[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.
____________________