[Congressional Record Volume 143, Number 111 (Thursday, July 31, 1997)]
[Senate]
[Pages S8590-S8607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    WORKPLACE RELIGIOUS FREEDOM ACT

  Mr. KERRY. Mr. President, I send a bill to the desk and I ask for its 
appropriate referral.
  Mr. President, I am introducing today a bipartisan bill, together 
with Senator Coats of Indiana. This is the Workplace Religious Freedom 
Act of 1997.
  This bill would protect workers from on-the-job discrimination 
related to religious beliefs and practices. It represents a milestone 
in the protection of the religious liberties of all workers. Senator 
Coats and I developed this new bill based on a similar bill I 
introduced earlier this session.
  In 1972, Congress amended the Civil Rights Act of 1964 to require 
employers to reasonably accommodate an employee's religious practice or 
observance unless doing so would impose an undue hardship on the 
employer. This 1972 amendment, although completely appropriate, has 
been interpreted by the courts so narrowly as to place little restraint 
on an employer's refusal to provide religious accommodation. The 
Workplace Religious Freedom Act will restore to the religious 
accommodation provision the weight that Congress originally intended 
and help assure that employers have a meaningful obligation to 
reasonably accommodate their employees' religious practices.
  The restoration of this protection is no small matter. For many 
religiously observant Americans the greatest peril to their ability to 
carry out their religious faiths on a day-to-day basis may come from 
employers. I have heard accounts from around the country about a small 
minority of employers who will not make reasonable accommodation for 
employees to observe the Sabbath and other holy days or for employees 
who must wear religiously-required garb, such as a yarmulke, or for 
employees to wear clothing that meets religion-based modesty 
requirements.
  The refusal of an employer, absent undue hardship, to provide 
reasonable accommodation of a religious practice should be seen as a 
form of religious discrimination, as originally intended by Congress in 
1972. And religious discrimination should be treated fully as seriously 
as any other form of discrimination that stands between Americans and 
equal employment opportunities. Enactment of the Workplace Religious 
Freedom Act will constitute an important step toward ensuring that all 
members of society, whatever their religious beliefs and practices, 
will be protected from an invidious form of discrimination.
  It is important to recognize that, in addition to protecting the 
religious freedom of employees, this legislation protects employers 
from an undue burden. Employees would be allowed to take time off only 
if their doing so does not pose a significant difficulty or expense for 
the employer. This common sense definition of undue hardship is used in 
the ``Americans with Disabilities Act'' and has worked well in that 
context.
  We have little doubt that this bill is constitutional because it 
simply clarifies existing law on discrimination by private employers, 
strengthening the required standard for employers. Unlike the Religious 
Freedom Restoration Act [RFRA], which was declared unconstitutional 
recently by the Supreme Court, the bill does not deal with behavior by 
State or Federal Governments or substantively expand 14th amendment 
rights.
  I believe this bill should receive bipartisan support. This bill is 
endorsed by a wide range of organizations including the American Jewish 
Committee, Baptist Joint Committee, Christian Legal Society, Seventh-
day Adventists, National Association of Evangelicals, National Council 
of the Churches, National Sikh Center, and Presbyterian Churches. I ask 
unanimous consent that the letter from the Coalition for Religious 
Freedom in the Workplace, which represents all of these groups, be 
included in the Record.
  I want to thank Senator Coats for joining me in this effort. I look 
forward to working with him to pass this legislation so that all 
American workers can be assured of both equal employment opportunities 
and the ability to practice their religion.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1124

     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 ``Workplace Religious Freedom 
     Act of 1997''.

     SEC. 2. AMENDMENTS.

       (a) Definitions.--Section 701(j) of the Civil Rights Act of 
     1964 (42 U.S.C. 2000e(j)) is amended--
       (1) by inserting ``(1)'' after ``(j)'';
       (2) by inserting ``, after initiating and engaging in an 
     affirmative and bona fide effort,'' after ``unable'';
       (3) by striking ``an employee's'' and all that follows 
     through ``religious'' and insert ``an employee's religious''; 
     and
       (4) by adding at the end the following:
       ``(2) As used in this subsection, the term `employee' 
     includes a prospective employee.
       ``(3) As used in this subsection, the term `undue hardship' 
     means an accommodation requiring significant difficulty or 
     expense. For purposes of determining whether an accommodation 
     requires significant difficulty or expense--
       ``(A) an accommodation shall be considered to require 
     significant difficulty or expense if the accommodation will 
     result in the inability of an employee to perform the 
     essential functions of the employment position of the 
     employee; and
       ``(B) other factors to be considered in making the 
     determination shall include--
       ``(i) the identifiable cost of the accommodation, including 
     the costs of loss of productivity and of retraining or hiring 
     employees or transferring employees from one facility to 
     another, in relation to the size and operating cost of the 
     employer;
       ``(ii) the number of individuals who will need the 
     particular accommodation to a religious observance or 
     practice; and
       ``(iii) for an employer with multiple facilities, the 
     degree to which the geographic separateness or administrative 
     or fiscal relationship of the facilities will make the 
     accommodation more difficult or expensive.''.
       (b) Employment Practices.--Section 703 of such Act (42 
     U.S.C. 2000e-2) is amended by adding at the end the 
     following:
       ``(o)(1) As used in this subsection:
       ``(A) The term `employee' includes a prospective employee.
       ``(B) The term `leave of general usage' means leave 
     provided under the policy or program of an employer, under 
     which--
       ``(i) an employee may take leave by adjusting or altering 
     the work schedule or assignment of the employee according to 
     criteria determined by the employer; and
       ``(ii) the employee may determine the purpose for which the 
     leave is to be utilized.
       ``(C) The term `undue hardship' has the meaning given the 
     term in section 701(j)(3).
       ``(2) For purposes of determining whether an employer has 
     committed an unlawful employment practice under this title by 
     failing to provide a reasonable accommodation to the 
     religious observance or practice of an employee, an 
     accommodation by the employer shall not be deemed to be 
     reasonable if such accommodation does not remove the conflict 
     between employment requirements and the religious observance 
     or practice of the employee.
       ``(3) An employer shall be considered to commit such a 
     practice by failing to provide such a reasonable 
     accommodation for an employee if the employer refuses to 
     permit the employee to utilize leave of general usage to 
     remove such a conflict solely because the leave will be used 
     to accommodate the religious observance or practice of the 
     employee.
       ``(4) It shall not be a defense to a claim of unlawful 
     employment practice under this title for failure to provide a 
     reasonable accommodation to a religious observance or 
     practice of an employee that such accommodation would be in 
     violation of a bona fide seniority system if, in order for 
     the employer to reasonably accommodate such observance or 
     practice--
       ``(A) an adjustment would be made in the employee's work 
     hours (including an adjustment that requires the employee to 
     work overtime in order to avoid working at a time that 
     abstention from work is necessary to satisfy religious 
     requirements), shift, or job assignment, that would not be 
     available to any employee but for such accommodation; or

[[Page S8591]]

       ``(B) the employee and any other employee would voluntarily 
     exchange shifts or job assignments, or voluntarily make some 
     other arrangement between the employees.
       ``(5)(A) An employer shall not be required to pay premium 
     wages or confer premium benefits for work performed during 
     hours to which such premium wages or premium benefits would 
     ordinarily be applicable, if work is performed during such 
     hours only to accommodate religious requirements of an 
     employee.
       ``(B) As used in this paragraph--
       ``(i) the term `premium benefit' means an employment 
     benefit, such as seniority, group life insurance, health 
     insurance, disability insurance, sick leave, annual leave, an 
     educational benefit, or a pension, that is greater than the 
     employment benefit due the employee for an equivalent period 
     of work performed during the regular work schedule of the 
     employee; and
       ``(ii) the term `premium wages' includes overtime pay and 
     compensatory time off, premium pay for night, weekend, or 
     holiday work, and premium pay for standby or irregular 
     duty.''.

     SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

       (a) Effective Date.--Except as provided in subsection (b), 
     this Act and the amendments made by section 2 take effect on 
     the date of enactment of this Act.
       (b) Application of Amendments.--The amendments made by 
     section 2 do not apply with respect to conduct occurring 
     before the date of enactment of this Act.
                                                                    ____

       


             Coalition for Religious Freedom in the Workplace,

                                    Washington, DC, July 31, 1997.
       The Coalition for Religious Freedom in the Workplace is a 
     broad coalition of religious and civil rights groups that has 
     come together to promote the passage of legislation to 
     strengthen the religious accommodation provisions of Title 
     VII of the Civil Rights Act of 1964. We applaud Senators Dan 
     Coats and John Kerry for their action today in introducing 
     the Workplace Religious Freedom Act of 1997.
       Current civil rights law defines the refusal of an employer 
     to reasonably accommodate an employee's religious practice, 
     unless such accommodation would impose an undue hardship on 
     the employer, as a form of religious discrimination. But this 
     standard has been interpreted far too narrowly by the courts, 
     placing little restraint on an employer's ability to refuse 
     to provide religious accommodation.
       It is time to correct an interpretation of the law that 
     needlessly forces upon religiously observant employees a 
     conflict between the dictates of religious observance and the 
     requirements of the workplace. The bipartisan effort of 
     Senators Coats and Kerry in crafting and introducing the 
     Workplace Religious Freedom Act sends exactly the right 
     signal; as was the case with the Religious Freedom 
     Restoration Act, the effort to safeguard religious liberty 
     and fight against religious discrimination is one that 
     should, and must, bring together Americans from a broad range 
     of political and religious persuasions.
       The Coalition for Religious Freedom in the Workplace 
     welcomes today's introduction of the Workplace Religious 
     Freedom Act. We look forward to working with Senators Coats, 
     Kerry and other Members on this crucial issue as this 
     legislation moves forward.

  Mr. COATS. Mr. President, to privatize religious belief is to 
trivialize it. When we treat religion as purely personal--irrelevant to 
the way we live our lives and write our laws--this is not neutrality to 
religion, it is hostility to religion. The reason is simple: because 
faith is more than an internal belief, it is a guide to external 
conduct. And for religious liberty to have any meaning, government and 
business must accommodate that conduct, within the bounds of reason and 
order. Consider one case:
  Ms. Jones, a line worker at Bigco Enterprises approaches her 
supervisor with a problem: According to her religion, she may not work 
on Sunday. Ms. Jones will work any other day--including Saturday 
evenings--without extra pay. But the mandate of her religion is 
absolute. If given the choice of working on Sunday or losing her job, 
Ms. Jones will have to resign or risk being fired. The supervisor 
explains that Bigco has a random shift-assignment policy which requires 
that every employee work the assigned shift or find a replacement 
worker. Unable to find a replacement worker, Ms. Jones misses two 
Sundays, and is fired.
  Mr. President, presumably, title VII of the Civil Rights Act of 1964, 
which prohibits an employer from discriminating against an employee on 
the basis of her religion, would provide Ms. Jones some recourse. But 
that is not necessarily the case.
  Since 1972, title VII has required an employer to make an 
accommodation ``unless an employer demonstrates that he is unable to 
reasonably accommodate an employee's religious observance or practice 
without undue hardship.'' In a case such as the one described above, 
Mr. Jones' religious practice would not have to be accommodated, and 
Bigco would likely not be liable since attempting to find a replacement 
worker for Jones would cause Bigco to ``bear more than a de minimis 
cost''.
  Under current law, Ms. Jones' religious observance would constitute 
an undue hardship, and Bigco would have no further obligation to Ms. 
Jones.
  Over 60 percent of Americans consider themselves to be religious, 
yet, Ms. Jones' predicament is all too common in the United States. 
Employees who engage in seemingly common religious observances such as 
the Sabbath are often faced with the difficulty of breaking an 
employer's rule or violating a religious tenet.
  As Justice Marshall explained in his dissent in the Hardison case, 
under the de minimis standard which the courts have adopted in 
religious accommodation cases, an employer ``need not grant even the 
most minor special privilege to religious observers to enable them to 
follow their faith.'' He continues: ``As a question of social policy, 
this result is deeply troubling, for a society that truly values 
pluralism cannot compel aderents of minority religions to make the 
cruel choice of surrendering their religion or their job.''
  Mr. President, I am pleased to join Senator Kerry in introducing the 
Workplace Religious Freedom Act to addresses this issue head-on. The 
goal of the act is to restore the original intent of title VII by 
extending to religious observers the same level of protection afforded 
others under Federal civil rights laws.
  The act accomplishes this goal principally by applying the same 
standard for undue hardship to religious observance cases as are 
already applied in other Federal civil rights actions, such as those 
under the Americans with Disabilities Act and the Rehabilitation Act. 
Thus under this legislation, the term undue hardship is defined as an 
action requiring ``significant difficulty or expense''.
  Our bill takes into account a number of factors, including: First the 
cost of the accommodation as determined by the costs of lost 
productivity and of retraining or hiring employees or transferring 
employees from one facility to another; second the size of the 
employer; third the number of employees who require the accommodation 
and; fourth for an employer with multiple facilities, the degree to 
which the geographic separateness or administrative or fiscal 
relationship of the facilities will make the accommodation more 
difficult or expensive.
  The bill also provides a number of safeguards for the employer. For 
example, an employer is not required to provide an accommodation which 
will result in the inability of an employee to perform the essential 
functions of the job nor is an employer required to pay premium wages 
or additional benefits to employees requesting the accommodation if the 
change in schedule is instituted specifically to accommodate an 
employee's religious observance or practice.

  The Workplace Religious Freedom Act is an important step toward 
restoring the original intent of title VII. Though we know that only a 
minority of employers refuse to make reasonable accommodations for 
employees to observe the Sabbath or other Holy days, the fact of the 
matter is that no worker in America should be forced to choose between 
a job and violating deeply held religious tenets. Religious 
discrimination in America must not be tolerated. It should be treated 
as seriously as any other form of discrimination.
  Mr. President, let me conclude by reminding us that the best and 
oldest tradition of America is religious accommodation without 
coercion. We have no established religion in this country, and do not 
want one. But we must recognize and respect the important role of 
religion in our society. Values that come from religious faith enrich 
our common life. As a society, we must continue to guarantee that 
religious liberty. I urge my colleagues to support this important 
legislation.


            COALITION FOR RELIGIOUS FREEDOM IN THE WORKPLACE

       Agudath Israel of America
       America Jewish Committee
       American Jewish Congress

[[Page S8592]]

       Americans for Democratic Action
       Anti-Defamation League
       Baptist Joint Committee on Public Affairs
       Central Conference of American Rabbis
       Christian Legal Society
       Church of Scientology International
       Council on Religious Freedom
       General Board on Church and Society
       The United Methodist Church
       General Conference of Seventh-day Adventists
       Guru Gobind Singh Foundation
       Hadassah-WZOA
       International Association of Jewish Lawyers and Jurists
       Jewish Council for Public Affairs
       National Association of Evangelicals
       NationalCouncil of Churches
       National Council of Jewish Women
       National Sikh Center
       North American Council for Muslim Women
       People for the American Way
       Presbyterian Church (USA), Washington Office
       Rabbinical Council of America
       Traditional Values Coalition
       Union of American Hebrew Congregations
       Union of Orthodox Jewish Congregations
       United Synagogue of Conservative Judaism
                                 ______
                                 
      By Ms. MOSELEY-BRAUN (for herself and Mr. Durbin):
  S. 1125. A bill to amend title 23, United States Code, to extend the 
discretionary bridge program; to the Committee on Environment and 
Public Works.


                 HIGHWAY BRDIGE IMPROVEMENT ACT OF 1997

  Ms. MOSELEY-BRAUN. Mr. President, I am pleased to introduce the 
Highway Bridge Improvement Act of 1997 with my colleague from Illinois, 
Senator Durbin.
  This legislation would increase the authorization for the 
Discretionary Bridge Program from its current level of around $60 
million annually to $800 million annually. This change would allow 
States with large bridge improvement projects to compete for 
discretionary grants at the Federal level.
  Mr. President, in 1995 approximately 25 percent of the Nation's 
Interstate bridges were classified as deficient. In addition, 28 
percent of the 130,000 bridges on all other arterial systems were 
deficient. As the Congress considers ISTEA reauthorization legislation 
later this year, it is vitally important that we continue the 
successful Highway Bridge Repair and Rehabilitation Program, and 
substantially increase the authorization level of the Discretionary 
Bridge Program.
  Since its creation in 1978, the Discretionary Bridge Program has been 
a valuable source of funds for many States. Demand for funding under 
the program has vastly exceeded available resources. In 1996 alone, 
States submitted 29 requests totaling $650 million. The program was 
authorized at less than one-tenth that level.
  The Highway Bridge Improvement Act would increase the authorization 
for the Discretionary Bridge Program to $800 million annually, allowing 
States to compete for discretionary bridge repair grants above and 
beyond their formula allocation for bridge repairs.
  Mr. President, this bill does not include a set-aside for the Highway 
Timber Bridge Research and Demonstration Program, nor does it include a 
new proposal I support to create a Steel Bridge Research and 
Construction Program. Our legislation is a very simple statement about 
the importance of increasing the authorization for the Discretionary 
Bridge Program.
  As my colleagues on the Environment and Public Works Committee draft 
legislation to reauthorization the Intermodal Surface Transportation 
and Efficiency Act, I hope they will include the timber and steel 
bridge set-asides, and I hope they will include the Highway Bridge 
Improvement Act.
  I urge all of my colleagues to consider the needs of the bridges in 
their States, and to support this important legislation.
                                 ______
                                 
      By Mrs. BOXER (for herself and Ms. Moseley-Braun):

  S. 1126. A bill to repeal the provision in the Balanced Budget Act of 
1997 relating to base periods for Federal unemployment tax purposes; to 
the Committee on Labor and Human Resources.


  LEGISLATION TO REPEAL CERTAIN SECTION OF THE BALANCED BUDGET ACT OF 
                                  1997

  Mrs. BOXER. Mr. President, I rise today to introduce a bill to repeal 
section 5401 of the conference report to H.R. 2015, the Balanced Budget 
Act of 1997. This provision, entitled ``Clarifying provision relating 
to base periods,'' will have a devastating impact on hundreds of 
thousands of unemployed workers in California and throughout the 
country.
  This provision, although labeled ``clarifying,'' actually overturns a 
very important 3-year-old Federal court decision. A provision with such 
far-reaching implications for all of the working men and women in our 
country who are currently unemployed, or, in this era of downsizing, 
may become unemployed, should not be tucked away in a 1,000-plus page 
bill.
  Let me briefly explain to my colleagues why this provision has such a 
devastating impact on unemployed workers. On February 21, 1997, a 
statewide class action suit was filed on behalf of more than 120,000 
Californians who have earned sufficient wages to qualify for 
unemployment insurance but nevertheless must wait up to 7 months to 
receive their unemployment benefits. There is no question that these 
workers are entitled to unemployment benefits; the only issue is when 
the State will pay the benefits.
  In order to receive unemployment benefits a worker must have earned a 
prescribed amount in the 12-month period prior to his unemployment. 
However, because many States, including my home State of California, 
are slow to obtain and process wage data, a worker's unemployment 
compensation is often not calculated based upon his most recent wages. 
Rather, it is often calculated based upon wages which were earned up to 
7 months prior to the date the worker files a claim. For example, if a 
worker files a claim for benefits in January 1997, any amounts he 
earned after July 1996, will be disregarded because it is outside of 
the ``base period.''
  This policy of delaying payment of unemployment benefits causes 
severe hardship to unemployed workers, pushing many of these workers on 
to the welfare roles. The bill I have introduced today will help enable 
these unemployed workers get the benefits they are due in a timely 
manner.
  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. 1126

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

     SECTION 1. REPEAL OF SECTION 5401 OF BALANCED BUDGET ACT OF 
                   1997.

       (a) In General.--Section 5401 of the Balanced Budget Act of 
     1997 is hereby repealed.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply for purposes of any period beginning before, on, 
     or after the date of the enactment of this Act.
                                 ______
                                 
      By Mr. WELLSTONE:
  S. 1128. A bill to provide rental assistance under section 8 of the 
United States Housing Act of 1937 for victims of domestic violence to 
enable such victims to relocate; to the Committee on Banking, Housing, 
and Urban Affairs.


               the domestic violence victims housing act

  Mr. WELLSTONE. Mr. President, I rise today to introduce legislation 
that will ensure that battered women have increased access to 
affordable housing through tenant-based rental assistance. The lack of 
safe, affordable housing is a major factor in forcing women to return 
to their violent partners, either directly from a shelter or after 
attempting to set up an independent home. This bill would address that 
important problem by providing section 8 housing certificates to low-
income women who are victims of domestic violence.
  Domestic violence in our society is a staggering problem. An 
estimated 4 million American women experience a serious assault by a 
husband or boyfriend each year. In 1993 alone, over 1,300 women were 
reportedly killed by abusive partners or former partners. Battered 
women are confronted with numerous obstacles in their efforts to 
survive and escape domestic violence. Some obstacles arise from the 
dynamics of abusive relationships--dependency, isolation, and fear. 
Economic obstacles, however, create some of the must difficult problems 
for women trying to leave a violent partner, including child and health 
care costs, and the lack of safe, affordable housing. Battered women 
and their children are a large proportion of the emergency shelter 
population. Even if shelter space is available, access to affordable 
housing,

[[Page S8593]]

housing subsidies and services are needed to keep women from having to 
return to a violent home. A study in Michigan found that 60 percent of 
those who left shelters and returned to their violent partners did so 
because of too little affordable housing. Equally as disturbing is the 
fact that 50 percent of all homeless women and children in this country 
are fleeing domestic violence.
  There have been cases brought to my attention in my home State of 
Minnesota where women trying to escape abusive relations could have 
benefited from this legislation, and we know that sadly there are many 
more stories from around the country.
  One case involves a young mother from a small town in central 
Minnesota. Rachel left her child's father after suffering 2 years of 
abuse at his hands. She and her baby stayed in a battered women's 
shelter for a month until she found an apartment. After paying her rent 
each month, Rachel was unable to provide for her family. Seeing no 
other options, she returned to the home of her abuser; after a 2 month 
respite, he began to batter her again.
  This legislation would assist women, like Rachel, fleeing abuse to 
get affordable housing by authorizing $50 million in funding for 
section 8 housing certificates. The Department of Housing and Urban 
Development [HUD] would allocate the resources to public housing 
authorities which would issue the housing certificates to domestic 
violence victims. Only those victims who met the other requirements of 
the section 8 program would be eligible. HUD estimates that this 
program would provide 7,500 housing units nationwide for victims of 
domestic violence.
  Mr. President, this legislation will go a long way in removing a 
major road-block for battered women who are trying to escape domestic 
violence--the lack of affordable housing. We need to give these women 
an opportunity other than living on the streets, in shelters, returning 
to their batterers. This legislation would provide battered women and 
their children an opportunity to rebuild their lives in a stable home. 
Furthermore, this legislation conveys the message to abusers that we 
will not tolerate their violence, that we will not continue to allow 
them to drive their victims into the shelters and the street.
  I ask unanimous consent that the full 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. 1128

       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 ``Domestic Violence Victims 
     Housing Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Abuse.--The term ``abuse'' includes any act that 
     constitutes or causes, any attempt to commit, or any threat 
     to commit--
       (A) any bodily injury or physical illness, including 
     placing, by physical menace, another in fear of imminent 
     serious bodily injury;
       (B) any rape, sexual assault, or involuntary sexual 
     activity, or any sexual activity with a dependent child;
       (C) the infliction of false imprisonment or other 
     nonconsensual restraints on liberty of movement;
       (D) deprivation of medical care, housing, food, or other 
     necessities of life; or
       (E) mental or psychological abuse, including repeated or 
     severe humiliation, intimidation, criticism, acts designed to 
     induce terror, or verbal abuse.
       (2) Domestic violence.--The term ``domestic violence'' 
     means abuse that is committed against an individual by--
       (A) a spouse or former spouse of the individual;
       (B) an individual who is the biological parent or 
     stepparent of a child of the individual subject to the abuse, 
     who adopted such child, or who is a legal guardian to such a 
     child;
       (C) an individual with whom the individual subject to the 
     abuse is or was cohabiting;
       (D) a current or former romantic, intimate, or sexual 
     partner of the individual; or
       (E) an individual from whom the individual subject to the 
     abuse would be eligible for protection under the domestic 
     violence, protection order, or family laws of the applicable 
     jurisdiction.
       (3) Family victimized by domestic violence.--
       (A) In general.--The term ``family victimized by domestic 
     violence'' means a family or household that includes an 
     individual who has been determined under subparagraph (B) to 
     have been subject to domestic violence, but does not include 
     any individual described in paragraph (3) who committed the 
     domestic violence. The term includes any such family or 
     household in which only a minor or minors are the individual 
     or individuals who was or were subject to domestic violence 
     only if such family or household also includes a parent, 
     stepparent, legal guardian, or other responsible caretaker 
     for the child.
       (B) Determination that family or individual was subject to 
     domestic violence.--For purposes of subparagraph (A), a 
     determination under this subparagraph is a determination that 
     domestic violence has been committed, which is made by any 
     agency or official of a State or unit of general local 
     government (including a public housing agency) based upon--
       (i) information provided by any medical, legal, counseling, 
     or other clinic, shelter, or other program or entity 
     licensed, recognized, or authorized by the State or unit of 
     general local government to provide services to victims of 
     domestic violence;
       (ii) information provided by any agency of the State or 
     unit of general local government that provides or administers 
     the provision of social, legal, or health services;
       (iii) information provided by any clergy;
       (iv) information provided by any hospital, clinic, medical 
     facility, or doctor licensed or authorized by the State or 
     unit of general local government to provide medical services;
       (v) a petition or complaint filed in a court or law or 
     documents or records of action of any court or law 
     enforcement agency, including any record of any protection 
     order, injunction, or temporary or final order issued by 
     civil or criminal courts or any police report; or
       (vi) any other reliable evidence that domestic violence has 
     occurred.
       (4) Public housing agency.--The term ``public housing 
     agency'' has the meaning given the term in section 3(b) of 
     the United States Housing Act of 1937 (42 U.S.C. 1437a(b)).
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of Housing and Urban Development.
       (6) State.--The term ``State'' means the States of the 
     United States, the District of Columbia, the Commonwealth of 
     Puerto Rico, the Commonwealth of the Northern Mariana 
     Islands, Guam, the Virgin Islands, American Samoa, and any 
     other territory or possession of the United States.
       (7) Unit of general local government.--The term ``unit of 
     general local government'' has the meaning given the term in 
     section 102(a) of the Housing and Community Development Act 
     of 1974 (42 U.S.C. 5302(a)).

     SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

       The budget authority under section 5(c) of the United 
     States Housing Act of 1937 for assistance under subsections 
     (b) and (o) of section 8 of such Act is authorized to be 
     increased by--
       (1) $50,000,000 on or after October 1, 1997; and
       (2) such sums as may be necessary on or after October 1, 
     1998.

     SEC. 4. USE OF AMOUNTS FOR HOUSING ASSISTANCE FOR VICTIMS OF 
                   DOMESTIC VIOLENCE.

       (a) In General.--Amounts available pursuant to section 3 
     shall be made available by the Secretary of Housing and Urban 
     Development only to public housing agencies only for use in 
     providing tenant-based rental assistance on behalf of 
     families victimized by domestic violence who have left or who 
     are leaving a residence as a result of the domestic violence.
       (b) Determination.--For purposes of subsection (a), a 
     family victimized by domestic violence shall be considered to 
     have left or to be leaving a residence as a result of 
     domestic violence, if the public housing agency providing 
     rental assistance under this Act determines that the member 
     of the family who was subject to the domestic violence 
     reasonably believes that relocation from such residence will 
     assist in avoiding future domestic violence against such 
     member or another member of the family.
       (c) Allocation.--Amounts made available pursuant to section 
     3 shall be allocated by the Secretary to one or more public 
     housing agencies that submit applications to the Secretary 
     that, in the determination of the Secretary, best 
     demonstrate--
       (1) a need for such assistance; and
       (2) the ability to use that assistance in accordance with 
     this Act.
                                 ______
                                 
      By Mr. WELLSTONE (for himself and Mr. Durbin):
  S. 1129. A bill to provide grants to States for supervised visitation 
centers; to the Committee on Labor and Human Resources.


                THE SAFE HAVENS FOR CHILDREN ACT OF 1997

  Mr. WELLSTONE. Mr. President, I rise today to introduce legislation 
that will provide safe havens for children who are members of families 
in which violence is a problem. I am pleased to have my distinguished 
colleague from Illinois, Mr. Durbin, join me in this effort.
  The prevalence of family violence in our society is staggering. 
Studies show that 25 percent of all violence occurs among people who 
are related to one another. Data also indicate that the incidence of 
violence in families escalates during separation and divorce. In

[[Page S8594]]

fact, over 70 percent of women who are treated for domestic violence in 
emergency departments have already separated from the person who has 
inflicted their injuries. Many of these assaults occur in the context 
of child visitation. This clearly places children at risk not only of 
witnessing violence, but also of becoming victims of violence within 
their own families. Children who are exposed to violence suffer many 
long term effects of this exposure.
  In addition to the obvious physical consequences of violence, there 
are innumerable psychosocial effects. For example, a child who learns 
from his parents, his role models, that violence is a way of resolving 
differences, or controlling another person, will grow up believing that 
it is normal to use violence in everyday interpersonal relationships. 
As a consequence, he will grow up believing that it is acceptable to 
physically hurt those people he loves the most. A young girl who 
watches her mother being beaten up by her father may come to understand 
that physical injury is just one aspect of a ``normal" relationship. 
Children who are exposed to violence are at risk for mental health 
problems and substance abuse problems as they grow up. When we allow 
children to grow up believing that violence is normal and acceptable, 
we do a great deal of damage to their lives and decrease their chances 
for healthy futures.
  In order to prevent the risk of exposure to violence, I am 
introducing this legislation, to provide funding for the creation of 
child safety centers. These centers will provide a safe environment in 
which children can visit with their parents without risk of being 
exposed to violence in the context of their family relationships. This 
bill will protect children from the trauma of witnessing or 
experiencing violence, sexual abuse, neglect, abduction, rape, or death 
during parent-child visitation or visitation exchanges; protect victims 
of violence from experiencing further violence during child visitation 
or visitation exchanges and will provide safe havens for children and 
their parents during visitation or visitation exchanges.
  This act will provide grants to States to enable the states to enter 
into contract and cooperative agreements with public or private 
nonprofit entities in order to establish child safety centers. These 
centers will operate for the purpose of facilitating supervised 
visitation and visitation exchange. The services provided by the 
centers will be evaluated each year, so that we will learn how many 
people are served by the centers and what types of problems are 
encountered by the clients of the centers. The act will authorize 
appropriations of $65,000,000 for each of the fiscal years 1998 through 
2000.
  Mr. President, this legislation will go a long way in protecting 
children from family violence and in providing support for families 
that are experiencing violence. We need to do this to protect our 
children and give them the chance to grow up without believing that 
violence is normal.
  I ask unanimous consent that the full 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. 1129

       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 ``Safe Havens for Children Act 
     of 1997''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to protect children from the trauma of witnessing or 
     experiencing violence, sexual abuse, neglect, abduction, 
     rape, or death during parent-child visitation and visitation 
     exchanges;
       (2) to protect victims of domestic violence from 
     experiencing further violence during child visitation and 
     visitation exchanges; and
       (3) to provide safe havens for parents and children during 
     visitation and visitation exchanges, to promote continuity 
     and stability.

     SEC. 3. FINDINGS.

       Congress makes the following findings:
       (1) Family violence does not necessarily cease when family 
     victims are legally separated by divorce or otherwise not 
     sharing a household.
       (2) According to a 1996 report by the American 
     Psychological Association, custody and visitation disputes 
     are more frequent when there is a history of domestic 
     violence.
       (3) Family violence often escalates following separation 
     and divorce, and child custody and visitation arrangements 
     become the new forum for the continuation of abuse.
       (4) According to a 1996 report by the American 
     Psychological Association, fathers who batter mothers are 
     twice as likely to seek sole custody of their children. In 
     these circumstances, if the abusive father loses custody he 
     is more likely to continue the threats to the mother through 
     other legal actions.
       (5) Some perpetrators of violence use the children as pawns 
     to control the abused party and to commit more violence 
     during separation or divorce. In one study, 34 percent of 
     women in shelters and callers to hotlines reported threats of 
     kidnapping, 11 percent reported that the batterer had 
     kidnapped the child for some period, and 21 percent reported 
     that threats of kidnapping forced the victim to return to the 
     batterer.
       (6) Approximately 90 percent of children in homes in which 
     their mothers are abused witness the abuse. Children who 
     witness domestic violence may themselves become victims and 
     exhibit more aggressive, antisocial, fearful, and inhibited 
     behaviors. Such children display more anxiety, aggression and 
     temperamental problems.
       (7) Women and children are at an elevated risk of violence 
     during the process of separation or divorce.
       (8) Fifty to 70 percent of men who abuse their spouses or 
     partners also abuse their children.
       (9) Up to 75 percent of all domestic assaults reported to 
     law enforcement agencies were inflicted after the separation 
     of the couple.
       (10) In one study of spousal homicide, over \1/2\ of the 
     male defendants were separated from their victims.
       (11) Seventy-three percent of battered women seeking 
     emergency medical services do so after separation.
       (12) The National Council of Juvenile and Family Court 
     Judges includes the option of visitation centers in their 
     Model Code on Domestic and Family Violence.

     SEC. 4. GRANTS TO STATES TO PROVIDE FOR SUPERVISED VISITATION 
                   CENTERS

       (a) In General.--The Secretary of Health and Human Services 
     (in this Act referred to as the ``Secretary'') is authorized 
     to award grants to States to enable States to enter into 
     contracts and cooperative agreements with public or private 
     nonprofit entities to assist such entities in establishing 
     and operating supervised visitation centers for the purposes 
     of facilitating supervised visitation and visitation 
     exchange.
       (b) Considerations.--In awarding such grants, contracts, 
     and cooperative agreements under subsection (a), the 
     Secretary shall take into account--
       (1) the number of families to be served by the proposed 
     visitation center to be established under the grant, 
     contract, or agreement;
       (2) the extent to which the proposed supervised visitation 
     centers serve underserved populations; and
       (3) the extent to which the applicant demonstrates 
     cooperation and collaboration with advocates in the local 
     community served, including the State domestic violence 
     coalition, State sexual assault coalition, local shelters, 
     and programs for domestic violence and sexual assault 
     victims.
       (c) Use of Funds.--
       (1) In general.--Amounts provided under a grant, contract, 
     or cooperative agreement awarded under this section shall be 
     used to establish supervised visitation centers and for the 
     purposes described in section 2. Individuals shall be 
     permitted to use the services provided by the center on a 
     sliding fee basis.
       (2) Applicant requirements.--The Secretary shall award 
     grants, contracts, and cooperative agreements under this Act 
     in accordance with such regulations as the Secretary may 
     promulgate. The Secretary shall give priority in awarding 
     grants, contracts, and cooperative agreements under this Act 
     to States that consider domestic violence in making a custody 
     decision. An applicant awarded such a grant, contract, or 
     cooperative agreement shall--
       (A) demonstrate recognized expertise in the area of family 
     violence and a record of high quality service to victims of 
     domestic violence and sexual assault;
       (B) demonstrate collaboration with and support of the State 
     domestic violence coalition, sexual assault coalition and 
     local domestic violence and sexual assault shelter or program 
     in the locality in which the supervised visitation center 
     will be operated; and
       (C) provide long-term supervised visitation and visitation 
     exchange services to promote continuity and stability.
       (d) Reporting and Evaluation.--
       (1) Reporting.--Not later than 60 days after the end of 
     each fiscal year, the Secretary shall submit to Congress a 
     report that includes information concerning--
       (A) the number of individuals served and the number of 
     individuals turned away from services categorized by State 
     and the type of presenting problems that underlie the need 
     for supervised visitation or visitation exchange, such as 
     domestic violence, child abuse, sexual assault, emotional or 
     other physical abuse, or a combination of such factors;
       (B) the numbers of supervised visitations or visitation 
     exchanges ordered during custody determinations under a 
     separation or divorce decree or protection order, through 
     child protection services, or through other social services 
     agencies;
       (C) the process by which children or abused partners are 
     protected during visitations,

[[Page S8595]]

     temporary custody transfers and other activities for which 
     the supervised visitation centers are created;
       (D) safety and security problems occurring during the 
     reporting period during supervised visitations or at 
     visitation centers including the number of parental abduction 
     cases;
       (E) the number of parental abduction cases in a judicial 
     district using supervised visitation services, both as 
     identified in criminal prosecution and custody violations; 
     and
       (F) any other appropriate information designated in 
     regulations promulgated by the Secretary.
       (2) Evaluation.--In addition to submitting the reports 
     required under paragraph (1), an entity receiving a grant, 
     contract or cooperative agreement under this Act shall have a 
     collateral agreement with the court, the child protection 
     social services division of the State, and local domestic 
     violence agencies or State and local domestic violence 
     coalitions to evaluate the supervised visitation center 
     operated under the grant, contract or agreement. The entities 
     conducting such evaluations shall submit a narrative 
     evaluation of the center to both the center and the grantee.
       (e) Funding.--
       (1) In general.--There shall be made available from amounts 
     contained in the Violent Crime Reduction Trust Fund 
     established under title XXXI of the Violent Crime Control and 
     Law Enforcement Act of 1994 (42 U.S.C. 14211 et seq.), 
     $65,000,000 for each of the fiscal years 1998 through 2000 
     for the purpose of awarding grants, contracts, and 
     cooperative agreements under this Act.
       (2) Distribution.--Of the amounts made available to carry 
     out this Act for each fiscal year, not less than 90 percent 
     of such amount shall be used to award grants, contracts, or 
     cooperative agreements.
       (3) Disbursement.--Amounts made available under this Act 
     shall be disbursed as categorical grants through the 10 
     regional offices of the Department of Health and Human 
     Services.
                                 ______
                                 
      By Mr. CAMPBELL (for himself and Mr. Inouye)
  S. 1130. A bill to provide for the assessment of fees by the National 
Indian Gaming Commission, and for other purposes; to the Committee on 
Indian Affairs.


            the indian gaming enforcement and integrity act

  Mr. CAMPBELL. Mr. President, today I introduce the Indian Gaming 
Enforcement and Integrity Act of 1997. The purpose of this legislation 
is to reform the current regulatory fee structure administered by the 
National Indian Gaming Commission [NIGC], the regulatory agency 
responsible for monitoring and regulating Indian tribal government 
gaming. The essence of any regulatory agency is in its ability to 
monitor activities within its purview and to act decisively in 
enforcing violations of the law. The NIGC is no different and it has 
depended on regulatory assessments and Federal appropriations to carry 
out these vital roles.
  When Congress enacted and the President signed into law, the Indian 
Gaming Regulatory Act [IGRA], two principal goals were sought: To 
provide a statutory basis for the operation of Indian gaming as a means 
of promoting tribal economic development, self-sufficiency, and strong 
tribal governments; and, second, to provide a statutory basis for the 
regulation of the Indian gaming industry to shield it from corrupting 
influences.
  Since its enactment in 1988, the Indian gaming industry has grown 
tremendously, where today it is a multibillion dollar industry. As a 
result, the IGRA is beginning to provide many tribal governments with 
the wherewithal to provide basic services to their members. Where 
poverty once reigned on Indian reservations, economic opportunity now 
abounds. In many cases, tribal governments are able to employ large 
numbers of their own members, as well as non-Indians from surrounding 
communities. Further, it is no coincidence that in many communities 
around the Nation, welfare rolls have dropped and employment has risen 
as a direct result of tribal gaming.
  The second objective of the IGRA is to provide adequate regulation to 
shield Indian gaming from corruption influences and to ensure the games 
are fair, and conducted in accordance with all applicable laws. IGRA 
established the National Indian Gaming Commission and empowered it to 
monitor Indian gaming and to regulate certain aspects of Indian gaming. 
The act authorizes the Commission to assess regualtory fees on these 
gaming activities. In addition to these assessed fees, the act 
authorizes an annual Federal appropriation to complement the funds 
available for the efficient operation of the Commission.
  To date, the Commission is responsible for monitoring and regulating 
273 Indian gaming establishments operated by 184 tribes in 28 States. 
While it attempts to keep up with this tremendous growth, the 
Commission is currently statutorily constrained from securing the level 
of funding it needs to fulfill its mandates under the law.
  Current law authorizes the NIGC to assess fees on class II gaming 
activities at a level not to exceed $1.5 million per year. In addition 
to Federal appropriations of $1 million over the last 3 fiscal years, 
and other fees collected, the NIGC has been operating on a budget that 
slightly exceeds $3 million.
  To further illustrate the funding dilemma of the NIGC, the Committee 
on Indian Affairs conducted an oversight hearing on July 10, 1997 to 
review the current Indian gaming regulatory fee structure. Testimony 
provided to the committee indicated that for fiscal year 1997, the 
Commission has an overall operating budget of $4.3 million which 
consists of, a $1 million direct appropriation, $1.5 million in fees 
assessed on class II tribal gaming revenue, and $1.8 million in 
unobligated funds from prior years. However, for fiscal year 1998 it is 
indicated that funds from prior year unobligated balances would be 
nearly depleted, resulting in a projected operational budget of $2.5 
million to $3.0 million for fiscal year 1998. According to the NIGC, 
without additional funding reductions in staff would take place, with a 
commensurate decrease in its regulatory, compliance and enforcement 
efforts.
  Further, testimony indicated that greater resources need to be 
available to the NIGC in order to meet their statutorily mandated 
responsibilities. To accomplish this the NIGC proposed expanding their 
collection to class III gaming activities
  As a result of the hearing, I have developed legislation that 
reflects testimony provided by the NIGC and tribal interest. This 
legislation will require the NIGC to assess minimum mandatory fees on 
each gaming operation that conducts a gaming activity regulated under 
the act. In addition to these minimum fees, the Commission is 
authorized to assess fees on class II gaming and on class III gaming. 
In order to provide a reasonable fee assessment approach, the 
legislation provides for maximum rates of not more than 2.5 percent on 
the gross revenues of class II activities; and not more than .5 percent 
on the gross revenues of class III activities.
  In addition to these maximum rates, the bill provides for a phased in 
approach so that fees collected on class II activities shall not exceed 
$5 million in fiscal year 1998, $8 million in fiscal year 1999, and $10 
million in fiscal year 2000. Similarly, fees collected on class III 
activities shall not exceed $3 million in fiscal year 1998, $4 million 
in fiscal year 1999, and $5 million in fiscal year 2000.
  The Commission is required to take into account its duties and the 
services it provides to Indian tribal gaming in setting the annual fees 
under the act. The legislation creates a special fund in the U.S. 
Treasury for amounts equal to the fees paid by the gaming operations, 
and requires that all amounts deposited into the special fund shall be 
used only to fund the activities of the Commission under the IGRA. 
Because the United States maintains a special relationship with the 
Indian tribes, and given its legitimate role in providing services to 
the tribes, the bill I am introducing retains a Federal appropriation 
to defray the costs incurred by the Commission in carrying out its 
duties under the IGRA.
  As I have stated before, it is our obligation to make sure that we 
protect the interests of Native Americans and, at the same time, 
protect the interest of those who participate in Indian Gaming.
  This legislation seeks to ensure the integrity of the Indian gaming 
industry by providing the tools necessary to the agency responsible for 
regulating this industry. That is why I urge my colleagues to join me 
in supporting it.
  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. 1130

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

[[Page S8596]]

     SECTION 1. ASSESSMENT OF FEES.

       (a) In General.--Section 18(a) of the Indian Gaming 
     Regulatory Act (25 U.S.C. 2717(a)) is amended--
       (1) by redesignating paragraphs (4) through (6) as 
     paragraphs (5) through (7), respectively;
       (2) by striking ``(a)(1)'' and all that follows through the 
     end of paragraph (3) and inserting the following:
       ``(a) Annual Fees.--
       ``(1) Minimum regulatory fees.--In addition to assessing 
     fees pursuant to a schedule established under paragraph (2), 
     the Commission shall require each gaming operation that 
     conducts a class II or class III gaming activity that is 
     regulated by this Act to pay to the Commission, on a 
     quarterly basis, a minimum regulatory fee in an amount equal 
     to $250.
       ``(2) Class ii and class iii gaming fees.--
       ``(A) Class ii gaming fees.--
       ``(i) In general.--The Commission shall establish a 
     schedule of fees to be paid to the Commission that includes 
     fees for each class II gaming activity that is regulated by 
     this Act.
       ``(ii) Rate of fees.--For each gaming activity covered 
     under the schedule established under clause (i), the rate of 
     fees imposed under that schedule shall not exceed 2.5 percent 
     of the gross revenues of that gaming activity.
       ``(iii) Amount of fees assessed.--Subject to paragraph (3), 
     the total amount of fees imposed during any fiscal year under 
     the schedule established under clause (i) shall not exceed--

       ``(I) $5,000,000 for fiscal year 1998;
       ``(II) $8,000,000 for fiscal year 1999; and
       ``(III) $10,000,000 for fiscal year 2000, and for each 
     fiscal year thereafter.

       ``(B) Class iii gaming fees.--
       ``(i) In general.--The Commission shall establish a 
     schedule of fees to be paid to the Commission that includes 
     fees for each class III gaming activity that is regulated by 
     this Act.
       ``(ii) Rate of fees.--For each gaming activity covered 
     under the schedule established under clause (i), the rate of 
     fees imposed under that schedule shall not exceed 0.5 percent 
     of the gross revenues of that gaming activity.
       ``(iii) Amount of fees assessed.--Subject to paragraph (3), 
     the total amount of fees imposed during any fiscal year under 
     the schedule established under clause (i) shall not exceed--

       ``(I) $3,000,000 for fiscal year 1998;
       ``(II) $4,000,000 for fiscal year 1999; and
       ``(III) $5,000,000 for fiscal year 2000, and for each 
     fiscal year thereafter.

       ``(3) Graduated fee limitation.--
       ``(A) In general.--The aggregate amount of fees collected 
     under paragraph (2) shall not exceed--
       ``(i) $8,000,000 for fiscal year 1998;
       ``(ii) $12,000,000 for fiscal year 1999; and
       ``(iii) $15,000,000 for fiscal year 2000, and for each 
     fiscal year thereafter.
       ``(B) Factors for consideration.--In assessing and 
     collecting fees under this section, the Commission shall take 
     into account the duties of, and services provided by, the 
     Commission under this Act.
       ``(4) Special fund.--The Secretary of the Treasury shall 
     establish a special fund into which the Secretary of the 
     Treasury shall deposit amounts equal to the fees paid under 
     this subsection. The amounts deposited into the special fund 
     shall be used only to fund the activities of the Commission 
     under this Act.'';
       (3) in paragraph (5), as redesignated by paragraph (1) of 
     this section, by striking ``(5) Failure'' and inserting the 
     following:
       ``(5) Consequences of failure to pay fees.--Failure'';
       (4) in paragraph (6), as redesignated by paragraph (1) of 
     this section, by striking ``(6) To the extent'' and inserting 
     the following:
       ``(6) Credit.--To the extent''; and
       (5) in paragraph (7), as redesignated by paragraph (1) of 
     this section, by striking ``(7) For purposes of this 
     section,'' and inserting the following:
       ``(7) Gross revenues.--For purposes of this section,''.
       (b) Budget of Commission.--Section 18(b) of the Indian 
     Gaming Regulatory Act (25 U.S.C. 2717(b)) is amended--
       (1) by striking ``(b)(1) The Commission'' and inserting the 
     following:
       ``(b) Requests for Appropriations.--
       ``(1) In general.--The Commission'';
       (2) by striking paragraph (2) and inserting the following:
       ``(2) Contents of budget.--For fiscal year 1998, and for 
     each fiscal year thereafter, the budget of the Commission may 
     include a request for appropriations, as authorized by 
     section 19, in an amount equal to the sum of--
       ``(A)(i) for fiscal year 1998, an estimate (determined by 
     the Commission) of the amount of funds to be derived from the 
     fees collected under subsection (a) for that fiscal year; or
       ``(ii) for each fiscal year thereafter, the amount of funds 
     derived from the fees collected under subsection (a) for the 
     fiscal year preceding the fiscal year for which the 
     appropriation request is made; and
       ``(B) $1,000,000.''.

     SEC. 2. AUTHORIZATION OF APPROPRIATIONS.

       Section 19 of the Indian Gaming Regulatory Act (25 U.S.C. 
     2718) is amended to read as follows:

     ``SEC. 19. AUTHORIZATION OF APPROPRIATIONS.

       ``Subject to section 18, for fiscal year 1998, and for each 
     fiscal year thereafter, there are authorized to be 
     appropriated to the Commission an amount equal to the sum 
     of--
       ``(1)(A) for fiscal year 1998, an estimate (determined by 
     the Commission) of the amount of funds to be derived from the 
     fees collected under subsection (a); or
       ``(B) for each fiscal year thereafter, the amount of funds 
     derived from the fees collected under subsection (a) for the 
     fiscal year preceding the fiscal year; and
       ``(2) $1,000,000.''.

  Mr. INOUYE. Mr. President, I am pleased to join my chairman today, 
Senator Ben Nighthorse Campbell, as a cosponsor of legislation to 
provide for an amendment in authorizing legislation that will enable 
the National Indian Gaming Commission to adjust the manner in which 
fees are imposed on the gaming operations that are subject to 
regulation under the Indian Gaming Regulatory Act of 1988.
  Mr. President, it has been 9 years since the Indian Gaming Regulatory 
Act was enacted into law. In the ensuing years, there has been a 
substantial increase in the number of tribal government-sponsored 
gaming operations, as well as a significant shift in the number of 
operations that are engaged in the conduct of class III gaming 
operations.
  The bill we introduce today might be considered as companion 
legislation to a bill introduced earlier this week by Senator John 
McCain, and a bill that Senator Campbell is developing for introduction 
in the fall. All three measures are intended to reflect the 
contemporary realities of tribal gaming and the need for a regulatory 
framework that can respond to the growth in Indian gaming.
  Mr. President, we proceed with this separate legislation because of 
the pressing need to assure that the Commission is adequately funded, 
and that the Commission has the capacity, independent of Federal 
appropriations, to address a far wider array of regulatory demands than 
we could have anticipated in 1988.
                                 ______
                                 

                              By Mr. MACK:

  S. 1131. A bill to amend the Internal Revenue Code of 1986 to 
permanently extend the research credit; to the Committee on Finance.


          research and experimentation tax credit legislation

  Mr. MACK. Mr. President, we have good reason to celebrate what we 
have just accomplished by passing the Taxpayer Relief Act of 1997.
  We set out to help families pay for the education of their kids. It's 
done. We set out to provide a $500 credit for children. It's done. We 
set out to provide meaningful death tax relief. It's done. We set out 
to expand IRA's to encourage savings. It's done. We set out to provide 
significant capital gains relief. And it's done, too.
  The Taxpayer Relief Act is a great victory for the American people. 
But we cannot rest on this accomplishment, when there is much else that 
needs to be done. I am today introducing legislation to permanently 
extend the research and experimentation tax credit. In the tax bill we 
just passed, the research and experimentation tax credit is extended a 
mere 13 months, to June 30, 1998. This extension is disappointing.
  The research credit has provided a valuable economic incentive for 
U.S. companies to increase their investment in research and development 
in order to maintain their competitive edge in the global marketplace. 
A permanent extension of the research credit is critical to fast-
growing research-intensive companies such as those in the computer, 
telecommunications, and biotechnology industries.
  For these companies, an incentive to increase investment in research 
plays a critical role in determining whether future research projects, 
many of which span many years in length, are started, continued, or 
abandoned. The incentive benefit of the current research credit is 
reduced because of its temporary and uncertain nature. The bill I am 
today introducing will correct this problem, and make the research tax 
credit an incentive that our high-technology companies can count on.
                                 ______
                                 
      By Mr. BINGAMAN:
  S. 1132. A bill to modify the boundaries of the Bandelier National 
Monument to include the lands within the headwaters of the Upper Alamo 
Watershed which drain into the monument and which are not currently 
within the

[[Page S8597]]

jurisdiction of a Federal land management agency, to authorize purchase 
or donation of those lands, and for other purposes; to the Committee on 
Energy and Natural Resources.


    The Bandelier National Monument Administrative Improvement and 
                    Watershed Protection Act of 1997

  Mr. BINGAMAN. Mr. President, I rise today to introduce a bill to 
extend the boundaries of the Bandelier National Monument. Since 1916 
when President Wilson created the monument to protect the 
``archeological resources of a vanished people,'' both Congress and the 
President have adjusted the monument's boundaries on numerous occasions 
to protect these treasures, and the ecological balance within the 
monument. The latest example was in 1976, when Congress set aside over 
70 percent of the monument to create the Bandelier Wilderness area. 
Because we have acted to conserve this valuable land in the past, 
today's visitors to the monument, the people of New Mexico and 
Americans from around the Nation, have a wonderful place to go to. In 
the same morning you can see varieties of wildlife, including herds of 
elk and deer, and explore the homes of early native American peoples. 
This bill continues that foresighted tradition of protection.
  The greatest threat to the monument at this time is potential 
development in the upper watershed that drains into the park. Not only 
could this impair the esthetic experience of visitors to the monument, 
it could seriously harm the ecological balance within the monument. The 
potential for soil erosion, flooding, and siltation of streams from 
upstream development is of grave concern, and this bill seeks to 
address the problem. Under this bill the boundaries of the monument 
would be extended to include all of the lands which are not currently 
in public ownership in the upper Alamo watershed which drains into the 
monument.
  This bill will allow the Park Service to enter into agreements with 
private landowners to either purchase their land, or to restrict the 
development of their land in order to protect the monument. I want to 
note that the current landowners support this, and have stated that 
they would like to enter into such agreements that will protect the 
monument for future generations. Because of this, I have written this 
bill to give the Park Service authority to enter into contracts with 
willing sellers. This bill does not give the Park Service condemnation 
authority.
  Mr. President, because we have a situation where we can protect this 
treasure for generations to come with the help and cooperation of the 
private landowners that neighbor the monument, I am pleased to offer 
this bill.
  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. 1132

       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 ``Bandelier National Monument 
     Administrative Improvement and Watershed Protection Act of 
     1997.''

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that:
       (1) Bandelier National Monument (hereinafter, the Monument) 
     was established by Presidential proclamation on February 11, 
     1916, to preserve the archeological resources of a ``vanished 
     people, with as much land as may be necessary for the proper 
     protection thereof * * *'' (No. 1322; 39 Stat. 1746).
       (2) At various times since its establishment, the Congress 
     and the President have adjusted the Monument's boundaries and 
     purpose to further preservation of archeological and natural 
     resources within the Monument:
       (A) On February 25, 1932, the Otowi Section of the Santa Fe 
     National Forest (some 4,699 acres of land) was transferred to 
     the Monument from the Santa Fe National Forest (Presidential 
     Proclamation No. 1191; 17 Stat. 2503);
       (B) In December 1959, 3,600 acres of Frijoles Mesa were 
     transferred to the National Park Service from the Atomic 
     Energy Committee (hereinafter, AEC) and subsequently added to 
     the Monument on January 9, 1991, because of ``pueblo-type 
     archeological ruins germane to those in the Monument'' 
     (Presidential Proclamation No. 3388);
       (C) On May 27, 1963, Upper Canyon, 2,882 acres of land 
     previously administered by the AEC, was added to the Monument 
     to preserve ``their unusual scenic character together with 
     geologic and topographic features, the preservation of which 
     would implement the purposes'' of the Monument (Presidential 
     Proclamation No. 3539);
       (D) In 1976, concerned about upstream land management 
     activities that could result in flooding and erosion in the 
     Monument, Congress included the headwaters of the Rito de los 
     Frijoles and the Canada de Cochiti Grant (a total of 7,310 
     acres) within the Monument's boundaries (Pub. L. 94-578; 90 
     Stat. 2732); and
       (E) In 1976, Congress created the Bandelier Wilderness, a 
     23,267-acre area that covers over 70 percent of the Monument.
       (3) The Monument still has potential threats from flooding, 
     erosion, and water quality deterioration because of the mixed 
     ownership of the upper watersheds along its western border, 
     particularly in Alamo Canyon.
       (b) Purposes.--The purposes of this Act are to modify the 
     boundary of the Monument to allow for acquisition and 
     enhanced protection of the lands within the monument's upper 
     watershed.

     SEC. 3. BOUNDARY MODIFICATION.

       Effective on the date of enactment of this Act, the 
     boundaries of the Monument shall be modified to include 
     approximately 935 acres of land comprised of the Elk Meadows 
     subdivision, the Gardner parcel, the Clark parcel, and the 
     Baca Land & Cattle Co. lands within the Upper Alamo watershed 
     as depicted on the National Park Service map entitled ``Alamo 
     Headwaters Proposed Additions'' dated 06/97. Such map shall 
     be on file and available for public inspection in the offices 
     of the Director of the National Park Service, Department of 
     the Interior.

     SEC. 4. TRANSFER AND ACQUISITION OF LANDS.

       Within the boundaries designated by this Act, the Secretary 
     of the Interior is authorized to acquire lands (or interests 
     in land such as he determines shall adequately protect the 
     Monument from flooding, erosion, and degradation of its 
     drainage waters) by donation, purchase with donated or 
     appropriated funds, exchange, or transfer of lands acquired 
     by other Federal agencies.

     SEC. 5. ADMINISTRATION.

       The Secretary of the Interior, acting through the Director 
     of the National Park Service, shall manage the national 
     monument, including lands added to the Monument by this Act, 
     in accordance with this Act and the provisions of law 
     generally applicable to units of the National Park System, 
     including the Act of August 25, an act to establish a 
     National Park Service (39 Stat. 535; 16 U.S.C. 1 et seq.), 
     and such specific legislation as heretofore has been enacted 
     regarding the Monument.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated such sums as may be 
     necessary to carry out the purpose of this Act.
                                 ______
                                 
      By Mrs. MURRAY (for herself, Mr. Craig, Mr. Wyden, Mr. Baucus, 
        Mr. Murkowski, Mr. Smith of Oregon, Mr. Burns, Mr. Gorton, and 
        Mr. Kempthorne):
  S. 1134. A bill granting the consent and approval of Congress to an 
interstate forest fire protection compact; to the Committee on the 
Judiciary.


                     the northwest wildfire compact

  Mrs. MURRAY. Mr. President, today I am introducing the Northwest 
Wildland Fire Protection Agreement. This compact will help our States 
throughout the Northwest respond more quickly and efficiently to 
wildfires. Senators Craig, Wyden, Murkowski, Kempthorne, Gorton, G. 
Smith, Baucus, and Burns have joined me as original cosponsors because 
this compact affects all of our States of Washington, Oregon, Alaska, 
Idaho, and Montana. It establishes an agreement with the provinces of 
Alberta, British Columbia, and the Yukon Territory to mutually aid in 
prevention, pre-suppression and control of forest fires.
  Mr. State's Commissioner of Public Lands, Jennifer Belcher, brought 
this compact to my attention. She explained how for the State of 
Washington, this means the Department of Natural Resources will have 
access to the excellent firefighting tools of British Columbia, 
including helicopters and other aircraft stationed close to the border. 
This will increase her ability to quickly mobilize forces to suppress 
wildfires that might otherwise get out of control.
  The Washington DNR has been fighting wildfires since the early 
1900's. According to a DNR Forest Fire Study, in the past 25 years, the 
department has fought 28,000-plus wildfires involving more than 370,000 
acres of Washington forest land. In recent years, firefighting budgets 
have decreased and the intensity of fires has increased, with the 
terrible fire season of 1994 breaking the record at 79,000 acres burned 
in Washington. We need this compact to enable our States to better 
protect the life and property of our citizens.

[[Page S8598]]

  All eight affected States and provinces have agreed to this compact. 
However, before the States and Provinces can legally enter this 
agreement, the U.S. Congress must pass enabling legislation. Congress 
did so in 1952 with the wildfire compact after which this legislation 
was patterned, which was signed by five northeastern States and eastern 
Provinces, and remains in effect today.
  I urge my colleagues to help us move this compact through the process 
so our States will be poised to quickly and cost-efficiently suppress 
dangerous wildfires. I would also like to urge colleagues to support 
another compact introduced by Senator Craig and cosponsored by all 
Northwest Senators to help us join forces in cases of natural 
disasters.
  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. 1134

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

     SECTION 1. CONSENT OF CONGRESS.

       (a) In General.--The consent and approval of Congress is 
     given to an interstate forest fire protection compact, as set 
     out in subsection (b).
       (b) Compact.--The compact reads substantially as follows:
           ``THE NORTHWEST WILDLAND FIRE PROTECTION AGREEMENT
       ``THIS AGREEMENT is entered into by and between the State, 
     Provincial, and Territorial wildland fire protection agencies 
     signatory hereto, hereinafter referred to as ``Members''.
       ``FOR AND IN CONSIDERATION OF the following terms and 
     conditions, the Members agree:
                              ``Article I
       ``1.1  The purpose of this Agreement is to promote 
     effective prevention, presuppression and control of forest 
     fires in the Northwest wildland region of the United States 
     and adjacent areas of Canada (by the Members) by providing 
     mutual aid in prevention, presuppression and control of 
     wildland fires, and by establishing procedures in operating 
     plans that will facilitate such aid.
                              ``Article II
       ``2.1  The agreement shall become effective for those 
     Members ratifying it whenever any two or more Members, the 
     States of Oregon, Washington, Alaska, Idaho, Montana, or the 
     Yukon Territory, or the Province of British Columbia, or the 
     Province of Alberta have ratified it.
       ``2.2  Any State, Province, or Territory not mentioned in 
     this Article which is contiguous to any Member may become a 
     party to this Agreement subject to unanimous approval of the 
     Members.
                             ``Article III
       ``3.1  The role of the Members is to determine from time to 
     time such methods, practices, circumstances and conditions as 
     may be found for enhancing the prevention, presuppression, 
     and control of forest fires in the area comprising the 
     Member's territory; to coordinate the plans and the work of 
     the appropriate agencies of the Members; an to coordinate the 
     rendering of aid by the Members to each other in fighting 
     wildland fires.
       ``3.2  The Members may develop cooperative operating plans 
     for the programs covered by this Agreement. Operating plans 
     shall include definition of terms, fiscal procedures, 
     personnel contacts, resources available, and standards 
     applicable to the program. Other sections may be added as 
     necessary.
                              ``Article IV
       ``4.1  A majority of Members shall constitute a quorum for 
     the transaction of its general business. Motions of Members 
     present shall be carried by a simple majority except as 
     stated in Article II. Each Member will have one vote on 
     motions brought before them.
                              ``Article V
       ``5.1  Whenever a Member requests aid from any other Member 
     in controlling or preventing wildland fires, the Members 
     agree, to the extent they possibly can, to render all 
     possible aid.
                              ``Article VI
       ``6.1  Whenever the forces of any Member are aiding another 
     Member under this Agreement, the employees of such Member 
     shall operate under the direction of the officers of the 
     Member to which they are rendering aid and be considered 
     agents of the Member they are rendering aid to and, 
     therefore, have the same privileges and immunities as 
     comparable employees of the Member to which the are rendering 
     aid.
       ``6.2  No Member or its officers or employees rendering aid 
     within another State, Territory, or Province, pursuant to 
     this Agreement shall be liable on account of any act or 
     omission on the part of such forces while so engaged, or on 
     account of the maintenance or use of any equipment or 
     supplies in connection therewith to the extent authorized by 
     the laws of the Member receiving the assistance. The 
     receiving Member, to the extent authorized by the laws of the 
     State, Territory, or Province, agrees to indemnify and save-
     harmless the assisting Member from any such liability.
       ``6.3  Any Member rendering outside aid pursuant to this 
     Agreement shall be reimbursed by the Member receiving such 
     aid for any loss or damage to, or expense incurred in the 
     operation of any equipment and for the cost of all materials, 
     transportation, wages, salaries and maintenance of personnel 
     and equipment incurred in connection with such request in 
     accordance with the provisions of the previous section. 
     Nothing contained herein shall prevent any assisting Member 
     from assuming such loss, damage, expense or other cost or 
     from loaning such equipment or from donating such services to 
     the receiving Member without charge or cost.
       ``6.4  for purposes of the Agreement, personnel shall be 
     considered employees of each sending Member for the payment 
     of compensation to injured employees and death benefits to 
     the representatives of deceased employees injured or killed 
     while rendering aid to another Member pursuant to this 
     Agreement.
       ``6.5  The Members shall formulate procedures for claims 
     and reimbursement under the provisions of this Article.
                             ``Article VII
       ``7.1  When appropriations for support of this agreement, 
     or for the support of common services in executing this 
     agreement, are needed, costs will be allocated equally among 
     the Members.
       ``7.2  As necessary, Members shall keep accurate books of 
     account, showing in full, its receipts and disbursements, and 
     the books of account shall be open at any reasonable time to 
     the inspection of representatives of the Members.
       ``7.3  The Members may accept any and all donations, gifts, 
     and grants of money, equipment, supplies, materials and 
     services from the Federal or any local government, or any 
     agency thereof and from any person, firm or corporation, for 
     any of its purposes and functions under this Agreement, and 
     may receive and use the same subject to the terms, 
     conditions, and regulations governing such donations, gifts, 
     and grants.
                             ``Article VIII
       ``8.1  Nothing in this Agreement shall be construed to 
     limit or restrict the powers of any Member to provide for the 
     prevention, control, and extinguishment of wildland fires or 
     to prohibit the enactment of enforcement of State, 
     Territorial, or Provincial laws, rules or regulations 
     intended to aid in such prevention, control and 
     extinguishment of wildland fires in such State, Territory, or 
     Province.
       ``8.2  Nothing in this Agreement shall be construed to 
     affect any existing or future Cooperative Agreement between 
     Members and/or their respective Federal agencies.
                              ``Article IX
       ``9.1  The Members may request the United States Forest 
     Service to act as the coordinating agency of the Northwest 
     Wildland Fire Protection Agreement in cooperation with the 
     appropriate agencies for each Member.
       ``9.2  The Members will hold an annual meeting to review 
     the terms of this Agreement, any applicable Operating Plans, 
     and make necessary modifications.
       ``9.3  Amendments to this Agreement can be made by simple 
     majority vote of the Members and will take effect immediately 
     upon passage.
                              ``Article X
       ``10.1  This Agreement shall continue in force on each 
     Member until such Member takes action to withdraw therefrom. 
     Such action shall not be effective until 60 days after notice 
     thereof has been sent to all other Members.
                              ``Article XI
       ``11.1  Nothing is this Agreement shall obligate the funds 
     of any Member beyond those approved by appropriate 
     legislative action.''.

     SEC. 2. OTHER STATES.

       Without further submission of the compact, the consent of 
     Congress is given to any State to become a party to it in 
     accordance with its terms.

     SEC. 3. RIGHTS RESERVED.

       The right to alter, amend, or repeal this Act is expressly 
     reserved.
                                 ______
                                 
      By Mr. McCONNELL:
  S. 1135. A bill to provide certain immunities from civil liability 
for trade and professional associations, and for other purposes; to the 
Committee on the Judiciary.


  THE TRADE AND PROFESSIONAL ASSOCIATION FREE FLOW OF INFORMATION ACT

  Mr. McCONNELL. Mr. President, I rise today to introduce the Trade and 
Professional Association Free Flow of Information Act, and ask my 
colleagues to join me by co-sponsoring this important legislation.
  Our society is increasingly litigious, especially in the area of 
product liability. Unfortunately, complex product liability litigation 
ensnares trade and professional associations that do not manufacture, 
buy, or sell the product. America's litigation maze often traps 
associations who do nothing more than publish good-faith factual 
information for its members regarding various products.

[[Page S8599]]

  This service is particularly helpful to small business owners who 
become involved in product litigation, but lack the funds to conduct 
expensive and time-consuming product research. Additionally, trade and 
professional associations help their members to avoid litigation by 
alerting them to critical characteristics of different products. This 
research and information service is clearly in the best interest of 
both consumers and small businesses.
  My bill would acomplish three goals. First, it grants trade and 
professional associations limited protection from liability when acting 
in good faith to provide information to their members. The associations 
may still be held liable for fraudulently or recklessly distributing 
false information to their members.
  Second, before information may be subpoenaed from an association, a 
clear case must be made that the information is vital to the case and 
is unavailable from any other source. Let me point out, however, that 
this provision does not prevent associations from being served with 
subpoenas. It merely ensures that the information requested is vital to 
a particular action and unavailable from any other source.
  Finally, the bill establishes a qualified privilege between an 
association and its members to ensure that confidential materials can 
be provided for the benefit of association members. This privilege is 
not absolute--it may be overcome upon proof that the party seeking the 
materials has a compelling need for the information. This provision is 
based on a joint defense privilege currently recognized by state and 
federal courts.
  Additionally, this bill includes an opt-out provision similar to the 
one we included in the Volunteer Protection Act, which the President 
recently signed into law. This provision permits a State to opt-out of 
the bill's coverage in any civil action in which all parties are 
citizens of the State.
  Mr. President, the need for this bill was recently discussed in an 
article of the Legal Times. I ask unanimous consent that this article 
be published in the Record.
  In closing, I would like to emphasize that this bill will allow 
associations to continue to actively disseminate valuable information 
to their members, while safeguarding current legal protections against 
fraud and abuse. The goal of the Free Flow of Information Act is one 
that I believe I share with a majority of my colleagues--a decrease in 
costly litigation coupled with an increase in the flow of information 
between associations and their members. I urge my colleagues to 
cosponsor this important legislation.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1135

       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 ``Trade and Professional 
     Association Free Flow of Information Act of 1997''.

     SEC. 2. FINDINGS; PURPOSES.

       (a) Findings.--Congress finds that--
       (1) trade and professional associations serve the public 
     interest by conducting research, collecting and distributing 
     information, and otherwise providing services to their 
     members with regard to products and materials purchased and 
     used by those members;
       (2) in the decade preceding the date of enactment of this 
     Act, many large class action lawsuits have been filed against 
     manufacturers for allegedly defective products;
       (3) as a result of the lawsuits referred to in paragraph 
     (2), many members of trade and professional associations who 
     are consumers of those products have relied increasingly on 
     trade and professional associations for information 
     concerning those products, including information concerning--
       (A) the conditions under which such a product may be used 
     effectively;
       (B) whether it is necessary to repair or replace such a 
     product, and if such a repair or replacement is necessary, 
     the appropriate means of accomplishing that repair or 
     replacement; and
       (C) any litigation concerning such a product;
       (4) trade and professional associations have, with an 
     increasing frequency, been served broad and burdensome third-
     party subpoenas from litigants in product defect lawsuits, 
     including class action lawsuits;
       (5) members of trade and professional associations are 
     seeking potentially beneficial information relating to 
     product defects, quality, or performance from the trade and 
     professional associations;
       (6) trade and professional associations have been subject 
     to lawsuits concerning methods of collection and 
     dissemination of that information;
       (7) the burden of responding to third-party subpoenas in 
     product defect lawsuits and the threat of litigation have had 
     a substantial chilling effect on the ability and willingness 
     of trade and professional associations to disseminate 
     information described in paragraph (5) to members, and the 
     threat that information provided on a confidential basis to 
     members could be subject to discovery in a civil action also 
     has a chilling effect;
       (8) because of the national scope of the problems described 
     in paragraphs (1) through (7), it is not possible for States 
     to fully address the problems by enacting State laws; and
       (9) the Federal Government has the authority under the 
     United States Constitution (including article I, section 8, 
     clause 3 of the Constitution and the 14th amendment to the 
     Constitution) to remove barriers to interstate commerce and 
     protect due process rights.
       (b) Purposes.--The purposes of this Act are to promote the 
     free flow of goods and services and lessen burdens on 
     interstate commerce in accordance with the authorities 
     referred to in subsection (a)(9) by ensuring the free flow of 
     information concerning product defects, quality, or 
     performance among trade and professional associations and 
     their members.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Product.--
       (A) In general.--The term ``product'' means any object, 
     substance, mixture, or raw material in a gaseous, liquid, or 
     solid state that--
       (i) is capable of delivery itself or as an assembled whole, 
     in a mixed or combined state, or as a component part or 
     ingredient;
       (ii) is produced for introduction into trade or commerce;
       (iii) has intrinsic economic value; and
       (iv) is intended for sale or lease to persons for 
     commercial or personal use, including improvements to real 
     property and fixtures that are affixed or incorporated into 
     those improvements.
       (B) Exclusions.--The term does not include--
       (i) tissue, organs, blood, and blood products used for 
     therapeutic or medical purposes, except to the extent that 
     such tissue, organs, blood, and blood products (or the 
     provision thereof) are subject, under applicable State law, 
     to a standard of liability other than negligence; or
       (ii) electricity, natural gas, or steam.
       (2) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, and 
     any commonwealth, territory, or possession of the United 
     States.
       (3) Trade or professional association.--The term ``trade or 
     professional association'' means an organization described in 
     paragraph (3), (4), (5), or (6) of section 501(c) of the 
     Internal Revenue Code of 1986 that is exempt from taxation 
     under section 501(a) of such Code.

     SEC. 3. QUALIFIED EXEMPTION FROM CIVIL LIABILITY.

       (a) In General.--
       (1) In general.--Except as provided in subsection (b), a 
     trade or professional association shall not be subject to 
     civil liability relating to harm caused by the provision of 
     information described in paragraph (2) by the trade or 
     professional association to a member of the trade or 
     professional association.
       (2) Information.--The information described in this 
     paragraph is information relating to a product concerning--
       (A) the quality of the product;
       (B) the performance of the product; or
       (C) any defect of the product.
       (3) Applicability.--This subsection applies with respect to 
     civil liability under Federal or State law.
       (b) Exception for Liability.--Subsection (a) shall not 
     apply with respect to harm caused by an act of a trade or 
     professional association that a court determines, on the 
     basis of clear and convincing evidence, to have been caused 
     by the trade or professional association by the provision of 
     information described in subsection (a)(2) that the trade or 
     professional association--
       (1) knew to be false; or
       (2) provided a reckless indifference to the truth or 
     falsity of that information.

     SEC. 4. SPECIAL MOTION TO STRIKE.

       A trade or professional association may file a special 
     motion to strike any claim in any judicial proceeding against 
     the trade or professional association on the ground that the 
     claim is based on an act with respect to which the 
     association is exempt from liability under section 3.

     SEC. 5. REQUIRED PROCEDURES REGARDING SPECIAL MOTION TO 
                   STRIKE.

       (a) Treatment of Motion.--Upon the filing of any motion 
     under section 4--
       (1) to the extent consistent with this section, the motion 
     shall be treated as a motion for summary judgment under Rule 
     56 of the Federal Rules of Civil Procedure (or an equivalent 
     motion under applicable State law); and
       (2) the trial court shall hear the motion within a period 
     of time that is appropriate for preferred or expedited 
     motions.

[[Page S8600]]

       (b) Suspension of Discovery.--Upon the filing of a motion 
     under section 4, discovery shall be suspended pending a 
     decision on--
       (1) the motion; and
       (2) any appeal on the ruling on the motion.
       (c) Burden of Proof.--The responding party shall have the 
     burden of proof in presenting evidence that a motion filed 
     under section 4 should be denied.
       (d) Basis of Determination.--A court shall make a 
     determination on a motion filed under section 4 on the basis 
     of the facts contained in the pleadings and affidavits filed 
     in accordance with this section.
       (e) Dismissal.--With respect to a claim that is the subject 
     of a motion filed under section 4, the court shall grant the 
     motion and dismiss the claim, unless the responding party has 
     produced evidence that would be sufficient for a reasonable 
     finder of fact to conclude, on the basis of clear and 
     convincing evidence, that the moving party is not exempt from 
     liability for that claim under section 3.
       (f) Costs.--If a moving party prevails in procuring the 
     dismissal of a claim as a result of a motion made under 
     section 4, the court shall award that party the costs 
     incurred by the party in connection with making the motion, 
     including reasonable attorney and expert witness fees.

     SEC. 6. QUALIFIED EXEMPTION FROM THIRD-PARTY DISCOVERY.

       (a) In General.--Notwithstanding any other provision of 
     law, a trade or professional association may only be served 
     with a subpoena in a civil action described in subsection (b) 
     if the party that serves the subpoena first establishes to 
     the court, by clear and convincing evidence that--
       (1) the materials or information sought by the subpoena are 
     directly relevant to the civil action; and
       (2) the party serving the subpoena has a compelling need 
     for the materials or information because the materials or 
     information are not otherwise available.
       (b) Civil Actions Described.--A civil action described in 
     this subsection is a civil action--
       (1) relating to the quality, performance, or defect of a 
     product; and
       (2) to which the trade or professional association involved 
     is not a party.

     SEC. 7. SPECIAL MOTION TO QUASH A SUBPOENA.

       A trade or professional association may file a special 
     motion to quash a subpoena on the grounds that the trade or 
     professional association is exempt from any third-party 
     discovery request under section 6.

     SEC. 8. REQUIRED PROCEDURES REGARDING SPECIAL MOTION TO 
                   QUASH.

       (a) In General.--Upon the filing of any motion under 
     section 7, the trial court shall hear the motion within the 
     period of time that is appropriate for preferred or expedited 
     motions.
       (b) Suspension of Compliance.--Upon the filing of a motion 
     under section 7, the court shall not compel compliance with 
     the subpoena during the period during which--
       (1) the motion is under consideration; or
       (2) an appeal on the determination by the court to deny the 
     motion has not resulted in a final ruling by the court on the 
     appeal.
       (c) Burden of Proof.--The responding party shall have the 
     burden of proof in presenting evidence that a motion filed 
     under section 7 should be denied.
       (d) Basis of Determination.--A court shall make a 
     determination on a motion filed under section 7 on the basis 
     of the facts contained in the pleadings and affidavits filed 
     in accordance with this section.
       (e) Quashing a Subpoena.--The court shall grant a motion 
     filed under section 7 and quash the subpoena that is the 
     subject of the motion, unless the responding party proves, by 
     clear and convincing evidence, that the trade or professional 
     association that received the subpoena is not exempt from 
     responding to the subpoena under section 6.
       (f) Costs.--If a trade or professional association prevails 
     in procuring the quashing of a subpoena as a result of a 
     motion made under section 7, the court shall award the trade 
     or professional association the costs incurred by that trade 
     or professional association in connection with making the 
     motion, including reasonable attorney and expert witness 
     fees.

     SEC. 9. RIGHT TO OBJECT UNDER RULE 45 OF THE FEDERAL RULES OF 
                   CIVIL PROCEDURE.

       Nothing in this Act may be construed to impair the right of 
     a trade or professional association to serve written 
     objections under rule 45(c)(2)(B) of the Federal Rules of 
     Civil Procedure, or any similar rule or procedure under 
     applicable State law.

     SEC. 10. QUALIFIED ASSOCIATION-MEMBER PRIVILEGE.

       (a) In General.--Except as provided in subsection (b), a 
     member of a trade or professional association shall not be 
     required to disclose any information described in section 
     3(a)(2), including any materials containing that information, 
     that--
       (1) relates to actual or anticipated litigation involving 
     the quality, performance, or defect of a product;
       (2) is considered to be confidential by the trade or 
     professional association and that member; and
       (3) is communicated by the trade or professional 
     association with the reasonable expectation that the 
     information will--
       (A) be used in connection with actual or anticipated 
     litigation; and
       (B) be maintained in confidence.
       (b) Exception.--Subsection (a) does not apply in any action 
     in which a party seeking information described in that 
     subsection has established to a court, by clear and 
     convincing evidence, that--
       (1) the materials or information sought are directly 
     relevant to an action filed by that party; and
       (2) the party has a compelling need for the information 
     because the information is not otherwise obtainable.

     SEC. 11. ELECTION OF STATE REGARDING NONAPPLICABILITY.

       This Act shall not apply to any civil action in a State 
     court with respect to which all of the parties are citizens 
     of that State, if that State enacts, pursuant to applicable 
     State law, a State statute that--
       (1) cites the authority of this section;
       (2) specifies that the State elects to be exempt from the 
     requirements of this Act pursuant to this section; and
       (3) contains no other provisions.

     SEC. 12. PREEMPTION; APPLICABILITY.

       (a) Preemption.--This Act supersedes the laws of any State 
     to the extent such State laws apply to matters to which this 
     Act applies.
       (b) Applicability.--Except as provided in section 11, and 
     subject to subsection (a), this Act applies to any civil 
     action that is pending or commenced in a Federal or State 
     court, on or after the date of enactment of this Act.
                                                                    ____


                 [From the Legal Times, July 28, 1997]

Limiting Liability--Trade Groups Back Bill Aimed at Shielding Them From 
                      Suits Over Advice to Members

                           (By T.R. Goldman)

       In the fall of 1987, Kenneth Halpern dove into his backyard 
     swimming pool in Mobile, Ala., broke his neck on the pool 
     bottom, and set off a chain of litigation that would send 
     shock waves through the trade association community for 
     years.
       Halpern was paralyzed in the dive and died less than a year 
     later. The suit seeking restitution for his death named the 
     pool's builder as a defendant. But Halpern's suit went one 
     step further, also naming as a defendant the pool builders' 
     trade group, the National Spa and Pool Institute.
       Unfortunately for the trade group, the Alabama Supreme 
     Court in 1990 bought Halpern's argument, at least in part. By 
     disseminating standards for pool construction to its members, 
     the court reasoned, the trade group opened itself to 
     potential liability for injuries caused in a pool.
       While the Pool Institute was not ultimately found liable 
     for Halpern's death, the group spent hundreds of thousands of 
     dollars proving that its standards were in fact sufficient to 
     prevent injury. And the case left behind a menacing state 
     precedent for trade groups of all stripes, leaving them 
     vulnerable to all manner of liability suits.
       Earlier this year, with the Alabama pool case and others 
     like it in mind, the trade association world called on 
     Capitol Hill for a legislative fix.
       Their savior, they hope, will be Rep. Sonny Bono, the Palm 
     Springs, Calif., Republican who in May introduced the Trade 
     and Professional Association Free Flow of Information Act.
       Bono's bill would set a national standard shielding 
     associations from lawsuits when providing information and 
     technical advice to their members. It would also allow 
     associations to refuse to respond to subpoenas--unless the 
     information is available only from the trade group and 
     nowhere else.
       The bill would also set up a type of privilege between a 
     trade association and its members so that the confidentiality 
     of documents flowing between the two would be assured.
       That's vitally important, explains General Counsel Daniel 
     Durden of the National Association of Home Builders, because 
     the fear of litigation has a chilling effect on the 
     industrywide mediation efforts trade associations are often 
     ideally situated to oversee.
       Take, for example, a widget installed in homes across the 
     country. Five years later, the widget fails, due to a design 
     flaw. ``The manufacturer of the widget gets sued, and the 
     people who put them in their homes--our members--get sued,'' 
     Durden says. ``And if it's a widespread problem, our members 
     will call us and say, `What can you do for us?'
       ``We can play a role in negotiating among the builders, 
     manufacturers, and potentially the insurance companies in 
     coming up with a stopgap measure, so the consumer of the 
     widget doesn't file suit,'' adds Durden, whose group is 
     actively supporting the Bono bill.
       But if the association gets involved in trying to find a 
     settlement, any information shared with it may no longer be 
     privileged, Durden says. And that, in turn, can dissuade 
     members from sharing information.
       ``The idea is that by acting in a fashion that forwards a 
     resolution, an association shouldn't get slammed,'' he says.
       Trial lawyers, of course, are deeply offended by the notion 
     that certain potential defendants should be off-limits, and 
     are vigorously opposed to the Bono bill.
       ``No association, corporation, or individual should be 
     immunized for responsibility for the injuries they cause,'' 
     Howard Twiggs, outgoing president of the Association of Trial 
     Lawyers of America, said through a spokesman. ``No citizen 
     should be denied the opportunity to hold wrongdoers 
     responsible for their actions.''
       Traditionally courts have held that a trade group was 
     obligated only to its members, not

[[Page S8601]]

     to the general public, for the accuracy and quality of the 
     standards it promulgates for its members. After all, the 
     groups argued, they could not properly be held responsible if 
     a builder failed to follow their guidelines.
       But the Alabama Supreme Court ruling changed all that, by 
     holding in King v. National Spa and Pool Institute that the 
     trade association did in fact have a ``duty'' to the public--
     regardless of whether it had control over its members' 
     behavior. (The named plaintiff is Barbara King, the 
     administrator of Halpem's estate.)
       ``What this case says is that if you put our standards and 
     somebody uses them, then you can be hauled into court and 
     made to show you used due care in producing them,'' complains 
     David Karmol, general counsel and chief lobbyist of the 
     Alexandria, Va.-based Spa and Pool Institute.
       ``We did use due process. We got comments from outsiders, 
     from the Consumer Product Safety Commission,'' says Karmol, 
     adding that his group has been disseminating pool standards 
     for 40 years. ``The point is, we did all the right things. 
     But if you have to prove that in court that you did all the 
     right things, you've already lost. We spent half a million 
     dollars winning. I don't know how many associations can 
     afford to win many half-million dollar cases on a regular 
     basis.''
       No shortage of groups have been called upon to try.
       According to Gerard Jacobs, a co-managing partner in the 
     D.C. office of Chicago's Jenner & Block, trade associations 
     are increasingly being hauled into court as defendants. ``I 
     can tell you that Jenner & Block has a dozen such cases,'' 
     says Jacobs. ``Higher than it's ever been.''
       Adds James Clarke, chief lobbyist at the American Society 
     of Association Executives, which is actively supporting 
     Bono's legislation: ``Groups are more and more fearful that 
     litigation will tie them up like pretzels.''


                               back pain

       Among the hardest hit have been four trade associations 
     that deal with spinal surgery--and are implicated in hundreds 
     of tort claims against the so-called ``pedicle screw,'' an 
     orthopedic device officially approved by the Food and Drug 
     Administration only for use in arm and leg bone 
     operations, though it is widely used in the pedicles of 
     the vertebrae during back surgery as well.
       According to hundreds of suits filed in recent years, the 
     Illinois-based North American Spine Society allegedly 
     conspired with pedicle screw manufacturers to help them 
     illegally promote their products for uses not approved by the 
     FDA.
       ``Because we accepted money from exhibitors for exhibit 
     space, charged them with a registration fee, and got some 
     research funding from them--and then turned around and let 
     certain doctors whom [trial lawyers] call product promotors 
     give talks at our annual meeting . . . we allegedly defrauded 
     our own members into thinking these things were safe,'' 
     complains Eric Muehlbauer, executive director of the Spine 
     Society.
       ``That's ludicrous,'' he argues. ``Why would we defraud our 
     own members? We were a forum provider, that's all.''
       Muehlbauer says more than 500 individuals have sued the 
     trade group for promoting the use of an ``unreasonably 
     dangerous'' product. ``Plaintiffs attorneys are giving each 
     other seminars on how to promote these lawsuits,'' he says, 
     adding that complaints have also been filed against the 
     American Academy of Orthopedic Surgeons, the American 
     Association of Neurological Surgeons, and the Scoliosis 
     Research Society.
       But, counters plaintiffs attorney Arnold Levin, by 
     accepting money from pedicle screw vendors, the Spine Society 
     becomes a legitimate defendant. ``By hosting the 
     manufacturers, by giving comfort to them, aiding and 
     assisting them, they became part of the selling arm, they 
     became part of the manufacturer,'' says Levin, a partner 
     in Philadelphia's Levin, Fishbein, Sedran & Berman, which 
     is litigating the issue.
       ``And they were trading in a product that hadn't been 
     approved for that use by the FDA,'' he adds.


                           standard procedure

       Down in Alabama, which has a reputation as one of the most 
     favorable places in America for the plaintiffs' bar, trial 
     lawyer Richard Cunningham of Mobile's Cunningham, Bounds, 
     Yance, Crowder & Brown says trade associations are not always 
     the neutral, consumer-friendly forces they often claim to be.
       Earlier this month, Cunningham won a potentially 
     multibillion dollar class action in a Mobile County, Ala., 
     circuit court against the Masonite Corp. for installing 
     faculty hard-board siding in more than four million homes. He 
     says many trade associations are not at all interested in 
     consumers, and have nothing more than their members' 
     interests at heart.
       ``The real problem is when you have a trade association 
     controlled by an industry and they intentionally promulgate 
     minimal standards which do not impose any burden on the 
     industry and do not create a safe product,'' he says.
       ``The state of the art standard for the industry could be 
     much higher than the minimal standards set, but it will cost 
     them much more money to meet that higher 
     standard,'' Cunningham continues.``But the industry can 
     use the minimal standards to say, `We were not negligent, 
     we met the existing standard of care.' In fact, there may 
     have been a collusive effort between industry on the whole 
     and the trade association to establish ineffective 
     standards.''
       That wasn't necessarily the case in the Masonite decision, 
     which includes a minimum of $47.5 million in legal fees for 
     the dozen or so law firms that took part in the class action. 
     But during the course of litigation, a subpoena was issued to 
     the Palatine, Ill.-based American Hardboard Association for 
     information about the testing of certain hardboard products.
       ``It is the practice of trial lawyers to go fishing at 
     trade association folks to see if there's anything negative 
     in the files, or whether the association ever warned about 
     this or that happening,'' says Karmol of the Spa and Pool 
     Institute, making the case for a legislative remedy.
       ``There's an argument to be made that if associations are 
     to advance the public interest, and allow members to talk 
     about things to avoid similar situations in the future, there 
     ought to be some kind of protection.''
       In fact, Karmol concedes, the number of times the institute 
     has been named in a lawsuit has not increased over time. 
     ``But I attribute that to our aggressive defense. Most trial 
     lawyers are looking for defendants who will role over and 
     kick in $100,000 to a settlement,'' he says.
       While it appears that nothing short of legislation will 
     stop associations from being drawn into court, those who have 
     represented such groups in these cases say there are ways to 
     avoid worsening their plight once there, including 
     maintaining a judicious level of discretion.
       If you don't want the court to construe that you have a 
     duty to the public, and hence can be targeted in a lawsuit, 
     don't brag to them about the information you disseminate, 
     says Jacobs, the Jenner & Block partner. And make sure your 
     standards are more than sufficient.
       ``Do your due diligence,'' counsels Jacobs. ``and don't 
     crow to consumers about the value of your program if it is 
     designed to assist members. It's much more difficult [to 
     defend yourself] when you make pronouncements at large.''
       Meanwhile, while the Bono legislation will undoubtedly face 
     stiff opposition in Congress--the trial lawyers remains a 
     formidable foe--supporters are cheered that at least the 
     issue is now getting some attention.
       ``It's in its infancy,'' acknowledges the ASAE's Clarke, 
     referring to the proposed legislation. ``But there will be 
     lots of work and lots of efforts in this area. We don't want 
     it to be seen as open season on associations.''
                                 ______
                                 
      By Mr. DURBIN:
  S. 1136. A bill to amend the Employee Retirement Income Security Act 
of 1974 to provide that the State preemption rules shall not apply to 
certain actions under State law to protect health insurance 
policyholders; to the Committee on Labor and Human Resources.


            THE EMPLOYEE HEALTH INSURANCE ACCOUNTABILITY ACT

  Mr. DURBIN. Mr. President, I rise today to introduce the Employee 
Health Insurance Accountability Act of 1997. This measure will hold 
employer-sponsored health maintenance organizations accountable for 
patient injuries that result from their decisions regarding a patient's 
medical care.
  Due to a loophole in the Employer Retirement Income Security Act of 
1974 [ERISA], employer-sponsored health plans can escape responsibility 
for the effect their treatment decisions have on their patients' 
health. Many courts have held that ERISA preempts State lawsuits 
against the entities that provide employee benefits and retirement 
plans. This includes medical malpractice suits against an employer-
sponsored HMO.
  There are two primary victims under the current system. The first 
victims are the patients who are injured, because they are wrongfully 
denied treatment services by their employer-sponsored HMO's. Let me 
tell you just one story:
  Due to her history of high-risk pregnancies, Ms. Florence Corcoran's 
physician determined that she should be hospitalized during the waning 
weeks of her pregnancy. Her employer-sponsored HMO disagreed and only 
authorized 10 hours a day of home nursing care. While the nurse was 
off-duty, Ms. Corcoran's unborn child suffered distress and died. Ms. 
Corcoran sued her employer-sponsored HMO, but the court held that ERISA 
preempted her claim. Ms. Corcoran, therefore, will never obtain proper 
redress for the death of her unborn child and her HMO will never be 
held accountable. She can only sue her doctor--not her employer-
sponsored HMO--even though her doctor was not at fault.
  Ms. Corcoran and others like her cannot bring suit in State court 
where they should rightfully receive redress for their losses. Instead, 
they are forced to sue in Federal court where they can only receive the 
cost of the medical benefit they were denied. In

[[Page S8602]]

short, Ms. Corcoran's unborn child died needlessly, and the only 
penalty to the HMO is the few hundred dollars it would have cost to 
properly hospitalize her.
  As Newsweek observed, if ``there's no financial penalty when 
[employer-sponsored] health plans are negligent, what's to stop these 
profit-driven creatures from delivering inadequate medical care?''
  The other victims of the current system are the doctors who end up in 
court and are left holding the bag for the actions of the employer-
sponsored HMO's. To quote the Chicage Tribune, ``[HMOs], which care for 
more than 60 million people, are telling courts across the country that 
they cannot be held responsible for medical malpractice in cases 
involving patients who receive care through an employer-sponsored 
health plan* * *. HMOs are shifting virtually all of the risk of 
patient care to physicians, even though the HMO's can force doctors to 
change their clinical decisions.''
  Again, let me demonstrate with a real life example:
  Mr. Basile Pappas was suffering from numbness in his arms and was 
unable to walk, so he sought treatment at a local community hospital at 
11 a.m. The emergency room doctor on staff made a difficult diagnosis 
and determined that Mr. Pappas had a cervical epidural abscess, a 
condition that was compressing his spinal cord. The emergency room 
doctor correctly concluded that unless Mr. Papas was treated 
immediately by a spinal cord trauma unit he could suffer severe 
paralysis.
  At 12:30 p.m. the emergency room doctor made arrangements to transfer 
Mr. Pappas to a local university hospital, the only hospital in the 
area with such a trauma unit. Mr. Pappas' employer-sponsored HMO, 
however, would not allow Mr. Pappas to be transferred to the university 
hospital because it was not part of his service plan. Even after the 
emergency room doctor explained to the employer-sponsored HMO the 
urgency of the situation, the HMO refused. Indeed, the employer-
sponsored HMO's physician who denied the treatment request refused to 
even speak to the emergency room doctor.
  The emergency room doctor expeditiously made other arrangements to 
transfer Mr. Pappas to a hospital with the appropriate facilities that 
could admit Mr. Pappas. Nonetheless, Mr. Pappas was not treated until 
3:30 p.m. and now suffers from permanent quadripliegia resulting from 
compression of his spine by the abscess. A court determined that the 
employer-sponsored HMO was immune from liability due to ERISA, but the 
hospital and Mr. Pappas' physicians were left paying for Mr. Pappas' 
injuries although they had little to no culpability.
  Congress clearly never intended ERISA to remove all consumer 
protection nor for it to be used as a tool by employer-sponsored HMO's 
to shirk their responsibilities. My bill, therefore, amends section 
514(b) of ERISA to clarify that State medical malpractice suits against 
an employer-sponsored HMO are not preempted by Federal law.
  The Employee Health Insurance Accountability Act resolves the current 
problem by doing three things:
  First, the measure holds employer-sponsored health insurance plans 
accountable for the consequences of their treatment rules and coverage 
determinations. This will increase patient protection, and create a 
powerful incentive for employer-sponsored HMO's to provide necessity 
care.
  Second, the measure provides patients with legal redress when their 
employer-sponsored HMO's treatment rules and coverage determinations 
cause them harm. Victims like Ms. Corcoran will no longer be left 
without the opportunity to seek just reparations for their injuries. 
And
  Finally, the measure reduces the likelihood that doctors will be sued 
for coverage determinations beyond their control. They will no longer 
face lawsuits simply because injured patients cannot properly hold 
their employer-sponsored HMO accountable.
  Thank you Mr. President for the opportunity to introduce this 
important initiative. I hope my colleagues will join with me and 
support the Employee Health Insurance Accountability Act in order to 
ensure that employer-sponsored HMO's can no longer escape liability for 
their actions.
  Mr. President, I ask unanimous consent that a copy of the legislation 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Employee Health Insurance 
     Accountability Act of 1997''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) employer-sponsored health insurers' treatment rules and 
     coverage determinations affect patients' receipts of health 
     care by restricting the health services that are available to 
     patients;
       (2) physicians' behavior is affected by employer-sponsored 
     health insurers' treatment and coverage determinations;
       (3) medical malpractice is almost exclusively within the 
     jurisdiction of the States;
       (4) section 514(a) of the Employer Retirement Income 
     Security Act of 1974 (29 U.S.C. 1144(a) (``ERISA'')) 
     generally preempts State lawsuits against the entities that 
     provide employee benefits and retirement plans while allowing 
     lawsuits against physicians;
       (5) there is a split among the United States Courts of 
     Appeals on whether ERISA preempts medical malpractice suits 
     against employer-sponsored health insurers;
       (6) in the jurisdictions in which the Courts of Appeals 
     have held that ERISA preempts medical malpractice suits 
     against employer-sponsored health insurers, patients who may 
     have been injured due to their employer-sponsored health 
     insurers' treatment and coverage determinations have been 
     left without a right of action under which to bring a lawsuit 
     to seek just redress for their injuries; and
       (7) it is, therefore, necessary to amend ERISA to clarify 
     that State medical malpractice suits against an employer-
     sponsored health insurer are not preempted.
       (b) Purposes.--The purposes of this Act are as follows:
       (1) To restore accountability to employer-sponsored health 
     insurers for the impact of their treatment rules and coverage 
     determinations on patients' health.
       (2) To increase patient protection from adverse effects on 
     their health due to their employer-sponsored health insurers' 
     treatment rules and coverage determinations.
       (3) To provide patients with legal redress when their 
     employer-sponsored health insurers' treatment rules and 
     coverage determinations cause them harm.
       (4) To provide more equitable assignment of liability among 
     health care decision-makers so that plaintiffs are not forced 
     to attempt to hold physicians liable for the treatment rules 
     and coverage determinations of employer-sponsored health 
     insurers.

     SEC. 3. ERISA PREEMPTION NOT TO APPLY TO CERTAIN ACTIONS 
                   INVOLVING HEALTH INSURANCE POLICYHOLDERS.

       (a) In General.--Section 514(b) of the Employee Retirement 
     Income Savings Act of 1974 (29 U.S.C. 1144(b)) is amended by 
     redesignating paragraph (9) as paragraph (10) and by 
     inserting after paragraph (8) the following paragraph:
       ``(9) Subsection (a) shall not be construed to preempt any 
     cause of action under State law to recover damages for 
     medical malpractice, personal injury, or wrongful death 
     against any entity that arises out of the provision by such 
     entity of insurance or administrative services to or for an 
     employee welfare benefit plan maintained to provide health 
     care benefits.''
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to causes of action arising on or after the date 
     of enactment of this Act.
                                 ______
                                 
      By Mr. DURBIN:
  S. 1137. A bill to amend section 258 of the Communications Act of 
1934 to establish additional protections against the unauthorized 
change of subscribers from one telecommunications carrier to another; 
to the Committee on Commerce, Science, and Transportation.


                      the slamming protection act

  Mr. DURBIN. Mr. President, I rise today to introduce the Slamming 
Protection Act of 1997. This measure enables long-distance telephone 
consumers and the States to strike back against ``slamming,'' the 
practice of changing a telephone customer's long-distance carrier 
without the customer's knowledge or consent.
  Slamming is the Federal Communications Commission's largest source of 
consumer complaints. In 1995, more than a third of the consumer 
complaints filed with the FCC's Common Carrier Bureau involved 
slamming. Last year 16,000 long-distance telephone consumers filed 
slamming complaints with the FCC. Since 1994, the number of slamming 
complaints has tripled. Yet, this is only the tip of the iceberg. 
Moreover, the Los Angeles Times reports that more than 1 million

[[Page S8603]]

American telephone consumers have been slammed in the last 2 years.
  Slamming is not merely an inconvenience or a nuisance. It is an act 
of fraud that costs long-distance telephone consumers millions of 
dollars a year.
  Let me give you an example. This January, Ms. Geryl Kramer, a small 
business owner in Chicago, was surprised to open her phone bill and 
find it noticeably more expensive than usual. After numerous phone 
calls she discovered that without her knowledge or consent, her long-
distance carrier had been changed--she had been slammed. Her long-
distance telephone service became a ping-pong ball bounced among 
various long-distance carriers for their profit and at her expense.
  Ms. Kramer spent countless hours attempting to resolve the situation, 
going back and forth between four different long-distance carriers who 
were involved in the slamming which had quadrupled her small business' 
long-distance bills. Although she was slammed in November last year, 
she still has not been able to track down how she was slammed or who 
was responsible.
  Ms. Kramer was understandably upset and frustrated. Beyond being 
exasperated by the audacity of the slammer, Ms. Kramer was left feeling 
powerless by her inability to hold the slammer accountable for its 
fraudulent actions. Having explored every other avenue, Ms. Kramer came 
to me seeking a solution to the problem of slamming. I believe the 
Slamming Protection Act is that solution.
  The current protections against slamming are simply inadequate. 
Although long-distance telephone consumers can currently bring an 
action in Federal court or file a complaint with the FCC, these 
measures have been largely ineffective in reducing slamming. The 
economic damages suffered by consumers are often relatively 
insignificant--it would cost more to sue for recovery than the consumer 
would ever recover in court.
  Moreover, if a long-distance telephone consumer files an FCC slamming 
complaint, the only redress is to be excused from paying the additional 
cost of the long-distance bill, if the bill is more expensive than it 
would have been under the original long-distance carrier. Thus, the 
consumer who is slammed must take the time and effort to file the 
complaint and participate in the investigation. Yet, when all is said 
and done, all the consumer can get after being defrauded is to be 
excused from paying the additional costs. Not surprisingly, slammers 
are undeterred by this system. And, it turns out, they have little to 
fear from broader FCC investigations.
  The FCC does have administrative enforcement procedures against 
slamming. Although the FCC's efforts are a step in the right direction, 
they are too slow moving and seldom result in more than a slap on the 
wrist. Last year the FCC processed roughly 13,000 slamming complaints. 
This is only a fraction of the number of slamming incidents. And only 
rarely do the FCC's efforts result in changes in industry practice.
  Since the FCC began investigating slamming in 1994, it has only moved 
against seven long-distance carriers and has only entered into consent 
decrees with eight long-distance carriers accused of slamming. 
Moreover, any fine or settlement agreement achieved by the FCC is paid 
to the U.S. Treasury, not the long-distance telephone consumer who was 
slammed--not to the party who was harmed.
  Mr. President, we need tougher laws on the books. Long-distance 
telephone consumers should be able to stand up for themselves and fight 
back against slammers to let them know that their actions will not pay.
  The Slamming Protection Act will help stamp out slamming by providing 
individual long-distance telephone consumers with the right and the 
power to strike back against individual slammers and by establishing 
penalties that will make slamming too risky and too expensive for the 
practice to remain profitable.
  This measure will help end slamming in three ways:
  First, it creates a right of action for long-distance telephone 
consumers to sue the slammer in State or Federal court. The Slamming 
Protection Act establishes minimum statutory damages of $2,000--or 
$6,000 if the slamming was done willfully and knowingly. These 
substantial penalties are designed to have a significant deterrent 
effect and to be large enough to encourage consumers to bring such 
actions;
  Second, the Slamming Protection Act provides State attorneys general 
with the right to bring suit against slammers on behalf of the citizens 
of their States. Currently, in some jurisdictions the States are 
virtually helpless in their fight against interstate slammers. There is 
no existing Federal right of action to allow the States to hold 
slammers accountable. And a number of courts have held that similar 
State laws are preempted by Federal law. Some States, therefore, are 
left without recourse to prevent their citizens from being injured by 
slammers; and
  Finally, the Slamming Protection Act creates criminal fines and jail 
time for repeat and willful slammers. Slamming takes choices away from 
consumers without their knowledge and distorts the long distance 
competitive market by rewarding companies that engage in misleading 
marketing practices. The Slamming Protection Act's criminal penalties 
will guarantee that slammers can no longer act with impunity.
  Thank you Mr. President for the opportunity to introduce this 
important initiative. I hope my colleagues will join with me and 
support The Slamming Protection Act in order to help long-distance 
telephone consumers and the States to fight back against deceptive and 
fraudulent slammers.
  Mr. President, I ask unanimous consent that a copy of the legislation 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1137

       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 ``Slamming Protection Act''.

     SEC. 2. ADDITIONAL PROTECTIONS AGAINST UNAUTHORIZED CHANGES 
                   OF PROVIDERS OF TELEPHONE SERVICE.

       Section 258 of the Communications Act of 1984 (47 U.S.C. 
     258) is amended by adding at the end the following:
       ``(c) Criminal Penalties.--
       ``(1) Persons.--Any person who executes a change in a 
     provider of telephone exchange service or telephone toll 
     service in willful violation of the procedures prescribed 
     under subsection (a)--
       ``(A) shall be fined not more than $1,000, imprisoned not 
     more than 30 days, or both, for the first offense; and
       ``(B) shall be fined not more than $10,000, imprisoned not 
     more than 9 months, or both, for any subsequent offense.
       ``(2) Telecommunications carriers.--Any telecommunications 
     carrier who executes a change in a provider of telephone 
     exchange service or telephone toll service in willful 
     violation of the procedures prescribed under subsection (a) 
     shall be fined not more than $50,000 for the first offense 
     and shall be fined not more than $100,000 for any subsequent 
     offense.
       ``(d) Private Right of Action.--
       ``(1) In general.--A subscriber whose provider of telephone 
     exchange service or telephone toll service is changed in 
     violation of the procedures prescribed under subsection (a) 
     may, within one year after discovery of the change, bring in 
     an appropriate court an action--
       ``(A) for an order to revoke the change;
       ``(B) for an award of damages in an amount equal to the 
     greater of--
       ``(i) the actual monetary loss resulting from the change; 
     or
       ``(ii) an amount not to exceed $2,000; or
       ``(C) for relief under both subparagraphs (A) and (B).
       ``(2) Increased award.--If the court finds that the 
     defendant executed the change in willful and knowing 
     violation of the procedures prescribed under subsection (a), 
     the court may, in its discretion, increase the amount of the 
     award under paragraph (1) to an amount equal to not more than 
     three times the maximum amount awardable under subparagraph 
     (B) of that paragraph.
       ``(e) Actions by States.--
       ``(1) Authority of states.--Whenever the attorney general 
     of a State, or an official or agency designated by a State, 
     has reason to believe that any person has engaged or is 
     engaging in a pattern or practice of unauthorized changes in 
     providers of telephone exchange service or telephone toll 
     service of residents in such State in violation of the 
     procedures prescribed under subsection (a), the State may 
     bring a civil action on behalf of its residents to enjoin 
     such practices, to recover damages equal to the actual 
     monetary loss suffered by such residents, or both. If the 
     court finds the defendant executed such changes in willful 
     and knowing violation of such procedures, the court may, in 
     its discretion, increase the amount of the award

[[Page S8604]]

     to an amount equal to not more than three times the amount 
     awardable under the preceding sentence.
       ``(2) Exclusive jurisdiction of federal courts.--The 
     district courts of the United States shall have exclusive 
     jurisdiction over all civil actions brought under this 
     subsection. Upon proper application, such courts shall also 
     have jurisdiction to award declaratory relief, or orders 
     affording like relief, commanding the defendant to comply 
     with the procedures prescribed under subsection (a). Upon a 
     proper showing, a permanent or temporary injunction or 
     restraining order shall be granted without bond.
       ``(3) Notice to commission.--A State shall serve prior 
     written notice of any civil action under this subsection upon 
     the Commission with a copy of its complaint, except in any 
     case where prior notice is not feasible, in which case the 
     State shall serve such notice immediately after instituting 
     such action.
       ``(4) Rights of commission.--Upon receiving notice of an 
     action under this subsection, the Commission shall have the 
     right--
       ``(A) to intervene in the action;
       ``(B) upon so intervening, to be heard on all such matters 
     arising therein; and
       ``(C) to file petitions for appeal.
       ``(5) Venue; service of process.--Any civil action under 
     this subsection may be brought in the district wherein the 
     defendant is found or is an inhabitant or transacts business 
     or wherein the violation occurred or is occurring, and 
     process in such cases may be served in any district in which 
     the defendant is an inhabitant or where the defendant may be 
     found.
       ``(6) Effect on state court proceedings.--Nothing contained 
     in this subsection shall be construed to prohibit an 
     authorized State official from proceeding in State court on 
     the basis of an alleged violation of any general civil or 
     criminal statute of such State.
       ``(f) Class Actions.--For any class action brought with 
     respect to the violation of the procedures prescribed under 
     subsection (a), the total damages awarded may not exceed an 
     amount equal to three times the total actual damages suffered 
     by the members of the class, irrespective of the minimum 
     damages provided for in subsection (d).
       ``(g) No Preemption of State Law.--Nothing in this section 
     shall preempt the availability of relief under State law for 
     unauthorized changes of providers of intrastate telephone 
     exchange service or telephone toll service.''.
                                 ______
                                 
      By Mr. HELMS (for himself, Mr. Brownback, Mr. Burns, Mr. Hagel, 
        and Mr. Roberts):
  S. 1138. A bill to reform the coastwise, intercoastal, and 
noncontiguous trade shipping laws, and for other purposes, to the 
Committee on Commerce, Science, and Transportation.


                    the freedom to ship act of 1997

  Mr. HELMS. Mr. President, since 1920 there has been a Federal law on 
the books that, while perhaps well intentioned, nonetheless forbids a 
vast segment of the farming community in North Carolina and other 
States from obtaining reasonably-priced grain from the Midwest. It has 
long prevented Midwestern grain producers from delivering much needed 
grain to grain deficit states which experience difficulty in feeding 
their livestock.
  That is why I am today introducing S. 1138 which I have titled ``The 
Freedom To Ship Act of 1997.'' I am pleased to have Senator Brownback, 
Senator Burns, Senator Hagel, and Senator Roberts as original 
cosponsors.
  Mr. President, the Jones Act, as it is commonly called, prevents a 
large sector of the Agricultural community in North Carolina from 
obtaining grain from the Midwest at reasonable prices. Furthermore, it 
is preventing grain suppliers in the Midwest from supplying grain 
deficit states, such as North Carolina, with grain needed for their 
livestock.
  Under the present system, a few waterborne carriers have a monopoly 
on shipping, and my folks in North Carolina tell me that those shippers 
have no certified Jones Act ships to meet their demands.
  My poultry and pork farmers tell me they can't get enough grain for 
their farms to feed their animals. My State cannot, and will never be 
able, to produce enough grain for the poultry and pork producers in 
North Carolina; so, as a result, they must, I repeat, they must have 
grain shipped in from the Midwest. They tell me the railroads can't 
guarantee enough rail cars to get the supplies of grain needed from the 
Midwest. And the costs of these shipments that are available are very 
high. The increase in transportation costs coupled with the price of 
grain leads to higher overhead for my farmers. This shortage of grains 
and shortage of trains means higher costs and higher prices which 
threatens the jobs of many farmers.
  According to the 1996 North Carolina Department of Agriculture 
report, North Carolina was first in the nation in turkey production 
with 59.5 million heads; our State was number two in hog production, 
exceeded by Iowa, at 9.8 million heads; and in commercial broilers 
North Carolina was fourth with 681 million heads, exceeded by Arkansas, 
Georgia, and Alabama.
  While we slightly dropped off in turkey production in 1996, we 
increased hog production by 1.5 million head and increased commercial 
broiler production by 37 million heads over the last statistical 
reporting period. That is a tremendous number of poultry and livestock 
to feed, and that's just the tip of the iceberg.

  Dependence on one mode of transportation, the railroads, is not good. 
In times of severe weather, such as heavy snows in Winter and flooding 
from heavy rains, many times railroads can't get through mountain 
passes or flooded areas of the country. We've seen quite a few severe 
winters and floods in the past few years. Even a delay of one day can 
be critical to farmers.
  Mr. President, the problem is that the Jones Act restricts shipping 
between ports in the United States. It requires that merchandise being 
transported by water between U.S. points be shipped on U.S.-built, 
U.S.-flagged, U.S.-manned, and U.S.-citizen owned vessels that are 
documented by the Coast Guard for such carriage. The problem is that 
there are not enough Jones Act certified vessels to transport grain to 
North Carolina farmers. As a matter of fact, my farmers are now faced 
with being forced to go to foreign sources of feed grain.
  According to a report in the September 12, 1995, Journal of Commerce, 
Murphy Family Farms brought in a cargo of 1 million bushels of Canadian 
wheat to the port of Wilmington, North Carolina on Canada Steamship 
Lines.
  Mr. President, the Jones Act is not fair to grain producers in the 
Midwest. It penalizes them for being American farmers.
  Those that would protest this legislation would say that it would 
destroy American shipping. If we maintain the status quo, my farmers 
will have no choice but to buy foreign grain from countries like Canada 
and Argentina and it will be transported on non U.S. flagged vessels.
  Mr. President, this legislation requires any non-U.S. flag shipping 
company that wishes to do regularly scheduled business in the coastwise 
trades to: set up a United States Corporation, use U.S. Labor, comply 
with all state and federal law and--for those of us who are worried 
about the budget deficit--pay state and Federal Taxes. More 
importantly, it would create more long shore jobs. The more ships you 
have in the trade the more you have to load and unload, hence you need 
more workers.
  According to a report, issued in December of 1995, by the United 
States International Trade Commission, ``The economy wide effect of 
removing the Jones Act is a U.S. economic welfare gain of approximately 
$2.8 billion. This figure can also be interpreted as the annual 
reduction in real national income imposed by the Jones Act. A primary 
reason for the large gain in welfare is a decline of approximately 26 
percent in the price of shipping services formerly restricted by the 
Jones Act.''
  It is strange circumstance where we are the breadbasket of the world 
and there is a lid on the basket of the domestic market placed by the 
Jones Act.
  Mr. President, the Jones Act placing restrictions on shipments of a 
whole host of other non-agricultural goods and commodities, such as 
coal, fuel oil, steel, kaolin clay, in the United States. Our 
legislation would help lower shipping costs for many other industries 
as well.
  So I urge my colleagues to join us in correcting this inequity to 
allow American grain to be shipped unhindered to those grain deficit 
states that are in need of it; and all other non-agricultural 
commodities and goods to be shipped by water at reasonable costs where 
they are needed.
  I urge my colleagues to support this legislation and 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:

[[Page S8605]]

                                S. 1138

       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 ``Freedom to Ship Act of 
     1997''.

     SEC. 2. MISCELLANEOUS AMENDMENTS TO DEFINITIONS IN TITLE 46, 
                   UNITED STATES CODE.

       Section 2101 of title 46, United States Code, is amended--
       (1) in each of paragraphs (1) through (45), by striking the 
     period at the end and inserting a semicolon;
       (2) in paragraph (46), by striking the period at the end 
     and inserting ``; and'';
       (3) by striking paragraph (3a) and inserting the following:
       ``(3a) `citizen of the United States' means--
       ``(A)(i) a national of the United States, as defined in 
     section 101(a)(22) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)(22));
       ``(ii) a corporation established under the laws of the 
     United States or under the laws of a State, territory, 
     district, or possession of the United States, that has--
       ``(I) a president or other chief executive officer and 
     chairman of the board of directors of that corporation who 
     are citizens of the United States; and
       ``(II) a board of directors, on which two-thirds of the 
     number of directors necessary to constitute a quorum are 
     citizens of the United States;
       ``(iii) a partnership existing under the laws of a State, 
     territory, district, or possession of the United States that 
     has at least two-thirds of the general partners who are 
     citizens of the United States;
       ``(iv) a trust that has at least two-thirds of the trustees 
     who are citizens of the United States; or
       ``(v) an association, joint venture, limited liability 
     company or partnership, or other entity that has at least 
     two-thirds of the members who are citizens of the United 
     States; but
       ``(B) such term does not include--
       ``(i) with respect to a person or entity under clause (ii), 
     (iii), or (v) of subparagraph (A), any parent corporation, 
     partnership, or other person (other than an individual) or 
     entity that is a second-tier owner (as that term is defined 
     by the Secretary) of the person or entity involved; or
       ``(ii) with respect to a trust under clause (iv), any 
     beneficiary of the trust.'';
       (4) by inserting after paragraph (4) the following new 
     paragraph:
       ``(4a) `coastwise trade'--
       ``(A) subject to subparagraph (B), means the transportation 
     by water of merchandise or passengers, the towing of a vessel 
     by a towing vessel, or dredging operations embraced within 
     the coastwise laws of the United States--
       ``(i) between points in the United States (including any 
     district, territory, or possession of the United States);
       ``(ii) on the Great Lakes (including any tributary or 
     connecting waters of the Great Lakes and the Saint Lawrence 
     Seaway);
       ``(iii) on the subjacent waters of the Outer Continental 
     Shelf subject to the Outer Continental Shelf Lands Act (43 
     U.S.C. 1331 et seq.); and
       ``(iv) in the noncontiguous trade; and
       ``(B) does not include the activities specified in 
     subparagraph (A) on the navigable waters included in the 
     inland waterways trade except for activities specified in 
     subparagraph (A) that occur on mixed waters.'';
       (5) by inserting after paragraph (11c) the following new 
     paragraph:
       ``(11d) `foreign qualified vessel' means a vessel--
       ``(A) registered in a foreign country; and
       ``(B) the owner, operator, or charterer of which is a 
     citizen of the United States or--
       ``(i) has qualified to engage in business in a State and 
     has an agent in that State upon whom service of process may 
     be made;
       ``(ii) is subject to the laws of the United States in the 
     same manner as any foreign person doing business in the 
     United States; and
       ``(iii) either--

       ``(I) employs vessels in the coastwise trade regularly or 
     from time to time as part of a regularly scheduled freight 
     service in the foreign ocean (including the Great Lakes) 
     trades of the United States; or
       ``(II) offers passage or cruises on passenger vessels the 
     owner, operator, or charterer employs in the coastwise trade 
     or in the coastwise trade as part of those cruises offered in 
     the foreign ocean (including the Great Lakes) trades of the 
     United States.'';

       (6) by redesignating paragraph (14a) as paragraph (14b);
       (7) by inserting after paragraph (14) the following new 
     paragraph:
       ``(14a) `inland waterways trade'--
       ``(A) means--
       ``(i) the transportation of merchandise or passengers on 
     the navigable rivers, canals, lakes other than the Great 
     Lakes, or other waterways inside the Boundary Line;
       ``(ii) the towing of barges by towing vessels in the waters 
     specified in clause (i); or
       ``(iii) engaging in dredging operations in the waters 
     specified in clause (i); and
       ``(B) includes any activity specified in subparagraph (A) 
     that is conducted in mixed waters.'';
       (8) by redesignating paragraph (15a) as paragraph (15b);
       (9) by inserting after paragraph (15) the following:
       ``(15a) `mixed waters' means--
       ``(A) the harbors and ports on the coasts and Great Lakes 
     of the United States; and
       ``(B) the rivers, canals, and other waterways tributary to 
     the Great Lakes or to the coastal harbors and coasts of the 
     United States inside the Boundary Line,
     that the Secretary of Transportation determines to be 
     navigable by oceangoing vessels.'';
       (10) by redesignating paragraph (17a) as paragraph (17b);
       (11) by inserting after paragraph (17) the following:
       ``(17a) `noncontiguous trade' means transportation by water 
     of merchandise or passengers, or towing by towing vessels--
       ``(A) between--
       ``(i) a point in the 48 continental States and the District 
     of Columbia; and
       ``(ii) a point in Hawaii, Alaska, Puerto Rico, Guam, the 
     Virgin Islands, American Samoa, the Northern Mariana Islands, 
     or any other noncontiguous territory or possession of the 
     United States, as embraced within the coastwise laws of the 
     United States; or
       ``(B) between 2 points described in subparagraph 
     (A)(ii).'';
       (12) in paragraph (21)(A)--
       (A) in clause (ii), by striking ``or'' after the semicolon;
       (B) in clause (iii), by inserting ``or'' after the 
     semicolon; and
       (C) by adding at the end the following new clause:
       ``(iv) an individual who--

       ``(I) is a member of the family or a guest of the owner or 
     charterer; and
       ``(II) is not a passenger for hire;'';

       (13) by striking paragraph (40) and inserting the 
     following:
       ``(40) `towing vessel' means any commercial vessel engaged 
     in, or that a person intends to use to engage in, the service 
     of--
       ``(A) towing, pulling, pushing, or hauling alongside (or 
     any combination thereof); or
       ``(B) assisting in towing, pulling, pushing, or hauling 
     alongside;''; and
       (14) by inserting after paragraph (40) the following new 
     paragraphs:
       ``(40a) `towing of a vessel by a towing vessel between 
     points' means attaching a towing vessel to a towed vessel 
     (including any barge) at 1 point and releasing the towed 
     vessel from the towing vessel at another point, regardless of 
     the origin or ultimate destination of either the towed vessel 
     or the towing vessel; and
       ``(40b) `transportation of merchandise or passengers by 
     water between points' means, without regard to the origin or 
     ultimate destination of the merchandise or passengers 
     involved--
       ``(A) in the case of merchandise, loading merchandise at 1 
     point and permanently unloading the merchandise at another 
     point; or
       ``(B) in the case of passengers, embarking passengers at 1 
     point and permanently disembarking the passengers at another 
     point.''.

     SEC. 3. DOCUMENTATION.

       (a) Definitions.--Section 12101(b)(2) of title 46, United 
     States Code, is amended--
       (1) by striking paragraph (2) and inserting the following:
       ``(2) `license', `enrollment and license', `license for the 
     coastwise (or coasting) trade', `enrollment and license for 
     the coastwise (or coasting) trade', and `enrollment and 
     license to engage in the foreign and coastwise (or coasting) 
     trade on the northern, northeastern, and northwestern 
     frontiers, otherwise than by sea' mean a coastwise 
     endorsement provided in section 12106.'';
       (2) by striking paragraph (3); and
       (3) by redesignating paragraph (4) as paragraph (3).
       (b) Vessels Eligible for Documentation.--Section 12102(a) 
     of title 46, United States Code, is amended--
       (1) by striking all that precedes paragraph (5) and 
     inserting the following:
       ``(a) A vessel of at least 5 net tons that is not 
     registered under the laws of a foreign country or that is not 
     titled in a State is eligible for documentation if--
       ``(1)(A) the vessel is owned by an individual who is a 
     citizen of the United States, or a corporation, association, 
     trust, joint venture, partnership, limited liability company, 
     or other entity that is a citizen of the United States; and
       ``(B) the owner of the vessel is capable of holding title 
     to a vessel under the laws of the United States or under the 
     laws of a State;''; and
       (2) by redesignating paragraphs (5) and (6) as paragraphs 
     (2) and (3), respectively.
       (c) Coastwise Endorsements.--Section 12106 of title 46, 
     United States Code, is amended to read as follows:

     ``Sec. 12106. Coastwise endorsements and certificates

       ``(a) In General.--A certificate of documentation may be 
     endorsed with a coastwise endorsement for a vessel that is 
     eligible for documentation.
       ``(b) Eligibility.--
       ``(1) In general.--Any of the following vessels may be 
     issued a certificate to engage in the coastwise trade if the 
     Secretary of Transportation makes a finding, pursuant to 
     information obtained and furnished by the Secretary of State, 
     that the government of the nation of registry of such vessel 
     extends reciprocal privileges to vessels of the United States 
     to engage in the transportation of merchandise or passengers 
     (or both) in its coastwise trade:
       ``(A) A foreign qualified vessel (as defined in section 
     2101(11d)).

[[Page S8606]]

       ``(B) A vessel of foreign registry--
       ``(i) if the vessel is subject to a demise or bareboat 
     charter, for the duration of that charter, to a person or 
     entity that would be eligible to document that vessel if that 
     person or entity were the owner of the vessel; or
       ``(ii) that engages irregularly in the coastwise trade of 
     the United States.
       ``(2) Vessel engaging irregularly in the coastwise trade.--
     For purposes of this subsection, a vessel engages irregularly 
     in the coastwise trade of the United States if that vessel--
       ``(A) during any 60-day period does not make, in the 
     aggregate, more than 4 calls to United States ports; and
       ``(B) during any calendar year does not make, in the 
     aggregate, more than 6 calls to United States ports.
       ``(c) Employment in the Coastwise Trade.--Subject to the 
     applicable laws of the United States regulating the coastwise 
     trade and trade with Canada, only a vessel with a certificate 
     of documentation endorsed with a coastwise endorsement or 
     with a certificate issued under subsection (b) may be 
     employed in the coastwise trade.''.
       (d) Inland Waterways Endorsements.--Section 12107 of title 
     46, United States Code, is amended to read as follows:

     ``Sec. 12107. Inland waterways endorsements

       ``A certificate of documentation may be endorsed with an 
     inland waterways endorsement for a vessel that--
       ``(1) is eligible for documentation; and
       ``(2)(A) was built in the United States; or
       ``(B) was not built in the United States; but was--
       ``(i) captured in war by citizens of the United States and 
     lawfully condemned as prize;
       ``(ii) adjudged to be forfeited for a breach of the laws of 
     the United States; or
       ``(iii) is qualified for documentation under section 4136 
     of the Revised Statutes (46 App. U.S.C. 14).''.
       (e) Limitations on Operations Authorized by Certificates.--
     Section 12110(b) of title 46, United States Code, is 
     amended--
       (1) by striking ``coastwise trade'' and inserting 
     ``coastwise trade or inland waterways trade''; and
       (2) by striking ``that trade'' and inserting ``those 
     trades''.

     SEC. 4. TRANSPORTATION OF MERCHANDISE IN THE COASTWISE AND 
                   INLAND WATERWAYS TRADES.

       (a) In General.--Section 27 of the Merchant Marine Act, 
     1920 (46 U.S.C. App. 883) is amended to read as follows:

     ``SEC. 27. PROHIBITION.

       ``No merchandise, including merchandise owned by the United 
     States Government, a State (as defined in section 2101 of 
     title 46, United States Code), or a political subdivision of 
     a State, and including material without value, shall be 
     transported by water, on penalty of forfeiture of the 
     merchandise (or a monetary amount not to exceed the value of 
     the merchandise, as determined by the Secretary of the 
     Treasury, or the actual cost of the transportation, whichever 
     is greater, to be recovered from any cosigner, seller, owner, 
     importer, consignee, agent, or other person that transports 
     or causes the merchandise to be transported by water)--
       ``(1) in the coastwise trade, in any vessel other than--
       ``(A) a vessel documented with a coastwise endorsement 
     under section 12106(a) of title 46, United States Code; or
       ``(B) a vessel that has been issued coastwise certification 
     under section 12106(b) of title 46, United States Code, that 
     is in effect for engaging in the transportation of 
     merchandise; or
       ``(2) in the inland waterways trade in any vessel other 
     than a vessel documented with an inland waterways endorsement 
     under section 12107 of title 46, United States Code.''.
       (b) Repeal.--Section 27A of the Merchant Marine Act, 1920 
     (46 App. U.S.C. 883-1) is repealed.

     SEC. 5. TRANSPORTATION OF PASSENGERS.

       (a) In General.--Section 8 of the Act of June 19, 1886 (24 
     Stat. 81, chapter 421; 46 U.S.C. App. 289) is amended to read 
     as follows:

     ``SEC. 8. PROHIBITION.

       ``No passengers shall be transported by water, on penalty 
     of $200 for each passenger so transported or the actual cost 
     of the transportation, whichever is greater, to be recovered 
     from the vessel so transporting the passenger--
       ``(1) in the coastwise trade, in any vessel other than--
       ``(A) a vessel documented with a coastwise endorsement 
     under section 12106 of title 46, United States Code; or
       ``(B) a vessel that has been issued a coastwise 
     certification under section 12106(b) of title 46, United 
     States Code, that is in effect for engaging in the 
     transportation of merchandise; and
       ``(2) in the inland waterways trade, in any vessel other 
     than a vessel documented with an inland waterways endorsement 
     under section 12107 of title 46, United States Code.''.
       (b) Repeals.--The following provisions are repealed:
       (1) The Act of April 26, 1938 (52 Stat. 223, chapter 174; 
     46 U.S.C. App. 289a).
       (2) Section 12(22) of the Maritime Act of 1981 (46 U.S.C. 
     App. 289b).
       (3) Public Law 98-563 (46 U.S.C. App. 289c).

     SEC. 6. TOWING AND SALVAGING OPERATIONS.

       Section 4370(a) of the Revised Statutes (46 U.S.C. App. 
     316(a)) is amended to read as follows:
       ``(a)(1) No vessel (including any barge), other than a 
     vessel in distress, may be towed--
       ``(A) in the coastwise trade by any vessel other than--
       ``(i) a vessel documented with a coastwise endorsement 
     under section 12106(a) of title 46, United States Code; or
       ``(ii) a vessel registered in a foreign country, if the 
     Secretary of the Treasury finds, pursuant to information 
     furnished by the Secretary of State, that the government of 
     that foreign country and the government of the country of 
     which each ultimate owner of the towing vessel is a citizen 
     extend reciprocal privileges to vessels of the United States 
     to tow vessels (including barges) in the coastal waters of 
     that country; or
       ``(B) in the inland waterways trade by any vessel other 
     than a vessel documented with an inland waterways endorsement 
     under section 12107 of title 46, United States Code.
       ``(2)(A) The owner and master of any vessel that tows 
     another vessel (including a barge) in violation of this 
     section shall each be liable to the United States Government 
     for a civil penalty in an amount not less than $250 and not 
     greater than $1,000. The penalty shall be enforceable through 
     the district court of the United States for any district in 
     which the offending vessel is found.
       ``(B) A penalty specified in subparagraph (A) shall 
     constitute a lien upon the offending vessel, and that vessel 
     shall not be granted clearance until that penalty is paid.
       ``(C) In addition to the penalty specified in subparagraph 
     (A), the offending vessel shall be liable to the United 
     States Government for a civil penalty in an amount equal to 
     $50 per ton of the measurement of the vessel towed in 
     violation of this section, which shall be recoverable in a 
     libel or other enforcement action conducted through the 
     district court for the United States for the district in 
     which the offending vessel is found.''.

     SEC. 7. CITIZENSHIP AND TRANSFER PROVISIONS.

       (a) Citizenship of Corporations, Partnerships, and 
     Associations.--Section 2 of the Shipping Act, 1916 (46 U.S.C. 
     App. 802) is amended--
       (1) in subsection (a)--
       (A) by inserting a period after ``possession thereof''; and
       (B) by striking all that follows the period inserted in 
     subparagraph (A) through the end of the subsection; and
       (2) by striking subsection (c).
       (b) Approval of Transfer of Registry or Operation Under 
     Authority of a Foreign Country or for Scrapping in a Foreign 
     Country; Penalties.--Section 9 of the Shipping Act, 1916 (46 
     U.S.C. App. 808) is amended--
       (1) by striking subsection (c) and inserting the following:
       ``(c) Except as provided in section 611 of the Merchant 
     Marine Act, 1936 (46 U.S.C. App. 1181) and section 
     31322(a)(1)(D) of title 46, United States Code, a person may 
     not, without the approval of the Secretary of 
     Transportation--
       ``(1) place under foreign registry--
       ``(A) a documented vessel; or
       ``(B) a vessel with respect to which the last documentation 
     was made under the laws of the United States;
       ``(2) operate a vessel referred to in paragraph (1) under 
     the authority of a foreign government; or
       ``(3) scrap or transfer for scrapping a vessel referred to 
     in paragraph (1) in a foreign country.''; and
       (2) by striking subsection (d) and inserting the following:
       ``(d)(1) A person that places a documented vessel under 
     foreign registry, operates that vessel under the authority of 
     a foreign country, or scraps or transfers for scrapping that 
     vessel in a foreign country--
       ``(A) in violation of this section and knowing that that 
     placement, operation, scrapping, or transfer for scrapping is 
     a violation of this section shall, upon conviction, be fined 
     under title 18, United States Code, imprisoned for not more 
     than 5 years, or both; or
       ``(B) otherwise in violation of this section shall be 
     liable to the United States Government for a civil penalty of 
     not more than $10,000 for each violation.
       ``(2) A documented vessel may be seized by, and forfeited 
     to, the United States Government if that vessel is placed 
     under foreign registry, operated under the authority of a 
     foreign country, or scrapped or transferred for scrapping in 
     a foreign country in violation of this section.''.

     SEC. 8. LABOR PROVISIONS.

       (a) Liability for Injury or Death of Master or Crew 
     Member.--Section 20(a) of the Act of March 4, 1915 (38 Stat. 
     1185, chapter 153; 46 U.S.C. App. 688(a)), is amended--
       (1) by inserting ``(1)'' after ``(a)'';
       (2) by adding at the end of paragraph (1) (as designated 
     under paragraph (1) of this subsection) the following new 
     sentence: ``In an action brought under this subsection 
     against a defendant employer that does not reside or maintain 
     an office in the United States (including any territory or 
     possession of the United States) and that engages in any 
     enterprise that makes use of 1 or more ports in the United 
     States (as defined in section 2101 of title 46, United States 
     Code), jurisdiction shall be under the district court most 
     proximate to the place of the occurrence of the personal 
     injury or death that is the subject of the action.''; and
       (3) by adding at the end the following new paragraph:
       ``(2)(A) The employer of a master or member of the crew of 
     a vessel--

[[Page S8607]]

       ``(i) may, at the election of the employer, participate in 
     an authorized compensation plan under the Longshore and 
     Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.); and
       ``(ii) if the employer makes an election under clause (i), 
     notwithstanding section 2(3)(G) of the Longshore and Harbor 
     Workers' Compensation Act (33 U.S.C. 902(3)(G)), shall be 
     subject to that Act.
       ``(B) If an employer makes an election, in accordance with 
     subparagraph (A), to participate in an authorized 
     compensation plan under the Longshore and Harbor Workers' 
     Compensation Act--
       ``(i) a master or crew member employed by that employer 
     shall be considered to be an employee for the purposes of 
     that Act; and
       ``(ii) the liability of that employer under that Act to the 
     master or crew member, or to any person otherwise entitled to 
     recover damages from the employer based on the injury, 
     disability, or death of the master or crew member, shall be 
     exclusive and in lieu of all other liability.''.
       (b) Minimum Requirements.--All vessels, whether documented 
     in the United States or not, operating in the coastwise trade 
     of the United States shall be subject to minimum 
     international labor standards for seafarers under 
     international agreements in force for the United States, as 
     determined by the Secretary of Transportation on the advice 
     of the Secretaries of Labor and Defense.

     SEC. 9. REGULATIONS REGARDING VESSELS.

       (a) Applicable Minimum Requirements.--Except as provided in 
     paragraph (2), the minimum requirements for vessels engaging 
     in the transportation of cargo or merchandise in the United 
     States coastwise trade shall be the recognized international 
     standards in force for the United States (as determined by 
     the Secretary of the department in which the Coast Guard is 
     operating, in consultation with any other official of the 
     Federal Government that the Secretary determines to be 
     appropriate).
       (b) Consistency in Application of Standards.--In any case 
     in which any minimum requirement for vessels referred to in 
     paragraph (1) is inconsistent with a minimum that is 
     applicable to vessels that are documented in a foreign 
     country and that are admitted to engage in the transportation 
     of cargo and merchandise in the United States coastwise 
     trade, the standard applicable to United States documented 
     vessels shall be deemed to be the standard applicable to 
     vessels that are documented in a foreign country.
       (c) Minimum Requirements for Vessels.--As used in this 
     subsection, the term ``minimum requirements for vessels'' 
     means, with respect to vessels (including United States 
     documented vessels and foreign documented vessels), all 
     safety, manning, inspection, construction, and equipment 
     requirements applicable to those vessels in United States 
     coastwise passenger trade, to the extent that those 
     requirements are consistent with applicable international law 
     and treaties to which the United States is a signatory.

     SEC. 10. ENVIRONMENT.

       All vessels, whether documented under the laws of the 
     United States or not, regularly engaging in the United States 
     coastwise trade shall comply with all applicable State and 
     Federal environmental statutes.

     SEC. 11. GENERAL REQUIREMENTS.

       Each person or entity that is not a citizen of the United 
     States, as defined in section 2101(3a) of title 46, United 
     States Code, that owns or operates vessels that regularly 
     engage in the United States domestic coastwise trade shall--
       (1) establish a corporation or other corporate entity and 
     qualify under the laws of that State where the corporation or 
     corporate entity is established to do business in the United 
     States;
       (2) name an officer of the corporation or corporate entity 
     upon whom process may be served;
       (3) abide by all applicable laws of the United States and 
     the State where the corporation or corporate entity is 
     established; and
       (4) post evidence of--
       (A) financial responsibility in amounts as considered 
     necessary by the Secretary of Transportation for the business 
     activities of the corporation or corporate entity; and
       (B) compliance with all applicable United States laws.

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