is my conviction, based on some 70 years of experience,
first as a government official and then in the past 45 years
as an historian, that the need by our government for secret
intelligence about affairs elsewhere in the world has been
vastly over-rated. I would say that something upwards of 95%
of what we need to know about foreign countries could be very
well obtained by the careful and competent study of perfectly
legitimate sources of information open and available to us in
the rich library and archival holdings of this country.
I ask unanimous that the full text of Professor Kennan's letter be
inserted in the Record.
I should note further that Professor Kennan's conclusion about the
share of information available from open sources also has been reached
by other notable observers of the secrecy system--the estimable George
P. Shultz among them.
Developing a culture of openness within the Federal Government
requires that secrecy be defined in statute. A statute will not put an
end to overclassification and needless classification, but it will help
by ensuring that the present regulatory regime cannot simply continue
to flourish without any restraint. Classification should proceed
according to law; classifiers should know that they are acting lawfully
and properly. We need to balance the possibility of harm to national
security against the public's right to know what the Government is
doing, or not doing. We should establish by statute that secrecy
belongs in the realm of national security and must serve that interest
alone. It should not be employed as a badge of office or a status
symbol.
Thus we propose this statute, the Government Secrecy Act of 1997. As
noted, Representatives Combest and Hamilton are cosponsoring a
companion measure in the House of Representatives. This legislation--
defining the principles and standards to govern classification and
declassification, and establishing within an existing agency a National
Declassification Center to coordinate responsibility for declassifying
historical documents--is drawn directly from the Commission's
recommendation for such a statute, as set out in the summary and in
chapter I of our report.
I look forward to reviewing the legislation, as well as the other
findings and recommendations of the Commission, with Members of this
body, as well as our colleagues in the House of Representatives,
executive branch officials, and interested persons outside of
Government, in the weeks ahead.
I send the bill to the desk and ask unanimous consent that it be
printed in the Record and be referred to the appropriate committee.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 712
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 ``Government Secrecy Act of
1997''.
SEC. 2. PURPOSE.
It is the purpose of this Act to promote the effective
protection of classified information and the disclosure of
information where there is not a well-founded basis for
protection or where the costs of maintaining a secret
outweigh the benefits.
SEC. 3. FINDINGS.
The Congress makes the following findings:
(1) The system for classifying and declassifying national
security information has been based in regulation, not in
statute, and has been governed by six successive Executive
orders since 1951.
(2) The Commission on Protecting and Reducing Government
Secrecy, established under Public Law 103-236, issued its
report on March 4, 1997 (S. Doc. 105-2), in which it
recommended reducing the volume of information classified and
strengthening the protection of classified information.
(3) The absence of a statutory framework has resulted in
unstable and inconsistent classification and declassification
policies, excessive costs, and inadequate implementation.
(4) The implementation of Executive orders will be even
more costly as more documents are prepared and used on
electronic systems.
(5) United States taxpayers incur substantial costs as
several million documents are classified each year. According
to figures submitted to the Information Security Oversight
Office and the Congress, the executive branch and private
industry together spent more than $5.2 billion in 1996 to
protect classified information.
(6) A statutory foundation for the classification and
declassification of information is likely to result in a more
stable and cost-effective set of policies and a more
consistent application of rules and procedures.
(7) Enactment of a statute would create an opportunity for
greater oversight by the Congress of executive branch
classification and declassification activities, without
impairing the responsibility of executive branch officials
for the day-to-day administration of the system.
SEC. 4. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.
(a) Classification For National Security Reasons.--The
President may, in accordance with this Act, protect from
unauthorized disclosure information in the possession and
control of the executive branch when there is a demonstrable
need to do so in order to protect the national security of
the United States. The President shall ensure that the amount
of information classified is the minimum necessary to protect
the national security.
(b) Procedures for Classification and Declassification.--
(1) In general.--The President shall, to the extent
necessary, establish categories of information that may be
classified and procedures for classifying information under
subsection (a). The President shall, concurrently with the
establishment of such categories and procedures, establish,
and allocate resources for the implementation of, procedures
for declassifying information previously classified.
(2) Publication of categories and procedures.--
(A) The President shall publish notice in the Federal
Register of any categories and procedures proposed to be
established under paragraph (1) with respect to both the
classification and declassification of information, and shall
provide an opportunity for interested agencies and other
interested persons to submit comments thereon. The President
shall take into account such comments before establishing the
categories and procedures, which shall also be published in
the Federal Register.
(B) The procedures set forth in subparagraph (A) shall
apply to any modifications in categories or procedures
established under paragraph (1).
(3) Agency standards and procedures.--The head of each
agency shall establish standards and procedures for
classifying and declassifying information created by that
agency on the basis of the categories and procedures
established by the President under paragraph (1). Each agency
head, in establishing and modifying standards and procedures
under this paragraph, shall follow the procedures required of
the President in paragraph (2) for establishing and modifying
[[Page S4112]]
categories and procedures under that paragraph.
(c) Considerations in Determining Classification and
Declassification.--
(1) In general.--In determining whether information should
be classified or declassified, the agency official making the
determination shall weigh the benefit from public disclosure
of the information against the need for initial or continued
protection of the information under the classification
system. If there is significant doubt as to whether
information requires such protection, it shall not be
classified.
(2) Written justification.--
(A) Original classification.--The agency official who makes
the decision to classify information shall identify himself
or herself and shall provide in writing a detailed
justification for that decision.
(B) Derivative classification.--In any case in which an
agency official classifies a document on the basis of
information previously classified that is included or
referenced in the document, that agency official shall
identify himself or herself in that document.
(d) Standards for Declassification.--
(1) Initial classification period.--Information may not
remain classified under this Act for longer than a 10-year
period unless the head of the agency that created the
information certifies to the President at the end of such
period that the information requires continued protection,
based on a current assessment of the risks of disclosing the
information, carried out in accordance with subsection
(c)(1).
(2) Additional classification period.--Information not
declassified prior to or at the end of the 10-year period
referred to in paragraph (1) may not remain classified for
more than a 30-year period unless the head of the agency that
created the information certifies to the President at the end
of such 30-year period that continued protection of the
information from unauthorized disclosure is essential to the
national security of the United States or that demonstrable
harm to an individual will result from release of the
information.
(3) Declassification schedules.--All classified information
shall be subject to regular review pursuant to schedules each
agency head shall establish and publish in the Federal
Register. Each agency shall follow the schedule established
by the agency head in declassifying information created by
that agency.
(4) Assessment of existing classified information.--Each
agency official responsible for information which, before the
effective date of this Act--
(A) was determined to be kept protected from unauthorized
disclosure in the interest of national security, and
(B) had been kept so protected for longer than the 10-year
period referred to in paragraph (1),
shall, to the extent feasible, give priority to making
decisions with respect to declassifying that information as
soon as is practicable.
(e) Reports to Congress.--Not later than December 31 of
each year, the head of each agency that is responsible for
the classification and declassification of information shall
submit to the Congress a report that describes the
application of the classification and declassification
standards and procedures of that agency during the preceding
fiscal year.
(f) Amendment to Freedom of Information Act.--Section
552(b)(1) of title 5, United States Code, is amended to read
as follows:
``(1)(A) specifically authorized to be classified under the
Government Secrecy Act of 1997, or specifically authorized,
before the effective date of that Act, under criteria
established by an Executive order to be kept secret in the
interest of national security (as defined by section 7(6) of
the Government Secrecy Act of 1997), and (B) are in fact
properly classified pursuant to that Act or Executive
order;''.
SEC. 5. NATIONAL DECLASSIFICATION CENTER.
(a) Establishment.--The President shall establish, within
an existing agency, a National Declassification Center, the
functions of which shall be--
(1) to coordinate and oversee the declassification policies
and practices of the Federal Government; and
(2) to provide technical assistance to agencies in
implementing such policies and practices, in accordance with
this section.
(b) Functions.--
(1) Declassification of information.--The Center shall, at
the request of any agency and on a reimbursable basis,
declassify information within the possession of that agency
pursuant to the guidance of that agency on the basis of the
declassification standards and procedures established by that
agency under section 4, or if another agency created the
information, pursuant to the guidance of that other agency on
the basis of the declassification standards and procedures
established by that agency under section 4. In carrying out
this paragraph, the Center may use the services of officers
or employees or the resources of another agency, with the
consent of the head of that agency.
(2) Coordination of policies.--The Center shall coordinate
implementation by agencies of the declassification policies
and procedures established by the President under section 4
and shall ensure that declassification of information occurs
in an efficient, cost-effective, and consistent manner among
all agencies that create or otherwise are in possession of
classified information.
(3) Disputes.--If disputes arise among agencies regarding
whether information should or should not be classified, or
between the Center and any agency regarding the Center's
functions under this section, the heads of the agencies
concerned or of the Center may refer the matter to the
President for resolution of the dispute.
(c) National Declassification Advisory Committee.--
(1) In general.--There is established a 12-member National
Declassification Advisory Committee. 4 members of the
Advisory Committee shall be appointed by the President and 2
members each shall be appointed by the majority and minority
leaders of the Senate, the Speaker of the House of
Representatives, and the minority leader of the House of
Representatives.
(2) Membership.--The members of the Advisory Committee
shall be appointed from among distinguished historians,
political scientists, archivists, other social scientists,
and other members of the public who have a demonstrable
expertise in declassification and the management of
Government records. No officer or employee of the United
States Government shall be appointed to the Advisory
Committee.
(3) Duties.--The Advisory Committee shall provide advice to
the Center and make recommendations concerning
declassification priorities and activities.
(d) Annual Reports.--The Center shall submit to the
President and the Congress, not later than December 31 of
each year, a report on its activities during the preceding
fiscal year, and on the implementation of agency
declassification practices and its efforts to coordinate
those practices.
SEC. 6. INFORMATION TO THE CONGRESS.
Nothing in this Act shall be construed to authorize the
withholding of information from the Congress.
SEC. 7. DEFINITIONS.
As used in this Act--
(1) the term ``Advisory Committee'' means the National
Declassification Advisory Committee established under section
5(c);
(2) the term ``agency'' means any executive agency as
defined in section 105 of title 5, United States Code, any
military department as defined in section 102 of such title,
and any other entity in the executive branch of the
Government that comes into the possession of classified
information;
(3) the term ``Center'' means the National Declassification
Center established under section 5(a);
(4) the terms ``classify'', ``classified'', and
``classification'' refer to the process by which information
is determined to require protection from unauthorized
disclosure pursuant to this Act in order to protect the
national security of the United States;
(5) the terms ``declassify'', ``declassified'', and
``declassification'' refer to the process by which
information that has been classified is determined to no
longer require protection from unauthorized disclosure
pursuant to this Act; and
(6) the term ``national security of the United States''
means the national defense or foreign relations of the United
States.
SEC. 8. EFFECTIVE DATE.
This Act shall take effect 180 days after the date of the
enactment of this Act.
____
Institute for Advanced Study,
School of Historical Studies,
Princeton, NJ, March 25, 1997.
Senator Daniel P. Moynihan,
Russell Senate Office Building,
Washington, DC.
Dear Senator: Thank you for your note of the 7th, and for
the copy of your recent talk at Georgetown, which I have read
with deep appreciation.
There are several points you touched on in that talk which,
were we sitting at leisure around a fireside, I would like to
pursue. I cannot treat them all here. But there is one matter
on which you did not specifically mention but which lies
close to the subject you had in mind, and on which I am moved
to say a word. It is a matter on which I have long looked
for, but never found, a suitable chance to comment publicly.
It is my conviction, based on some 70 years of experience,
first as a government official and then in the past 45 years
as an historian, that the need by our government for secret
intelligence about affairs elsewhere in the world has been
vastly over-rated. I would say that something upwards of 95%
of what we need to know about foreign countries could be very
well obtained by the careful and competent study of perfectly
legitimate sources of information open and available to us in
the rich library an archival holdings of this country. Much
of the remainder, if it could not be found here (and there is
very little of it that could not) could easily be non-
secretively elicited from similar sources abroad.
In Russia, in Stalin's time and partly thereafter, the
almost psychotic preoccupation of the Communist regime with
secrecy appeared to many, not unnaturally, to place a special
premium on efforts to penetrate that curtain by secretive
methods of our own. This led, of course, to the creation here
of a vast bureaucracy dedicated to this particular purpose;
and this latter, after the fashion of all great bureaucratic
structures, has endured to this day, long after most of the
reasons for it have disappeared. Even in the Soviet time,
much of it was superfluous. A lot of what we went to such
elaborate and dangerous means to obtain secretly would have
been here for the having, given the requisite quiet and
scholarly analysis of what already lay before us.
[[Page S4113]]
The attempt to elicit information by secret means has
another very serious negative effect that is seldom noted.
The development of clandestine sources of information in
another country involves, of course, the placing and the
exploitation of secret agents on the territory of that
country. This naturally incites the mounting of a substantial
effort of counterintelligence on the part of the respective
country's government. This, in turn, causes us to respond
with an equally vigorous effort of counterintelligence in
order to maintain the integrity of our espionage effort.
But for a variety of reasons, this competition in
counterintelligence efforts tends to grow into dimensions
that wholly overshadow the original effort of positive
intelligence procurement that gave rise to it in the first
place. It takes on aspects which cause it to be viewed as
a game, played in its own rights. Unfortunately, it is a
game requiring such lurid and dramatic character that it
dominates the attention both of those that practice it,
and of those in the press and the media who exploit it.
Such is the fascination it exerts that it tends wholly to
obscure, even for the general public the original reasons
for it. It would be interesting to know what proportion of
the energies and expenses and bureaucratic involvement of
the C.I.A. is addressed to this consuming competition, and
whether one ever stacks this up against the value of its
almost forgotten original purposes. Do people ever
reflect, one wonders, that the best way to protect against
the penetration of one's secrets by others is to have the
minimum of secrets to conceal?
One more point. At the bottom of the whole great effort of
secret military intelligence, which has played so nefarious a
part in the entire history of great-power relationships in
this passing century, there has usually lain the assumption
by each party that if it did not engage to the limit in that
exercise the other party, working in secret, might develop a
weapon so devastating that with it he could confront all
others with the demand that they submit to his will ``or
else''.
But this sort of anxiety is now greatly outdated. The
nuclear competition has taught us that the more terrible the
weapons available, the more suicidal becomes any conceivable
actual use of them. With the recognition of the implications
of this simple fact would go a large part of the motivation
for our frantic efforts of secret intelligence. In this
respect, too, this is really a new age. It is time we
recognized it and drew the inescapable conclusions.
There may still be areas, very small areas really, in which
there is a real need to penetrate someone else's curtain of
secrecy. All right. But then please, without the erection of
false pretenses and elaborate efforts to deceive--and
without, to the extent possible--the attempt to maintain
``spies'' on the adversary's territory. We easily become
ourselves, the sufferers from these methods of deception. For
they inculcate in their authors, as well as their intended
victims, unlimited cynicism, causing them to lose all
realistic understanding of the interrelationship, in what
they are doing, of ends and means.
Forgive me for burdening you with this outburst. I am not
unloading upon my friends, in private letters, thoughts I
should probably have brought forward publicly long ago. I
have to consider that this is the only way I can put some of
these thoughts into words before, in the case of a person 93
years of age, it becomes too late.
Warm and admiring greetings.
Very sincerely,
George Kennan.
Mr. HELMS. I am pleased to join Senator Moynihan today in introducing
a bill that would for the first time place in statute the Government
system for the classification of information. To date this has been
accomplished solely through Executive order.
The statute is based on the recommendations contained in the report
of the Commission to Protect and Reduce Government Secrecy chaired by
my colleague Pat Moynihan, the senior Senator from New York. The
Secrecy Commission achieved a unified report of recommendations--a feat
that should not be underrated, especially in Washington.
The Commission, by law, had the twin goals of studying how to protect
important Government secrets and simultaneously reducing the amount of
classified documents and materials. All Commissioners began their
deliberations with the premise that Government secrecy is a form of
regulation that, like all regulations, should be used sparingly, and
certainly never for the goal of keeping the truth from the American
people. Commissioners also began the process recognizing that over-
classification can actually weaken the protections of those secrets
that truly are in our national interest.
All the same I am obliged to begin with a reiteration of the
obvious--that the protection of true national security information
remains vital to the well-being and security of the United States. The
end of the cold war notwithstanding, the United States continues to
face serious and long-term threats from a variety of fronts. While
Communist and anti-American regimes, such as North Korea, Cuba, Iran,
and Iraq, continue to wage a war of espionage against the United
States, new threats have arisen as well.
Most alarming, perhaps, is the growing trend of espionage conducted
not by our enemies but by American allies. Such espionage is on the
rise especially against U.S. economic secrets. According to a February
1996 report by GAO, classified military information and sensitive
military technologies are high priority targets for the intelligence
agencies of U.S. allies.
At first blush, a push to reduce Government secrecy may seem at odds
with these increasing threats. I am convinced it is not. The sheer
volume of government secrets--and their cost to the taxpayers and U.S.
business--is staggering. In 1996 the taxpayers spent more than $5.2
billion to protect classified information. We know all too well from
our own experiences that when everything is secret nothing is secret.
Secrecy all too often then becomes a political tool used by executive
branch agencies to shield information which may be politically
sensitive or policies which may be unpopular with the American public.
Worse yet, information may be classified to hide from public view
illegal or unethical activity. On numerous occasions I, and other
Members of Congress, have found the executive branch to be reluctant to
share certain information, the nature of which is not truly a national
secret, but which would be potentially politically embarrassing to
officials in the executive branch or which would make known an illegal
or indefensible policy.
I have also found that one of the largest impediments to openness is
the perverse incentives of the Government bureaucracy itself in favor
of classification, and the lack of accountability for those who do the
actual classification. I strongly endorse the Commission's
recommendation of adding individual accountability to the process by
requiring original and derivative classifiers to actually identify
themselves and include within the documents a justification of the
decision to classify.
The only way to change a bureaucracy is to reverse the incentive to
classify. A good example of how to change this lack of bureaucratic
accountability is a provision contained in H.R. 3121--legislation which
we approved in the Foreign Relations Committee last year that was
signed into law. Previously, details on U.S. commercial arms sales to
foreign governments were not made available to the public unless a
citizen requested that the State Department make it public. The
incentive therefore was to keep the information closely regulated. H.R.
3121 provides that all arm sales will be made public unless the
President determines that the release of the information is contrary to
U.S. national security interest. Although this may appear to be a small
nuance, the bureaucratic incentive is changed enormously to favor
openness. Shifting the burden in this way can introduce more openness
into the system and force the bureaucracy to identify true national
security threats.
I am convinced, however, that the single most important
recommendation of our Commission that Congress should focus on is the
concept of creating a life cycle for secrets. This means that all
information, classified and unclassified alike, has a life span in
which decisions must be made regarding creation, management, and use.
This kind of rationalization would shift the burden to favor openness
and reduce some of the costs associated with declassification.
I would add a note of caution to the Commission's work on
declassification, however. In the course of the 2 years of its work,
the Commission became very interested in the declassification of
existing documents and materials. In a perfect world, if information
remains relevant to true U.S. national interests it should remain
classified indefinitely. Information that does not compromise U.S.
interests and sources should be made public. We all realize, however,
that this is a tremendously costly venture. In fact, the Commission was
unable to come up with solid data on the true cost of declassification.
In this era when Congress has finally begun to grasp the essential
need to reduce Government spending and balance the budget, the issue of
balancing costs
[[Page S4114]]
and benefits is an essential one. The financial costs to the American
taxpayers must be balanced against the necessity of the
declassification. The real lesson to take from the work of this
Commission is the need to redress for the future the problems of over
classification and a systematic process for declassification, so that
the costs and timeliness of declassification does not pose the same
economic and regulatory burdens on future generations. At the same
time, it may be too costly to declassify all of the countless
classified documents now in existence.
With this caveat in mind, I hope the Congress will focus on bringing
government-wide rationalization to the classification process. It is an
area where tough congressional oversight is long overdue.
______
By Mr. AKAKA (for himself, Mr. Daschle, Mr. Inouye, Mr. Hollings,
Mr. Wellstone and Mr. Jeffords):
S. 714. A bill to make permanent the Native American Veteran Housing
Loan Pilot Program of the Department of Veterans Affairs; to the
Committee on Veterans' Affairs.
REAUTHORIZATION OF THE NATIVE AMERICAN VETERAN HOUSING LOAN PROGRAM
LEGISLATION
Mr. AKAKA. Mr. President, I rise to introduce a measure which
permanently authorizes the Native American Veteran Housing Loan
Program. I am pleased that Senators Daschle, Inouye, Hollings,
Wellstone, and Jeffords have joined me in cosponsoring this important
measure.
In 1992, I authored a bill that established a 5-year pilot program of
direct home loans to assist native american veterans who reside on
trust lands. This pilot program, administered by the Department of
Veterans Affairs [VA], provides direct loans to native American
veterans to build or purchase homes on trust lands. Previously, native
American veterans who reside on trust lands were unable to qualify for
VA home loan benefits. This disgraceful treatment of native American
veterans was finally corrected when Congress established the native
American Direct Home Loan Program.
Despite the complexities of creating a program that addresses the
needs of hundreds of different tribal entities, VA has successfully
entered into agreements to provide direct VA loans to members of 46
tribes and Pacific Island groups, and negotiations continue with other
tribes. Since the program's inception, 127 native American veterans
have been able to achieve home ownership, and none of the loans
approved by the VA have been foreclosed.
Unfortunately, the authority to issue new loans under this remarkably
successful program will cease on September 30, 1997. This would be
tragic and devastating to a number of native American veterans who want
to participate in this program. Although VA has proposed a 2-year
extension for the program, it fails to address the basic reason this
program exists--equity. Native American veterans who reside on trust
lands should be afforded the same benefits available to other veterans.
Without this program, home loan benefits to native Americans living on
trust lands will cease. This is the only program available for native
American veterans who live on trust lands to finance a home for
themselves and their families. There are no alternatives available.
Permanent authorization of this program will ensure that native
American veterans are provided equal access to services and benefits
available to other veterans. I urge my colleagues to support this
important legislation.
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. 714
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PERMANENT AUTHORITY FOR NATIVE AMERICAN VETERAN
HOUSING LOAN PROGRAM.
(a) Permanent Authority.--Section 3761 of title 38, United
States Code, is amended by striking out subsection (c).
(b) Conforming Amendments.--(1) Section 3761(a) of such
title is amended--
(A) by striking out ``shall establish and implement a pilot
program'' and inserting in lieu thereof ``shall carry out a
pilot program''; and
(B) by striking out ``shall establish and implement the
pilot program'' and inserting in lieu thereof ``shall carry
out the pilot program''.
(2) Sections 3761(b) and 3762(i) of such title are each
amended by striking out ``pilot program'' and inserting in
lieu thereof ``program''.
(3) Section 3762 of such title is amended--
(A) in subsection (b)(1)(E), by striking out ``pilot
program established under this subchapter is implemented''
and inserting in lieu thereof ``program under this subchapter
is carried out''; and
(B) in subsection (c)(1)(B), by striking out the second
sentence.
(4)(A) The subchapter heading for subchapter V of chapter
37 of such title is amended by striking out ``PILOT''.
(B) The section heading for section 3761 of such title is
amended to read as follows:
``Sec. 3761. Native American Veteran Housing Loan Program''.
(C) The table of sections at the beginning of chapter 37 of
such title is amended--
(i) in the item relating to subchapter V, by striking out
``PILOT''; and
(ii) by striking out the item relating to section 3761 and
inserting in lieu thereof the following new item:
``3761. Native American Veteran Housing Loan Program.''.
______
By Mr. CRAIG (for himself, Mr. Baucus, Mr. Burns, Mr. Gorton, Mr.
Kempthorne, and Mr. Enzi):
S. 716. A bill to establish a Joint United States-Canada Commission
on Cattle and Beef to identify, and recommend means of resolving
national, regional, and provincial trade-distorting differences between
the countries with respect to the production, processing, and sale of
cattle and beef, and for other purposes; to the Committee on Finance.
legislation to establish cattle and beef commission
Mr. CRAIG. Mr. President, I rise to introduce a bill of critical
importance to our Nation's cattle industry. The joint United States-
Canada Commission on Cattle and Beef is designed to resolve some of the
existing differences in trade practices between the two countries.
I want to thank a number of my colleagues who are joining me as
original cosponsors of this legislation. The cosponsors of this bill
include Senator Baucus, Senator Burns, Senator Gorton, Senator
Kempthorne, and Senator Enzi.
As a former rancher, I have a firsthand understanding of the
challenges that face the cattle industry. The prolonged down cycle is
especially troubling because it affects the livelihoods of thousands of
ranching families in Idaho and across the country.
These beef producers are the largest sector of Idaho and American
agriculture. Over 1 million families raise over 100 million head of
beef cattle every year. This contributes over $36 billion to local
economies. Even with the extended cycle of low prices, direct cash
receipts from the Idaho cattle industry were almost $620 million in
1995. These totals only represent direct sales; they do not capture the
multiplier effect that cattle ranches have in their local economies
from expenditures on labor, feed, fuel, property taxes, and other
inputs.
Over the years, cattle operations have provided a decent living and
good way of life in exchange for long days, hard work, and dedication.
While the investment continues to be high, the returns have been low in
recent years.
The problems facing the cattle industry in recent years are complex.
The nature of the market dictates that stable consumption combined with
increased productivity and growing herd size yield lower prices to
producers. This, combined with high feed prices and limited export
opportunities, has caused a near crisis.
Many Idahoans have contacted me on a number of cattle industry
issues. Some suggest the Federal Government intervene in the market to
help producers. However, many others have expressed fear that Federal
intervention, if experience is any indication, will only complicate
matters and may also create a number of unintended results. I tend to
agree with the latter. Time and again, I have seen lawmakers and
bureaucrats in Washington, DC, albeit well intentioned, take a
difficult situation and make it worse. This does not mean that I
believe Government has no role to play. I have supported and will
continue to support Government involvement in areas like trade, where
individual producers cannot help themselves.
This bill recognizes a number of barriers to international trade that
adversely affect American beef producers.
[[Page S4115]]
The bill is meant to elevate the importance of all trade issues and
specifically address some of the pending cattle trade issues between
the United States and Canada.
The United States-Canada Commission on Cattle and Beef is a measure
designed to provide immediate, short-term solutions to some of the
serious trade problems facing the cattle industry. Specific cattle
issues that could be resolved with further discussion include animal
health requirements and the availability of feed grains. The bill
creates a commission composed of three people from each country along
with a number of other nonvoting advisors. Within 30 days of passage,
the Commission must be in place and within 6 months must issue a
preliminary report on how to resolve the existing differences between
United States and Canadian trade.
I know that a number of my colleagues have legislation pending in
regards to the cattle market. I would comment that I see this bill as a
starting point, not an ending point for cattle industry issues and I
urge my colleagues to support this legislation.
Mr. President, I ask unanimous consent that the text of my bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 716
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. JOINT UNITED STATES-CANADA COMMISSION ON CATTLE
AND BEEF.
(a) Establishment.--There is established a Joint United
States-Canada Commission on Cattle and Beef to identify, and
recommend means of resolving, national, regional, and
provincial trade-distorting differences between the United
States and Canada with respect to the production, processing,
and sale of cattle and beef, with particular emphasis on--
(1) animal health requirements;
(2) transportation differences;
(3) the availability of feed grains; and
(4) Other market-distorting direct and indirect subsidies.
(b) Composition.--
(1) In general.--The Commission shall be composed of--
(A) 3 members representing the United States, including--
(i) 1 member appointed by the Majority Leader of the
Senate;
(ii) 1 member appointed by the Speaker of the House of
Representatives; and
(iii) 1 member appointed by the Secretary of Agriculture;
(B) 3 members representing Canada, appointed by the
Government of Canada; and
(C) nonvoting members appointed by the Commission to serve
as advisers to the Commission, including university faculty,
State veterinarians, trade experts, and other members.
(2) Appointment.--Members of the Commission shall be
appointed not later than 30 days after the date of enactment
of this Act.
(c) Report.--Not later than 180 days after the first
meeting of the Commission, the Commission shall submit a
report to Congress and the Government of Canada that
identifies, and recommends means of resolving, differences
between the United States and Canada with respect to the
production, processing, and sale of cattle and beef.
______
By Mr. JEFFORDS (for himself, Mr. Harkin, Mr. Lott, Mr. Kennedy,
Mr. Coats, Mr. Dodd, Mr. Gregg, Ms. Mikulski, Mr. Frist, Mr.
DeWine, Mr. Enzi, Mr. Hutchinson, Mrs. Murray, Ms. Collins, Mr.
Warner, Mr. McConnell, and Mr. Reed):
S. 717. A bill to amend the Individuals with Disabilities Education
Act, to reauthorize and make improvements to that Act, and for other
purposes; to the Committee on Labor and Human Resources.
THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
Mr. JEFFORDS. Mr. President, today along with 16 of my colleagues, I
am introducing the Individuals with Disabilities Education Act
Amendments of 1997. This legislation is the product of 4 months of
intensive discussion among members of the committee, the House
Committee on Education and the Workforce, and officials from the U.S.
Department of Education.
The process followed in developing this legislation was unprecedented
and demonstrates the high priority all involved place on the importance
of the education of children with disabilities, their parents, and
their educators.
Many people and organizations have helped us to develop this
legislation. I would like to name just a few.
First and foremost, I wish to thank the Majority Leader Trent Lott
for his unwavering support, and, in particular for the assistance of
his Chief of Staff, Dave Hoppe. It is my firm belief that without their
commitment to the process that we could not have produced this bill.
I would also like to thank my colleagues Senators Kennedy, Coats,
Harkin, and Gregg, and especially, Chairman Goodling, Mr. Clay and our
other colleagues in the House, and Secretary Riley, and Assistant
Secretary Heumann.
I also wish to especially thank Senator Frist, who set the direction
and standard that led us in our efforts to reauthorize IDEA in the last
Congress.
I introduce this bill in a much different climate than the one in
which Congress first addressed the issue. In 1975, responding to
numerous Federal court cases, Congress passed Public Law 94-142 which
guaranteed all children with disabilities a ``free and appropriate
public education,'' and promised that the Federal Government would
contribute 40 percent of the costs of special education. It is 22 years
later and today we are on the threshold of honoring that commitment.
Our efforts in drafting this legislation are driven by a common
belief that education is our No. 1 national priority, and that meeting
the needs of our children includes meeting the needs our 5.1 million
children with disabilities. In this bill we address several important
issues: How to increase the flow of Federal dollars to local school
districts; how to expand opportunities for children with disabilities
to participate and succeed in the classroom along with their
nondisabled peers; and how to ensure the appropriate participation of
children with disabilities in State and district-wide assessments of
student progress.
I hope all of my colleagues will support this legislation when it is
considered. It's importance has been demonstrated by the collaborative
process in which it was developed, and the valuable group of Americans
it is intended to serve.
Thank you, Mr. President.
____________________