[Congressional Record Volume 143, Number 157 (Sunday, November 9, 1997)]
[Senate]
[Pages S12291-S12312]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. TORRICELLI:
S. 1493. A bill to amend section 485(f)(1)(F) of the Higher Education
Act of 1965 to provide for the disclosure of all criminal incidents
that manifest evidence of prejudice based on race, gender, religion,
sexual orientation, ethnicity, or disability; to the Committee on Labor
and Human Resources.
THE CAMPUS HATE CRIMES RIGHT TO KNOW ACT
Mr. TORRICELLI. Mr. President, every year, over 14 million students
and their parents agonize over where to attend college. They spend
months researching schools and visiting campuses in an effort to find
the perfect fit. At the top of the list of characteristics students and
their parents look for in a school is a safe learning environment.
Information is the key to choosing such an environment. Under current
law, students and their parents do not have access to all the
information necessary to make an informed choice.
Current law requires colleges and universities to report statistics
on crimes that occur on their campuses. However, colleges are only
required to report those hate crimes that result in murder, rape, or
aggravated assault. These three categories of crimes only represent 16
percent of the total number of hate crimes that occur on college
campuses every year. Vandalism, harassment, and simple assault comprise
the vast majority of hate crimes. Under current law, however, colleges
are not required to report these crimes.
Current law also does not require colleges and universities to report
hate crimes against women and the disabled. Thus, parents of daughters
or disabled students have no idea whether the college to which they
will send their children is safe.
Students and parents have the right to information about all hate
crimes committed on their prospective college campuses. My bill, the
Campus Hate Crimes Right to Know Act of 1997, will ensure that they
have access to that information.
The Campus Hate Crimes Right to Know Act does two very important
things: it expands college reporting requirements to include all hate
crimes, not just those that result in murder, rape and aggravated
assault; and, it includes gender and disability in the class protected
by the reporting requirement. Under current law, colleges need only
report hate crimes motivated by race, religion, sexual orientation, and
ethnicity. My bill will cover these four categories plus gender and
disability.
Our Nation's college campuses should be a refuge from crime,
particularly heinous attacks motivated by hatred and bigotry. The
disturbing truth, however, is that college campuses are often fertile
ground for bigotry. A recent study done by the Maryland Prejudice
Institute reported that 25 percent of minority college students
attending predominantly white colleges have been victimized by hate. In
1996, 90 incidents of anti-Semitic activity on college campuses were
reported to the Anti-Defamation League.
In September 1996, 60 Asian-American college students at a California
university received threats from another student via e-mail messages
threatening that all Asian-Americans would be hunted and killed. Under
current law, this offense would not appear on a campus crime report.
The Campus Hate Crimes Right to Know Act will provide students and
their parents with vital information so that they may better protect
themselves against such crimes. It will also encourage college
officials to raise awareness about these crimes and develop programs
and strategies to combat them.
The damage done by hate crimes goes beyond physical injury. Hate
crimes, whether they take the form of painting a swastika on someone's
dorm room door or gang beating a student believed to be gay, leave the
victim feeling fearful, vulnerable, and isolated.
Our children are our future. Their college years are among the most
exciting and formative of their lives. By introducing the Campus Hate
Crimes Right to Know Act of 1997, I hope to empower students and
parents with all of the information necessary to ensure that those
years are as safe as possible.
Mr. President, I ask unanimous consent at this time that the text of
the Campus Hate Crimes Right to Know Act of 1997, in its entirety, be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1493
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DISCLOSURE.
(a) Short Title.--This section may be cited as the ``Campus
Hate Crimes Right to Know Act of 1997''.
(b) Findings.--Congress finds that--
(1) the incidence of violence on college campuses based on
race, gender, religion, sexual orientation, ethnicity, or
disability poses a serious national problem;
(2) such violence disrupts the tranquility and safety of
campuses and is deeply divisive;
(3) hate crimes include crimes in which the perpetrator
intentionally selects a victim because of the actual or
perceived race, gender, religion, sexual orientation,
ethnicity, or disability of the victim;
(4) existing Federal reporting requirements only require
colleges and universities to report hate crimes that result
in murder, rape, or aggravated assault;
(5) existing reporting requirements are inadequate to deal
with the problem of hate
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crimes since the vast majority of hate crimes that occur on
college campuses do not result in murder, rape, or aggravated
assault;
(6) existing reporting requirements are inadequate because
the requirements do not require colleges and universities to
report hate crimes that target victims because of the
victims' gender or disability;
(7) omitting certain hate crimes from official campus crime
reports may result in a false sense of security among
students and apathy from campus officials;
(8) omitting certain hate crimes from official campus crime
reports deprives students and parents of the students of
vital information necessary to protect the students against
such crimes and to make informed decisions in choosing a
college or university;
(9) requiring postsecondary institutions to report all hate
crimes that occur on their campuses will provide students and
parents of the students with vital information so that the
students may better protect themselves against such crimes;
and
(10) requiring postsecondary institutions to report all
hate crimes that occur on their campuses will encourage
college officials to raise awareness about such crimes and
develop programs and strategies to combat such crimes.
(c) Amendment.--Section 485(f)(1)(F) of the Higher
Education Act of 1965 (20 U.S.C. 1092(f)(1)(F) is amended--
(1) by redesignation clauses (i) through (vi) as subclauses
(I) through (VI), respectively;
(2) by striking ``Statistics'' and inserting ``(i)
Statistics''; and
(3) by adding at the end the following:
``(ii) Statistics concerning the occurrence on campus,
during the most recent calendar year, and during the 2
preceding calendar years for which data are available, of all
criminal incidents that manifest evidence of prejudice based
on actual or perceived race, gender, religion, sexual
orientation, ethnicity, or disability that are reported to
campus security authorities or local police agencies. The
statistics shall be collected and reported according to
category of prejudice.''.
______
By Mr. LEVIN (by request):
S. 1495. A bill to amend section 7703 of title 5, United States Code,
to strengthen the ability of the Office of Personnel Management to
obtain judicial review to protect the merit system, and for other
purposes; to the Committee on Governmental Affairs.
THE MERIT SYSTEM PROTECTION ACT OF 1997
Mr. LEVIN. Mr. President, as the ranking member of the International
Security, Proliferation, and Federal Services Subcommittee of the
Governmental Affairs Committee, the subcommittee having jurisdiction
over civil service issues, I am introducing today, at the request of
the administration, legislation that would make two changes to the
Civil Service Reform Act of 1978. I introduce this legislation as a
courtesy to the administration without taking a position on its merits
so that it can be given proper consideration and so that concerned
parties can have the opportunity to comment on its potential effects.
The two changes to the Civil Service Reform Act relate to the
authority of the Office of Personnel Management [OPM] to seek judicial
review of Federal personnel management decisions issued by the Merit
Systems Protection Board [MSPB] and by arbitrators. The first change
would allow OPM 60 days, rather than the 30 days under current law, to
file a petition for review of an MSPB final decision with the U.S.
Court of Appeals for the Federal Circuit. The time available for
employees to appeal would not be affected by this change.
The second change would eliminate the discretion of the Federal
circuit to decide whether to hear OPM petitions for review. Currently,
OPM must file a petition with the Federal circuit and ask the court to
hear its appeal. If enacted, this change would require the Federal
circuit to hear every appeal from a final MSPB decision brought by OPM.
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. 1495
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. MERIT SYSTEM JUDICIAL REVIEW.
Section 7703 of title 5, United States Code, is amended--
(1) in subsection (b)(1) by striking ``provision of law,''
and inserting ``provision of law except subsection (d),'';
and
(2) in subsection (d)--
(A) in the first sentence, by inserting after ``filing''
the following: ``, within 60 days after the date the Director
received notice of the final order or decision of the
board,''; and
(B) by striking the last sentence.
SEC. 2. EFFECTIVE DATE.
The amendments made by section 1 shall take effect on the
date of enactment of this Act, and apply to any suit, action,
or other administrative or judicial proceeding pending on
such date or commenced on or after such date.
____
Section-by-Section Analysis
Section 1 would eliminate the discretion of the Federal
Circuit to decide whether to hear OPM petitions for review.
Currently, OPM must file a petition with the Federal Circuit
and ask the Court to hear its appeal. This section requires
the Federal Circuit to hear every appeal from a final MSPB
decision brought by OPM.
Section 2 would allow OPM 60 days, rather than the 30 days
under current law, to file a petition for review of an MSPB
final decision with the United States Court of Appeals for
the Federal Circuit. The time available for employees to
appeal would not be affected by this change.
______
By Mr. DASCHLE:
S. 1496. A bill to remove inequities between Congressional and
contract employees regarding access to health insurance; to the
Committee on Governmental Affairs.
THE CONGRESSIONAL CONTRACTOR HEALTH INSURANCE EQUITY ACT
Mr. DASCHLE. Mr. President, today I am reintroducing legislation to
provide employees of congressional contractors the same access to
health coverage as other congressional workers. This bill should have
passed last year, when I was thwarted in an effort to pass this measure
as an amendment to the Treasury-Postal Appropriations bill.
Instead, another 12 months have gone by in which workers in this very
building lack health insurance while you and I and our staffs have
access to a wide variety of subsidized health plans.
In fact, about 1,900 employees of companies that contract with the
Federal Government do not have employer-sponsored health insurance.
Efforts to privatize even more services previously performed by Federal
Government workers will exacerbate this situation.
Who are these contractors? They include House restaurant and mailroom
staff, electronics technicians, day care providers, accountants, data
processors, and construction and maintenance workers.
They are like you and me and others with whom we work side-by-side in
the Halls of the Congress, except they don't have the kind of health
security we take for granted.
As we devise new ways to extend health coverage to uninsured children
and workers between jobs, how can we in Congress allow individuals who
prepare our meals, repair our equipment, maintain our buildings, and
care for our children go without the same coverage that we provide our
staff?
In good conscience, we can't.
That's why I am introducing a bill that would require firms that
contract with Congress to offer insurance to their employees. This
requirement would apply to firms that employ 15 or more workers, and
that have Federal contracts worth over $75,000.
These contractors could buy a private health plan, or they could
select a plan from FEHBP. In either case, they would be required to
contribute to employees' premiums, just as the Federal Government
contributes to its workers' coverage.
This would ensure that everyone working full-time for Congress has
access to high quality, comprehensive coverage.
This kind of action is not without precedent.
Several years ago, concern about high turnover among Senate daycare
employees led the Senate to give these contract workers FEHBP coverage.
And Congress has a long history of taking action to guarantee fair
working conditions for contract workers. For 65 years, the Davis-Bacon
Act and other similar measures have guaranteed competitive wages to
Federal contract workers.
This bill complements those efforts.
But passing of this measure is not just a humane gesture. It is a
practical one.
Health costs for uninsured workers who become ill are simply shifted
onto others. They are shifted onto public programs like Medicaid; to
doctors and hospitals in the form of charity care; and into the
premiums paid by those with access to private coverage.
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Clearly, we're all paying, one way or another, for those who have no
insurance. And we're paying more than necessary. The uninsured often
forgo preventive care and early intervention only to end up in an
emergency room or hospital bed instead.
Congress should not tolerate this kind of inefficient cost shifting.
We should be setting an example for the rest of the Government and the
private sector.
Some may say this measure will reduce the cost savings from
privatization. I believe Congress should contract out services
performed more efficiently by the private sector. But reducing benefits
like health coverage to save money is penny wise and pound foolish. And
even if outsourcing is the wave of the future, Congress should set an
example by protecting rights and benefits of those caught in the
transition.
Cutting costs by cutting benefits may be easy, but it's not
efficient, and it's not responsible. Congress should not save money by
denying workers a basic benefit.
For many years now, Members of Congress have spoken on the floor
about the need to extend coverage to the uninsured. We all recognize
there can be no financial security without health security.
Let's show the country that what is good for Members of Congress and
their employees is also good for the contractors who serve us.
I hope my colleagues will join me in support of 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. 1496
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 ``Congressional Contractor
Health Insurance Equity Act''.
SEC. 2. DEFINITIONS.
For purposes of this Act:
(1) Contract.--The term ``contract'' means any contract for
items or services or any lease of Government property
(including any subcontract of such contract or any sublease
of such lease)--
(A) the consideration with respect to which is greater than
$75,000 per year,
``(B) with respect to a contract for services, requires at
least 1000 hours of services, and
(B) entered into between any entity or instrumentality of
the legislative branch of the Federal Government and any
individual or entity employing at least 15 full-time
employees.
(2) Employee.--The term ``employee'' has the meaning given
such term under section 3(6) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1002(6)).
(3) Entity of the legislative branch.--The term ``entity of
the legislative branch'' includes the following:
(A) The House of Representatives.
(B) The Senate.
(C) The Capitol Guide Service.
(D) The Capitol Police.
(E) The Congressional Budget Office.
(F) The Office of the Architect of the Capitol.
(G) The Office of the Attending Physician.
(H) The Office of Compliance.
(4) Group health plan.--The term ``group health plan''
means any plan or arrangement which provides, or pays the
cost of, health benefits that are actuarially equivalent to
the benefits provided under the standard option service
benefit plan offered under chapter 89 of title 5, United
States Code.
(5) Instrumentality of the legislative branch.--The term
``instrumentality of the legislative branch'' means the
following:
(A) The General Accounting Office.
(B) The Government Printing Office.
(C) The Library of Congress.
SEC. 3. GENERAL REQUIREMENTS CONCERNING CONTRACTS COVERED
UNDER THIS ACT.
(a) In General.--Any contract made or entered into by any
entity or instrumentality of the legislative branch of the
Federal Government shall contain provisions that require
that--
(1) all persons employed by the contractor in the
performance of the contract or at the location of the
leasehold be offered health insurance coverage under a group
health plan; and
(2) with respect to the premiums for such plan with respect
to each employee--
(A) the contractor pay a percentage equal to the average
Government contribution required under section 8906 of title
5, United States Code, for health insurance coverage provided
under chapter 89 of such title; and
(B) the employee pay the remainder of such premiums.
(b) Option To Purchase.--
(1) In general.--Notwithstanding section 8914 of title 5,
United States Code, a contractor to which subsection (a)
applies that does not offer health insurance coverage under a
group health plan to its employees on the date on which the
contract is to take effect, may obtain any health benefits
plan offered under chapter 89 of title 5, United States Code,
for all persons employed by the contractor in the performance
of the contract or at the location of the leasehold. Any
contractor that exercises the option to purchase such
coverage shall make any Government contributions required for
such coverage under section 8906 of title 5, United States
Code, with the employee paying the contribution required for
such coverage for Federal employees.
(2) Calculation of amount of premiums.--Subject to
paragraph (3)(B), the Director of the Office of Personnel
Management shall calculate the amount of premiums for health
benefits plans made available to contractor employees under
paragraph (1) separately from Federal employees and
annuitants enrolled in such plans.
(3) Review by office of personnel management.--
(A) Annual review.--The Director of the Office of Personnel
Management shall review at the end of each calendar year
whether the nonapplication of paragraph (2) would result in
higher adverse selection, risk segmentation in, or a
substantial increase in premiums for such health benefits
plans. Such review shall include a study by the Director of
the health care utilization and risks of contractor
employees. The Director shall submit a report to the
President, the Speaker of the House of Representatives, and
the President pro tempore of the Senate which shall contain
the results of such review.
(B) Nonapplication of paragraph (2).--Beginning in the
calendar year following a certification by the Director of
the Office of Personnel Management under subparagraph (A)
that the nonapplication of paragraph (2) will not result in
higher adverse selection, risk segmentation in, or a
substantial increase in premiums for such health benefits
plans, paragraph (2) shall not apply.
(4) Requirement of opm.--The Director of the Office of
Personnel Management shall take such actions as are
appropriate to enable a contractor described in paragraph (1)
to obtain the health insurance described in such paragraph.
(c) Administrative Functions.--
(1) In general.--The office within the entity or
instrumentality of the legislative branch of the Federal
Government which administers the health benefits plans for
Federal employees of such entity or instrumentality shall
perform such tasks with respect to plan coverage purchased
under subsection (b) by contractors with contracts with such
entity or instrumentality.
(2) Waiver authority.--Waiver of the requirements of this
Act may be made by such office upon application.
SEC. 4. EFFECTIVE DATE.
(a) In General.--This Act shall apply with respect to
contracts executed, modified, or renewed on or after January
1, 1998.
(b) Termination.--
(1) In general.--This Act shall not apply on and after
October 1, 2002.
(2) Transition rule.--In the case of any contract under
which, pursuant to this Act, health insurance coverage is
provided for calendar year 2002, the contractor and the
employees shall, notwithstanding section 3(a)(2), pay 1\1/3\
of the otherwise required monthly premium for such coverage
in monthly installments during the period beginning on
January 1, 2002, and ending before October 1, 2002.
______
By Mr. LAUTENBERG:
S. 1497. A bill to release contributors of ordinary trash and minor
amounts of hazardous substances from litigation under Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, and
for other purposes; to the Committee on Environment and Public Works.
THE EQUITY AND PUBLIC INVOLVEMENT IN SUPERFUND ACT OF 1997
Mr. LAUTENBERG. Mr. President, today I am introducing the Equity and
Public Involvement in Superfund Act of 1997 [TEPI].
Hazardous sites, the legacy of our industrial growth, litter the
landscape across America. Many of those sites are toxic and pose real
threats to the groundwater, the air and our water, and accordingly, our
health and the health of the environment. The worst of those sites are
so foul and so polluted that they are beyond the capacity of most
States to handle. These sites, placed on the national priorities list
for clean up under the Comprehensive Environmental Response
Compensation, and Liability Act commonly known as Superfund can take
years to clean up and cost tens of millions of dollars to clean up.
They are ticking time bombs that threaten the health and survival of
entire communities.
Over the years the hazardous waste clean up program has been heavily
criticized as being too slow, involving too much litigation and too
expensive. Congress addressed many of those problems in 1986, and
Administrator Carol
[[Page S12294]]
Browner of the Environmental Protection Agency [EPA] has instituted
many reforms to speed up the cleanup program. The results are dramatic.
EPA has completed cleanup construction at 498 sites and more than 500
additional sites are in construction. Taxpayers have saved $12 billion
because polluters responsible for these sites are performing or funding
approximately 70 percent of Superfund long-term cleanups. But, problems
remain, partly because big corporate polluters are using the present
law to drag tiny merchants and other parties who are minor polluters,
or innocents who merely sent solid waste to a municipal landfill, into
expensive lawsuits.
A recent story televised by ``60 Minutes'' on the Keystone landfill
in Pennsylvania showed the scope of the problem. The story centered on
Barbara Williams, the owner of the Sunny Ray Restaurant in Gettysburg,
PA, who was being sued by the sites' toxic polluters for $75,000
because of the mashed potatoes she sent to the dump. Tiny gift stores,
and other small businesses were dragged into a Superfund suit because
they had sent regular trash to the Keystone Landfill.
EPA Administrator Carol Browner is aware of this problem and has been
trying to do something about it. She has offered expedited settlements,
known as de minimis settlements, to more than 20,000 parties nationwide
whose contribution to Superfund sites is comparatively small. She has
also offered settlements for as little as $1.00, known as de micromis
settlements, to parties whose contributions of hazardous waste to a
site are minuscule, but whose payments to lawyers have been immense.
While EPA has done an admirable job at ameliorating the aspect of the
law that allows contribution litigation to happen, and indeed has
deterred instances of egregious litigation, EPA can only do so much
within the confines of the law and within the context of litigation.
The law needs to be changed to put an end to these harassment suits.
Since 1993, the Senate Environment and Public Works Committee
repeatedly has tried to bridge the differences that exist on Superfund
and send a reform bill to the President.
Mr. President, as the ranking Democratic member of the Superfund
Subcommittee, I have spent many hours over the past several months with
the Chairman of the Environment and Public Works Committee, Senator
Chafee, and the Superfund Subcommittee Chairman Senator Smith,
Administrator Browner and Senator Baucus, the ranking Democratic member
of the full committee. We've been negotiating a broad-based reform of
the Nation's hazardous waste cleanup program. We have narrowed the
differences between our views of how to fix Superfund. On October 22,
1997, Senators Chafee and Smith made a global proffer on each title of
their chairman's mark. The next week, Senator Baucus and I made a
counter to their proffer that made significant concessions on each
title of the bill.
We thought progress was being made. However, instead of responding to
our last offer, the Republicans decided to end negotiations, at least
for now.
Mr. President, Superfund reform has taken too long and, as a result
municipalities, small businesses and communities in and around
Superfund and brownfields sites are paying a high price for our
inability to address their needs. It has long been my position that we
should move ahead in areas where we can agree, and not hold our
citizens and communities hostage to remaining disagreements. Earlier
this year, as I have before, I introduced S. 18, the Brownfields and
Environmental Cleanup Act. I have also introduced S. 1317, the
Environmental Health Protection Act, to move ahead to protect the
health of citizens living near Superfund sites. These are non-
controversial bills that could pass without objection. It is
unacceptable and unconscionable that we would continue to leave
citizens subject to illness--and perhaps even death, by cancer--when we
can take steps now to reduce those risks. As a companion to those
measures, today I am introducing the Equity and Public Involvement Act
to address liability issues that enjoy virtual universal support. This
bill addresses those Superfund failings of which most constituents
complain, and contains solutions that have been agreed on by both
Republicans and Democrats for years.
Mr. President, the bill I am introducing today will bring relief to
the thousands of small businesses and municipalities who have been
swept into the Superfund litigation net by high-paid lawyers for big
corporate polluters, even though those small businesses, churches and
charities sent only municipal solid waste, common garbage, to the site.
The provisions exempt individual homeowners, small business, and small
nonprofits who have disposed only ordinary household trash. The
provisions also limit the liability of big business and municipalities
who have disposed household trash, consistent with an EPA draft policy,
by allowing parties to cash-out on the basis of an easy-to-calculate
formula that depends largely upon the volume of the trash these
entities disposed, and the type of cleanup taking place at the site.
Site did not have toxic pollutants driving up the cost of clean up.
Plain and simple, these provisions prevent polluters from shifting
cleanup costs to local taxpayers.
The bill also provides protection for other businesses who sent small
amounts of toxic waste to sites. Businesses which sent very small
amounts--less than two barrels--will be exempt from lawsuits. Those who
sent small amounts, but more than two barrels, will be subject to an
expedited settlement process. For those small contributors and larger
contributors of toxic waste, the amount they will have to pay will be
cushioned by their ability to pay.
The bill also protects landowners who live next door to hazardous
waste sites by clarifying that they are not liable parties under the
Superfund statute.
In addition, the bill expands the public's ability to participate in
the critical decisions concerning the cleanup in their neighborhoods.
Throughout the negotiations, we have met extensively with community
representatives and stakeholders on Superfund to learn what works and
what doesn't.
Stakeholders meetings with companies involved in multiple Superfund
sites and cleanups at Department of Energy and Defense facilities
showed that when communities near sites are involved early in the
process, remedies are selected more quickly and there is more trust in
the level of cleanup.
Community representatives argued passionately for the right to be
fully informed and involved in these critical decisions. To respond to
this concern, this bill includes provisions that significantly increase
community input at all Superfund sites and in all aspects of the
process of remedying the ill effects of toxic sites. Included in this
bill are provisions for technical assistance grants, known as TAG's, to
communities to hire technical experts to help them interpret the often
highly technical data. These provisions enjoy broad support.
Mr. President, the liability reform provisions I have outlined and
the community participation programs I have described are not
controversial. Many were included in S. 8, a bill that Senators Chafee
and Smith introduced with significant Republican support on the first
day of the Senate session. However, that bill has not moved and
negotiations on a broader bill have broken down, at least for the
moment. Therefore, I think it is appropriate for the Congress to move
ahead to reform the law where we can agree, and continue to discuss and
negotiate the issues on which there remains disagreement.
The bill I am introducing today is simple: It frees the hostages of
stalled Superfund negotiations--the small businesses, churches,
municipalities and their taxpayers, as well as neighboring landowners
caught up in Superfund liability who have been waiting for years for a
Superfund reform bill. They should not be held hostage to forces intent
on repealing the principle of polluter pays and weakening cleanup of
our natural resources who have not let a bill go forward because they
can't get their way on those issues.
Mr. President, this bill does not address all of the issues on which
we could move forward today with virtual unanimous support. But, in
conjunction with other legislation I have introduced, it could solve
many of the worst of Superfund's problems.
This fall I introduced S. 1317, the Environmental Health Protection
Act, to
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expand the public health aspects of hazardous waste cleanup. That bill
allows the Agency for Toxic Substances and Disease Registry [ATSDR] to
study any location where there is concern that hazardous wastes
threaten public health and requires that ATSDR work closely with State
and local health officials in making its assessment.
ATSDR is frequently criticized because its health assessments are
completed too late in the process to be of any real value to local
officials struggling to manage the health impact of a hazardous waste
site on a community. S. 1317 changes the way EPA and the health
authorities do their job. It requires EPA to notify local and State
health officials early in the process that an investigation is
commencing and to better coordinate their activities with local
authorities so that EPA's proposed remedy better reflects local
conditions and needs.
Also, S. 1317 requires EPA to directly involve State and local health
officials in deciding where and how to take samples at hazardous waste
sites. State and local health officials are often the frontline
experts. They have important first-hand information on how a toxic
waste dump affects their community. Working with EPA, they can better
determine and analyze possible health problems in a community and
whether that pattern arises from a toxic waste dump. With this
information, EPA can zero-in on those areas for additional sampling and
further studies as well as design a site appropriate remedy that meets
the special circumstances of the affected community.
There is absolutely no reason why the Congress should not move ahead
to approve S. 1317 now and every reason why we should. It would reduce
health risks to our citizens and I know of no one who objects to it.
On the first day of this Congress, last January, I introduced S. 18,
the Brownfields and Environmental Cleanup Act of 1997. This bill would
make Federal grants for revolving loan funds used for remediation of
brownfields available throughout the country. It would also protect
innocent landowners and prospective purchasers of brownfield sites. Mr.
President, if we could free this hostage, I know the Congress could
move quickly to agree on brownfields legislation.
Mr. President, we appear to be at a standoff in Superfund
negotiations for the moment. If that remains the case next January when
we reconvene, I hope the Congress will move ahead to enact this
legislation, along with my brownfields, community participation and
environmental health protection bills. I also think we should extend
the Superfund excise and corporate income tax. The tax, which expired
in 1995, brings in sufficient revenue to cover the entire fiscal year
1998 Superfund appropriation. Without the tax, industry is saving $26
million a week--an amount sufficient enough to encourage some of those
businesses to oppose any reform if the cost of reform is reinstituting
the tax. Mr. President, that tax must be reinstated.
Mr. President, on the first days of the session this year, Senator
Baucus and I joined EPA Administrator Carol Browner to urge the Senate
to pass a brownfields bill immediately and not hold it hostage to a
broader Superfund bill. I said at that time:
We have a long way to go before we get a bill that enjoys
bipartisan support, and that can be signed into law. We can't
wait. We need to do something now, not only to help the
environment, but to assist those urban areas which are
struggling with economic recovery. . . .
But that bill, because of the number of issues in
controversy, will not pass quickly. And while many people
believe that Superfund can only be passed as a comprehensive
package, last year we did pass some Superfund provisions
separately for lenders, fiduciaries and the Department of
Defense. . . .
In my view, we ought to sit down and quickly pass a
brownfields bill.
The sooner we do, the sooner we may be able to convert
thousands of abandoned industrial sites into engines of
economic development.
Mr. President, those words are even more true today than they were in
January. We've let an entire year go by, without results. Let's pass
this bill, the brownfields legislation, and community participation and
environmental health programs. Let's make Superfund a shield to protect
our communities, not a sword used to hold them hostage.
Mr. President, I look forward to continuing negotiations with
Senators Chafee, Smith, and Baucus next year to address the broader
issues. But with a full year behind us, I believe we should serve up to
our constituents what we can now deliver.
Mr. President, I ask unanimous consent that a copy of the bill be
inserted into the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1497
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Equity and
Public Involvement in Superfund Act of 1997''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--ENHANCED COMMUNITY PARTICIPATION
Sec. 101. Definitions.
Sec. 102. Public participation generally.
Sec. 103. Improvement of public participation in the superfund
decisionmaking process; local community advisory groups;
technical assistance grants.
Sec. 104. Waste Site Information Offices.
Sec. 105. Technical outreach services for communities.
Sec. 106. Recruitment and training program.
Sec. 107. Priority site evaluation.
Sec. 108. Understandable presentation of materials.
Sec. 109. No impediment to response actions.
TITLE II--LIABILITY
Sec. 201. Liability exemptions and limitations.
Sec. 202. Expedited final settlement.
TITLE I--ENHANCED COMMUNITY PARTICIPATION
SEC. 101. DEFINITIONS.
(a) In General.--Section 117 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9617) is amended--
(1) by redesignating subsections (a) through (e) as
subsections (b) through (f), respectively; and
(2) by inserting after the section heading the following:
``(a) Definitions.--In this section:
``(1) Affected community.--The term `affected community'
means a group of 2 or more individuals who may be affected by
the release or threatened release of a hazardous substance,
pollutant, or contaminant from a covered facility.
``(2) Covered facility.--The term `covered facility' means
a facility--
``(A) that has been listed or proposed for listing on the
National Priorities List;
``(B) at which the President is undertaking a removal
action that is expected to exceed--
``(i) in duration, 1 year; or
``(ii) in cost, the funding limit established under section
104(c)(1); or
``(C) with respect to which the Administrator of ATSDR has
accepted a petition requesting a health assessment under
section 104(i)(6)(B), and that is under investigation by the
Administrator of the Environmental Protection Agency under
subsection (a) or (b) of section 104.
``(3) Waste site information office.--The term `waste site
information office' means a waste site information office
established under subsection (j).''.
(b) Conforming Amendments.--
(A) Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 is amended--
(i) in section 111(a)(5) (42 U.S.C. 9611), by striking
``117(e)'' and inserting ``117(f)'';
(ii) in section 113(k)(2)(B) (42 U.S.C. 9613)--
(I) in clause (iii), by striking ``117(a)(2)'' and
inserting ``117(b)(2)''; and
(II) in the third sentence, by striking ``117(d)'' and
inserting ``117(e)''.
(B) Section 2705(e) of title 10, United States Code, is
amended--
(i) by striking ``117(e)'' and inserting ``117(f)''; and
(ii) by striking ``(42 U.S.C. 9617(e))'' and inserting
``(42 U.S.C. 9617(f))''.
SEC. 102. PUBLIC PARTICIPATION GENERALLY.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 101(b)) is amended--
(1) in subsection (b)(2), by inserting ``, adequate
notice,'' after ``oral comments'';
(2) in the first sentence of subsection (e), by striking
``major''; and
(3) by striking subsection (f) and inserting the following:
``(f) Availability of Records.--
``(1) In general.--Except as provided in paragraph (2),
throughout all phases of a response action at a facility and
without the need to file a request under section 552 of title
5, United States Code, the President shall make available to
the affected community (including the recipient of a
technical assistance grant (if a grant has been awarded under
subsection (i)) or a community advisory group (if a community
advisory group has been established)), for inspection and,
subject to reasonable fees, for copying, all records in the
administrative record established by the President under
section 113(k).
``(2) Exempt records.--Paragraph (1) shall not apply to--
[[Page S12296]]
``(A) a record that is exempt from disclosure under section
552 of title 5, United States Code;
``(B) a record that would be subject to the prohibition on
disclosure under section 104(e)(7) if the record were
obtained under section 104; or
``(C) a record that is exchanged between parties to a
dispute under this Act for the purpose of settling the
dispute.''.
SEC. 103. IMPROVEMENT OF PUBLIC PARTICIPATION IN THE
SUPERFUND DECISIONMAKING PROCESS; LOCAL
COMMUNITY ADVISORY GROUPS; TECHNICAL ASSISTANCE
GRANTS.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 101(b)(1)) is amended by adding at the end
the following:
``(g) Improvement of Public Participation in Decisionmaking
Process.--
``(1) Views and preferences.--
``(A) Solicitation.--To the extent practicable, in addition
to the solicitation of public comments on a proposed remedial
action plan under subsection (b)(2), the President, during
the response action process (including a response under
subsection (h)(4)(A)), shall--
``(i) disseminate information to the local community, in
particular, information concerning the effects of the
facility on human health, including the effects on children
and other highly susceptible or highly exposed populations;
``(ii) solicit information from the local community;
``(iii) consider the views of the local community; and
``(iv) include, in any administrative record established
under section 113(k), the views of the local community and
the response of the Administrator to any significant
comments, criticisms, or new data submitted in a written or
oral presentation.
``(B) Procedure.--To solicit the views and concerns of the
community, the Administrator may conduct, as appropriate--
``(i) face-to-face community surveys for purposes including
the identification of the location of private drinking water
wells, historic and current or potential use of water, and
other environmental resources in the community;
``(ii) public meetings; and
``(iii) other appropriate participatory activities.
``(C) Public meetings.--The Administrator shall give
particular consideration to providing the opportunity for
public meetings in advance of significant decision points in
the response action process.
``(D) Consultation.--In determining which of the procedures
set forth in subparagraph (B) may be appropriate, the
Administrator shall consult with a community advisory group,
if 1 has been established under subsection (h), and members
of the affected community.
``(E) Notification.--The President shall notify the local
community and local government concerning--
``(i) the schedule for commencement of construction
activities at a covered facility and the location and
availability of construction plans;
``(ii) the results of the any review under section 121(c)
and any modifications to the selected response made as a
result of the review; and
``(iii) the execution of and any revision to institutional
controls being used as part of a remedial action.
``(2) Meetings between lead agency and potentially
responsible parties.--The President, on a regular basis,
shall inform local government officials, Indian tribes, a
local community advisory group (if any) and, to the extent
practicable, interested members of the affected community of
the progress and substance of technical meetings between the
lead agency and potentially responsible parties regarding a
covered facility.
``(3) Remedial action alternatives.--A member of the local
community may propose a remedial action alternative in the
same manner as any other interested party may propose a
remedial action alternative.
``(h) Community Advisory Groups.--
``(1) Notice.--The President shall, to the extent
practicable, provide notice of an opportunity to form a
community advisory group to members of the affected
community, particularly persons that are immediately
proximate to or that may be or may have been affected by a
release or threatened release.
``(2) Establishment.--The President shall assist in the
establishment of a community advisory group for a covered
facility to achieve direct, regular, and meaningful
communication among members of the local community throughout
the response action process--
``(A) at the request of at least 20 individuals residing
in, or at least 10 percent of the population of, the area in
which the facility is located;
``(B) if there is no request under subparagraph (A), at the
request of any local government with jurisdiction over the
facility; or
``(C) if the President determines that a community advisory
group would be helpful to achieve the purposes of this Act.
``(3) Responsibilities of a community advisory group.--A
community advisory group shall--
``(A) solicit the views of the local community on various
issues affecting the development and implementation of
response actions at the facility;
``(B) serve as a conduit for information between the local
community and other entities represented on the community
advisory group;
``(C) present the views of the local community throughout
the response process; and
``(D) provide the local community reasonable notice of and
opportunities to participate in the meetings and other
activities of the community advisory group.
``(4) Responsibilities of the President.--
``(A) Consultation.--The President shall--
``(i) consult with the community advisory group in
developing and implementing the response action for a covered
facility, including consultation with respect to--
``(I) sampling, analysis, and monitoring plans and results;
``(II) assumptions regarding reasonably anticipated future
land uses;
``(III) potential remedial alternatives;
``(IV) selection and implementation of removal and remedial
actions (including operation and maintenance activities) and
reviews performed under section 121(c); and
``(V) use of institutional controls;
``(ii) encourage the Administrator of ATSDR, in cooperation
with State, Indian tribe, and local public health officials,
to consult with the community advisory group regarding health
assessments;
``(iii) keep the community advisory group informed of
progress in the development and implementation of the
response action; and
``(iv) on request, provide to any person the hazard ranking
score of any facility that has been scored under the
hazardous ranking system, and the preliminary assessment and
site inspection for the facility.
``(B) Consideration of comments.--The President shall
consider comments, information, and recommendations that the
community advisory group provides in a timely manner.
``(C) Consensus.--The community advisory group shall
attempt to achieve consensus among its members before
providing comments and recommendations to the President. If
consensus cannot be reached, the community advisory group
shall report or allow presentation of divergent views.
``(5) Composition of community advisory groups.--
``(A) Members.--
``(i) Members.--The President shall, to the extent
practicable, ensure that the membership of a community
advisory group reflects the composition of the affected
community and a diversity of interests.
``(ii) Represented groups.--A community advisory group for
a covered facility shall include at least 1 representative of
the recipients of a technical assistance grant, if any has
been awarded with respect to the facility, and shall include,
to the extent practicable, a person from each of the
following groups:
``(I) Persons who reside or own residential property near
the facility.
``(II) Persons who, although they may not reside or own
property near the facility, may be affected by the facility
contamination.
``(III) Local public health practitioners or medical
practitioners (particularly those who are practicing in the
affected community).
``(IV) Local Indian communities that may be affected by the
facility contamination.
``(V) Local citizen, civic, environmental, or public
interest groups.
``(VI) Members of the local business community.
``(VII) Employees at the facility during facility
operation.
``(B) Local residents.--Local residents shall, to the
extent practicable, comprise a majority of the voting
membership of a community advisory group.
``(C) Number of voting members.--The President shall, to
the extent practicable, ensure that the voting membership of
the community advisory group does not exceed 20 individuals.
``(D) Compensation.--A member of a community advisory group
shall serve without compensation.
``(E) Nonvoting members.--The President shall provide
opportunities for representatives of the following entities
to participate (as nonvoting members), as appropriate, in
community advisory group meetings for purposes including
providing information and technical expertise:
``(i) The Administrator.
``(ii) Other Federal agencies.
``(iii) Affected States.
``(iv) Affected Indian tribes.
``(v) Representatives of affected local governments (such
as city or county governments or local emergency planning
committees, and any other governmental unit that regulates
land use or land use planning in the vicinity of the
facility).
``(vii) Facility owners.
``(viii) Potentially responsible parties.
``(6) Technical assistance grants.--The President may award
a technical assistance grant under subsection (i) to a
community advisory group.
``(7) Administrative support.--The President, to the extent
practicable, may provide administrative services and support
services to the community advisory group.
``(8) Federal advisory committee act.--The Federal Advisory
Committee Act (5 U.S.C. App.) shall not apply to a community
advisory group, to a citizen advisory group (designated by
the President to serve the functions of a community advisory
group, or
[[Page S12297]]
to a Department of Defense restoration advisory board,
Department of Energy Site Specific advisory board, or an
ATSDR citizen advisory panel.
``(9) Other public involvement.--The existence of a
community advisory group shall not diminish any other
obligation of the President to consider the views of any
person in selecting response actions under this Act. Nothing
in this section affects the status of any community advisory
group formed before the date of enactment of this subsection.
Nothing in this section affects the status, decisions, or
future formation of any Department of Defense Restoration
Advisory Board, or Department of Energy Site Specific
Advisory Board, and no community advisory group need be
established for a facility if any such Board has been
established for the facility.
``(i) Technical Assistance Grants.--
``(1) Authority.--
``(A) In general.--The President may make technical
assistance grants available to members of an affected
community for a covered facility in accordance with this
subsection.
``(B) Accessibility of application process.--To ensure that
the application process for a technical assistance grant is
accessible to all affected citizen groups, the President
shall periodically review the process and the application
and, based on the review, implement appropriate changes to
improve access.
``(C) Notice of availability of grants.--The President
shall solicit the assistance of a waste site information
office in notifying the affected community (including an
Indian tribe) of the availability of a technical assistance
grant for a covered facility as soon as practicable after the
President has begun a response action at the covered
facility.
``(2) Special rules.--
``(A) No matching contribution.--No matching contribution
shall be required for a technical assistance grant.
``(B) Advance payments.--The President may disburse the
grant to a recipient in advance of the recipient's making
expenditures to be covered by the grant. In the event that
the President advances funds, funds shall be advanced in
amounts that do not exceed the greater of $5,000 or 10
percent of the grant amount.
``(3) Limit per facility.--
``(A) In general.--The Administrator may award not more
than 1 technical assistance grant at 1 time with respect to a
single covered facility.
``(B) Extension.--The Administrator may extend a project
period established in a grant to facilitate public
participation at all stages of a response action.
``(4) Funding amount.--
``(A) Limit.--Except as provided in subparagraph (B), the
amount of a technical assistance grant may not exceed $50,000
for a single grant recipient.
``(B) Waiver of limit.--The President may waive the limit
on the amount of a technical assistance grant under
subparagraph (A) if a waiver is necessary--
``(i) to carry out the purposes of this Act; or
``(ii) to reflect--
``(I) the complexity of the response action;
``(II) the nature and extent of contamination at the
facility;
``(III) the level of facility activity;
``(IV) projected total needs as requested by the grant
recipient;
``(V) the sizes and distances between the affected
communities; or
``(VI) the ability of the grant recipient to identify and
raise funds from other non-Federal sources.
``(5) Considerations.--In determining how to structure
payment of the amount of a technical assistance grant,
whether to extend a grant project period under subparagraph
(3)(B), or whether to grant a waiver under paragraph (4)(B),
the Administrator may consider factors such as the
geographical size of the facility and the distances between
affected communities.
``(6) Use of technical assistance grants.--
``(A) In general.--A technical assistance grant recipient
may use a grant--
``(i) to hire experts to assist the recipient in
interpreting information and presenting the recipient's views
with regard to a response action at the facility (including
any aspect of a response action identified in subsection
(h)(4)(A));
``(ii) to publish newsletters or otherwise disseminate
information to other members of the local community; or
``(iii) to provide funding for training for interested
affected citizens to enable the citizens to more effectively
participate in the response process.
``(B) Limitation on use for training.--A technical
assistance grant recipient may use not more than 10 percent
of the amount of a technical assistance grant, or $5,000,
whichever is less, for training under subparagraph (A)(iii).
``(7) Grant guidelines.--Not later than 180 days after the
date of enactment of this paragraph, the President shall
ensure that any guidelines concerning the management of
technical assistance grants by grant recipients conform with
this section.''.
SEC. 104. WASTE SITE INFORMATION OFFICES.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 103) is amended by adding at the end the
following:
``(j) Waste Site Information Offices.--
``(1) Establishment.--
``(A) In general.--Subject to subparagraph (B), not later
than 18 months after the date of enactment of this
subsection, a State or Indian tribe with a facility on the
National Priorities List within the State or Indian tribe's
borders or reservation boundaries, respectively, may
establish a waste site information office to perform the
functions set forth in paragraph (3).
``(B) Existing offices.--A State or Indian tribe may
designate an office in existence before the date of enactment
of this subsection to perform the functions of a waste site
information office.
``(C) EPA role.--If the State or Indian tribe notifies the
Administrator that the State or Indian tribe does not intend
to establish a waste site information office, or if the
Administrator determines that the State or Indian tribe has
not established, within 18 months after the date of enactment
of this subsection, an office to perform the functions of a
waste site information office, the Administrator shall
establish an office within the Environmental Protection
Agency to perform the functions.
``(2) Funding.--
``(A) In general.--Funding for the operation of waste site
information offices, or State, Indian tribe, or Environmental
Protection Agency offices that perform similar functions,
collectively, shall not exceed $12,500,000 for a fiscal year.
``(B) State or tribal grants.--Each State or Indian tribe
that has a waste site information office, or each State,
Indian tribe, or Environmental Protection Agency office
performing the functions of a waste site information office,
shall receive not less than $100,000 for a fiscal year for
the performance of those functions.
``(C) Formula.--
``(i) In general.--The Administrator shall publish
guidelines establishing a formula for determining the amount
of funding for each waste site information office.
``(ii) Factors.--The formula shall include factors such as
the number of facilities listed on the National Priorities
List and the number of other covered facilities within the
State's borders or Indian tribe's reservation boundaries.
``(3) Functions.--
``(A) In general.--A waste site information office shall,
to the extent practicable--
``(i) assist the Administrator in--
``(I) informing the public regarding the existence of the
waste site information office and its services and making
available the information described in clause (ii); and
``(II) notifying the public of public meetings and other
opportunities to participate under this Act and the rights of
the public under this Act; and
``(ii) serve as a clearinghouse, and maintain records, as
appropriate, for waste site information, including--
``(I) information relating to the operation of Federal,
State, and tribal hazardous substance and waste laws with
respect to the State or Indian tribe;
``(II) information relating to each covered facility in the
State or tribal reservation, to the extent information
becomes available, including--
``(aa) the location, characteristics, and name of owner and
operator of the covered facility;
``(bb) the hazardous substances, pollutants, and
contaminants at the facility;
``(cc) the response actions being taken, including records
of any institutional controls that are included in the
response actions;
``(dd) use of institutional controls;
``(ee) any health studies generated in connection with the
covered facility;
``(ff) the status of the response actions at the covered
facility;
``(gg) the results of a review under section 121(c); and
``(hh) the locations of the administrative record created
for the facility, if any, under section 113(k);
``(III) a description of the Administrator's process for
identifying covered facilities and possible response actions
under this Act;
``(IV) on request, the hazard ranking score of any facility
for which a hazardous ranking score has been prepared and
that is within the waste site information office's area of
responsibility and the preliminary assessment or site
inspection for the facility; and
``(V) identification of resources, including--
``(aa) technical assistance grants under subsection (h);
``(bb) opportunities for forming a community advisory group
under subsection (g);
``(cc) opportunities to petition the Administrator of ATSDR
to perform a health assessment or other related health
activity under section 104(i)(6)(B); and
``(dd) additional technical resources, including
information about how to access national databases containing
toxicological, health, or other pertinent information.
``(B) Report.--
``(i) In general.--Each waste site information office shall
annually submit to the Administrator a report documenting how
the funds under paragraph (2) were used to carry out the
functions established by this subsection.
``(ii) Verification by inspector general.--The Inspector
General of the Environmental Protection Agency shall
periodically review the programs carried out under this
subsection.
``(iii) Termination of grant.--The Administrator shall
terminate the grant if--
``(I) the Administrator is unable to verify a
certification; or
[[Page S12298]]
``(II) the Administrator determines that the grant is not
being used in a manner that is consistent with the functions
under paragraph (3).''.
SEC. 105. TECHNICAL OUTREACH SERVICES FOR COMMUNITIES.
Section 311(d)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9660(d)(2)) is amended--
(1) by striking ``shall include, but not be limited to,
the conduct of research'' and inserting the following:
``shall include--
``(A) the conduct of research'';
(2) by striking the period at the end and inserting ``;
and''; and
(3) adding at the end the following:
``(B) the conduct of a program to provide to affected
communities educational and technical assistance to and
information regarding the effects or potential effects of the
contamination on human health and the environment.''.
SEC. 106. RECRUITMENT AND TRAINING PROGRAM.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 104) is amended by adding at the end the
following:
``(k) Recruitment and Training Program.--
``(1) In general.--The Administrator, in consultation with
the National Institute of Environmental Health Science, shall
conduct a program to assist in the recruitment and training
of individuals in an affected community for employment in
response actions conducted at the facility concerned.
``(2) Recruitment, training, and employment.--The
Administrator shall encourage a person conducting a response
action under this Act to have contractors of the person train
in remediation skills and employ persons from the affected
community.''.
SEC. 107. PRIORITY SITE EVALUATION.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 106) is amended by adding at the end the
following:
``(l) Priority Site Evaluation.--
``(1) Evaluation.--The Administrator shall solicit the
assistance of the waste site information office in
identifying 3 facilities in the area covered by each regional
office of the Administrator in major urban areas, or other
areas with minority populations and low-income populations
(such as within Indian country, Indian reservations, and poor
rural communities) that are likely to warrant inclusion on
the National Priorities List.
``(2) Priority.--Not later than 2 years after the date of
enactment of this subsection, a facility identified under
paragraph (1) shall be accorded a priority in evaluation for
listing on the National Priorities List and scoring and shall
be evaluated for listing on the National Priorities List.''.
SEC. 108. UNDERSTANDABLE PRESENTATION OF MATERIALS.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 107) is amended by adding at the end the
following:
``(m) Presentation of Materials.--The President shall
ensure that information prepared for or distributed to the
public under this section shall be provided or summarized in
a manner that may be easily understood by the community,
considering any unique cultural needs of the community.''.
SEC. 109. NO IMPEDIMENT TO RESPONSE ACTIONS.
Section 117 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9617) (as
amended by section 109) is amended by adding at the end the
following:
``(n) No Impediment to Response Actions.--Nothing in this
section shall impede or delay the ability of the
Environmental Protection Agency to conduct a response action
necessary to protect human health and the environment.''.
TITLE II--LIABILITY
SEC. 201. LIABILITY EXEMPTIONS AND LIMITATIONS.
(a) Liability Exemptions.--Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607) is amended by adding at the end the
following:
``(o) Liability Exemptions.--
``(1) Contiguous properties.--
``(A) Not considered to be an owner or operator.--A person
that owns or operates real property that is contiguous to or
otherwise similarly situated with respect to a facility at
which there has been a release or threatened release of a
hazardous substance, that is or may be contaminated by the
release, shall not be considered to be an owner or operator
under paragraph (1) or (2) of subsection (a) solely by reason
of the contamination if--
``(i) the person did not cause, contribute, or consent to
the release or threatened release;
``(ii) the person is not associated with any other person
that is potentially liable for any response costs at the
facility at which there has been a release or threatened
release of a hazardous substance, through any familial
relationship, or any contractual, corporate, or financial
relationship;
``(iii) the person exercised appropriate care with respect
to hazardous substances from the facility, in light of all
relevant facts and circumstances;
``(iv) the person is in compliance with any land use or
activity restrictions on the property established or relied
on in connection with a response action at the facility,
including informing other persons that the person allows to
occupy or use the property of the restrictions and taking
prompt action to correct any noncompliance by such persons;
and
``(v) the person provides full cooperation, assistance, and
access to the persons that are authorized to conduct response
actions at the facility, including the cooperation and access
necessary for the installation, preservation of integrity,
operation, and maintenance of any complete or partial
response action at the facility.
``(B) Assurances.--The President may issue an assurance
that no enforcement action under this Act will be initiated
against a person described in paragraph (1).
``(2) De micromis exemption.--
``(A) Notwithstanding paragraphs (1) through (4) of
subsection (a), a person shall not be liable to the United
States or any other person (including liability for
contribution) under this Act for any response costs incurred
with respect to a facility if--
``(i) liability is based solely on paragraph (3) or (4) of
subsection (a);
``(ii) the total of materials containing a hazardous
substance that the person arranged for disposal or treatment
of, arranged with a transporter for transport for disposal or
treatment, of, or accepted for transport for disposal or
treatment, at the facility, was less than 110 gallons of
liquid materials or less than 200 pounds of solid materials
(or such other amount as the Administrator may determine on a
site-specific basis); and
``(iii) the acts upon which liability is based took place
wholly before July 1, 1997.
``(B) Exception.--Subparagraph (A) shall not apply in a
case in which the President determines that the material
containing hazardous substances referred to in subparagraph
(A) contributed significantly or could contribute
significantly, either individually or in the aggregate, to
the cost of the response action with respect to the facility.
``(3) Municipal solid waste exemption.--Notwithstanding
paragraphs (1) through (4) of subsection (a), a person shall
not be liable to the United States or any other person
(including liability for contribution) under this Act for any
response costs incurred with respect to a facility, to the
extent that--
``(A) liability is based on paragraph (3) or (4) of
subsection (a); and
``(B) the person is--
``(i) an owner, operator, or lessee of residential property
from which all of the person's municipal solid waste was
generated;
``(ii) a business entity that, during the taxable year
preceding the date of transmittal of written notification
that the business is a potentially responsible party, employs
not more than 100 individuals; or
``(iii) a small nonprofit organization from which all of
the person's municipal solid waste was generated.
(b) Liability Limitations.--Section 107 of the
Comprehensive Environmental Response, Liability, and
Compensation Act of 1980 (42 U.S.C. 9607) (as amended by
subsection (a)) is amended by adding at the end the
following:
``(p) Liability Limitations.--
``(1) In general.--A municipality that is liable for
response costs under paragraph (1) or (2) of subsection (a)
on the basis of ownership or operation of a municipal
landfill that is listed on the National Priority List on or
before January 1, 1997, shall be eligible for a settlement of
that liability.
``(2) Settlement amount.--
``(A) In general.--The President shall offer a settlement
to a party with respect to liability described in paragraph
(1) on the basis of a payment or other obligation equivalent
in value to not more than 20 percent of the total response
costs in connection with the facility.
``(B) Increased amount.--The President may increase the
percentage under subparagraph (A) to not more than 35 percent
if the President determines that--
``(i) the municipality committed specific acts that
exacerbated environmental contamination or exposure with
respect to the facility; or
``(ii) the municipality, during the period of ownership or
operation of the facility, received operating revenues
substantially in excess of the sum of the waste system
operating costs plus 20 percent of total estimated response
costs in connection with the facility.
``(3) Performance of response actions.--As a condition of a
settlement with a municipality under this subsection, the
President may require that the municipality perform or
participate in the performance of the response actions at the
facility.
``(4) Ownership or operation by 2 or more municipalities.--
A combination of 2 or more municipalities that jointly own or
operate a facility shall be considered to be a single owner
or operator for the purpose of calculating a settlement offer
under this subsection.
``(5) Conditions.--The limitation on settlement amount
under paragraph (2) shall not apply on or after the date that
is 2 years after the date of enactment of this subsection
unless the municipality institutes or participates in a
qualified household hazardous waste collection program before
the date that is 2 years after the date of enactment of this
subsection.
[[Page S12299]]
``(6) Exceptions.--The President may decline to offer a
settlement under this subsection with respect to a facility
if the President determines that--
``(A) there is no waste except municipal solid waste or
municipal sewage sludge at the facility; or
``(B) all known potentially responsible parties are
insolvent, defunct, or eligible for a settlement under this
subsection or section 122(g).''.
(c) Costs and Fees.--Section 107 of the Comprehensive
Environmental Response, Liability, and Compensation Act of
1980 (42 U.S.C. 9607) (as amended by subsection (b)) is
amended by adding at the end the following:
``(q) Costs and Fees.--A person that commences an action
for recovery of response costs or for contribution against a
person that is not liable, or that has entered into an
expedited settlement under section 107(p) or 122(g), shall be
liable to the defendant for all reasonable costs of defending
the action, including all reasonable attorney's fees and
expert witness fees.''.
SEC. 202. EXPEDITED FINAL SETTLEMENT.
(a) Parties Eligible.--Section 122(g) of the Comprehensive
Environment Response, Liability, and Compensation Act of 1980
(42 U.S.C. 9622(g)) is amended--
(1) by striking the subsection heading and inserting the
following:
``(g) Expedited Final Settlement.--'';
(2) in paragraph (1)--
(A) by redesignating subparagraph (B) as subparagraph (C);
(B) by striking ``(1)'' and all that follows through
subparagraph (A) and inserting the following:
``(1) Parties eligible.--
``(A) In general.--The President shall, as expeditiously as
practicable, notify of eligibility for a settlement, and
offer to reach a final administrative or judicial settlement
with, each potentially responsible party that, in the
judgment of the President, meets 1 or more of the conditions
stated in subparagraphs (B), (C), (D), and (E).
``(B) De minimis contribution.--The condition stated in
this subparagraph is that the potentially responsible party's
liability is for response costs based on paragraph (3) or (4)
of subsection (a) and the party's contribution of hazardous
substances at a facility is de minimis. For the purposes of
this subparagraph, a potentially responsible party's
contribution shall be considered to be de minimis only if the
President determines that both of the following criteria are
met:
``(i) The amount of material containing a hazardous
substance contributed by the potentially responsible party to
the facility is minimal relative to the total amount of
material containing hazardous substances at the facility. The
amount of a potentially responsible party's contribution
shall be presumed to be minimal if the amount is 1 percent or
less of the total amount of materials containing hazardous
substances at the facility, unless the Administrator
identifies a different threshold based on site-specific
factors.
``(ii) The material containing a hazardous substance
contributed by the potentially responsible party does not
present toxic or other hazardous effects that are
significantly greater than the toxic or other hazardous
effects of other material containing hazardous substances at
the facility.'';
(C) in subparagraph (C) (as redesignated by subparagraph
(A))--
(i) by redesignating clauses (i) through (iii) as
subclauses (I) through (III), respectively, and adjusting the
margins appropriately;
(ii) by striking ``(C) The potentially responsible party''
and inserting the following:
``(C) Owners of real property.--
``(i) In general.--The condition stated in this
subparagraph is that the potentially responsible party''; and
(iii) by striking ``This subparagraph (B)'' and inserting
the following:
``(ii) Applicability.--Clause (i)''; and
(D) by adding at the end the following:
``(D) Contribution of municipal solid waste and municipal
sewage sludge.--
``(i) In general.--The condition stated in this
subparagraph is that the liability of the potentially
responsible party is for response costs based on paragraph
(3) or (4) of section 107(a) and on the potentially
responsible party's having arranged for disposal or treatment
of, arranged with a transporter for transport for disposal or
treatment of, or accepted for transport for disposal or
treatment of, municipal solid waste or municipal sewage
sludge at a facility listed on the National Priorities List.
``(ii) Settlement amount.--
``(I) In general.--The President shall offer a settlement
to a party referred to in clause (i) with respect to
liability under paragraph (3) or (4) of section 107(a) on the
basis of a payment of $3.05 per ton of municipal solid waste
or municipal sewage sludge that the President estimates is
attributable to the party.
``(II) Facility-specific adjustment.--The President may
adjust the $3.05 amount in subclause (I), on a facility-
specific basis, to not more than $3.25 per ton, if the
President determines that any of the following factors is
present at a facility:
``(aa) A shallow aquifer underlies the facility.
``(bb) The facility is located in an area of high rainfall
or cold ambient air temperature.
``(cc) The ground water affected by the facility is
classified as drinking water.
``(dd) Low-permeability cover material (such as clay) is
unavailable at the facility.
``(III) Revision.--
``(aa) In general.--The President may revise the $3.05 and
$3.25 settlement amounts under subclauses (I) and (II) by
regulation.
``(bb) Basis.--A revised settlement amount under item (aa)
shall reflect the estimated per-ton cost of closure and post-
closure activities at a representative facility containing
only municipal solid waste.
``(iii) Conditions.--The provisions for settlement
described in this subparagraph shall not apply with respect
to a facility where there is no waste except municipal solid
waste or municipal sewage sludge.
``(iv) Municipal sewage sludge containing certain
residue.--The President may decline to offer a settlement
under this subsection to a person that arranged for disposal
or treatment of, arranged with a transporter for transport
for disposal or treatment of, or accepted for transport for
disposal or treatment, municipal sewage sludge, if the
President determines that the municipal sewage sludge
contributed or could contribute significantly to the cost of
the response action at the facility.
``(v) Adjustment for inflation.--The Administrator may by
guidance periodically adjust the settlement amounts under
clause (ii) to reflect changes in the Consumer Price Index
(or other appropriate index, as determined by the
Administrator).
``(vi) Municipal owners and operators.--A municipality that
arranged for disposal or treatment of, arranged with a
transporter for transport for disposal or treatment of, or
accepted for transport for disposal or treatment, municipal
solid waste or municipal sewage sludge at a facility and is a
municipality that is also potentially liable under paragraph
(1) or (2) of section 107(a) at the facility shall be
eligible for settlement under this subparagraph and section
107(p). The settlement amount shall be equal to the
settlement amount under clause (ii) with respect to its
contribution of municipal solid waste or municipal sewage
sludge, plus the amount provided in section 107(p) as to the
liability of the municipality under paragraph (1) or (2) of
section 107(a).
``(E) Reduction in settlement amount based on limited
ability to pay.--
``(i) In general.--The condition stated in this
subparagraph is that the potentially responsible party--
``(I) is--
``(aa) a natural person;
``(bb) a small business; or
``(cc) a municipality; and
``(II) demonstrates to the President an inability or a
limited ability to pay response costs.
``(ii) Costs borne by the united states.--Where the United
States enters into a settlement under section 122 with a
party that agrees to perform work at the same facility that
is the subject of a settlement under clause (i), the United
States shall contribute the difference between--
``(I) the aggregate share that the Administrator
determines, on the basis of information presented, to be
specifically attributable to parties with a limited ability
to pay response costs; and
``(II) the share actually assumed by those parties in any
settlements with the United States under clause (i).
``(iii) Small businesses.--
``(I) Definition of small business.--In this subparagraph,
the term `small business' means a business entity that--
``(aa) together with its parents, subsidiaries, and other
affiliates, had an average of not more than 50 full-time
equivalent employees and an average of not more than
$3,000,000 in annual gross revenues, as reported to the
Internal Revenue Service, during the 3 years preceding the
date on which the business entity first received notice from
the President of its potential liability under this Act; and
``(bb) is not associated with any other person potentially
responsible for response costs at the facility through any
familial relationship, or any contractual, corporate, or
financial relationship other than that arising from an
arrangement for disposal or treatment, or for transport for
disposal or treatment of hazardous substances.
``(iv) Definition of affiliate.--In this subparagraph, the
term `affiliate' has the meaning given the term `small
business concern' in regulations promulgated by the Small
Business Administration in accordance with the Small Business
Act (15 U.S.C. 631 et seq.).
``(v) Other potentially responsible parties.--This
subparagraph does not affect the President's authority to
evaluate the ability to pay of a potentially responsible
party other than a natural person, small business, or
municipality, or to enter into a settlement with such other
party based on that party's ability to pay.
``(F) Basis of determination.--If the President determines
that a potentially responsible party is not eligible for
settlement under this subsection, the President shall state
the reasons for the determination in writing to any
potentially responsible party that requests a settlement
under this paragraph. A determination by the President under
this paragraph shall not be subject to judicial review.''.
(b) Settlement Offers.--Section 122 of the Comprehensive
Environment Response, Liability, and Compensation Act of 1980
(42 U.S.C. 9622) is amended--
(1) in subsection (g)--
(A) by redesignating paragraph (6) as paragraph (10); and
[[Page S12300]]
(B) by inserting after paragraph (5) the following:
``(6) Settlement offers.--
``(A) In general.--As soon as practicable after receipt of
sufficient information, the Administrator shall submit a
written settlement offer to each person that the
Administrator determines, based on information available to
the Administrator at the time at which the determination is
made, to be eligible for a settlement under paragraph (1).
``(B) Information.--At the time at which the Administrator
submits an offer under paragraph (1), the Administrator
shall, at the request of the recipient of the offer, make
available to the recipient any information available under
section 552 of title 5, United States Code, on which the
Administrator bases the settlement offer, and if the
settlement offer is based in whole or in part on information
not available under that section, so inform the recipient.
``(7) Litigation moratorium.--
``(A) In general.--No person eligible for an expedited
settlement under paragraph (1) shall be named as a defendant
in any action under this Act for recovery of response costs
(including an action for contribution) during the period
beginning on the date on which the person receives from the
President written notice of its potential liability and
notice that it is a party that may qualify for an expedited
settlement, and ending on the earlier of--
``(i) the date that is 90 days after the date on which the
President tenders a written settlement offer to the person;
or
``(ii) the date that is 1 year after the date specified in
subparagraph (A).
``(B) Tolling of period of limitation.--The period of
limitation under section 113(g) applicable to a claim against
a person described in subparagraph (A) for response costs or
contribution shall be tolled during the period described in
subparagraph (A).
``(C) Stay of litigation.--If, before the date of enactment
of this paragraph, a person described in subparagraph (A) has
been named as a defendant in an action for recovery of
response costs or contribution, the court shall, unless a
stay would result in manifest injustice, stay the action as
to that claim until the end of the period described in
subparagraph (A).
``(8) Notice of settlement.--After a settlement under this
subsection becomes final with any person with respect to a
facility, the President shall promptly notify potentially
responsible parties at the facility that have not resolved
their liability to the United States of the settlement.'';
and
(2) by adding at the end the following:
``(n) Exceptions.--Subsection (g) and subsections (o) and
(p) of section 107 shall not apply in a case in which the
President determines that the person has failed to comply
with any request for information or administrative subpoena
issued by the President under this Act, or has impeded or is
impeding the performance of a response action with respect to
the facility.
``(o) Waiver of Claims.--The President may require, as a
condition of settlement under this subsection or section
107(p), that a potentially responsible party waive some or
all of the claims (including a claim for contribution under
section 113) that the party may have against other
potentially responsible parties for all response costs
incurred at the facility.
``(p) Relationship to Liability Under Other Law.--Nothing
in this section affects the obligation of any person to
comply with any other Federal, State, or local law (including
requirements under the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.).''.
(c) Regulations.--The Administrator of the Environmental
Protection Agency has the authority, under section 115 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9615), to promulgate
additional regulations concerning the amendments made by this
section.
______
By Mr. DORGAN (for himself, Mr. Lautenberg, Mr. Bumpers, Mr.
Conrad, and Mr. Wellstone):
S. 1498. A bill to require States to adopt laws prohibiting open
alcoholic containers in automobiles; to the Committee on Environment
and Public Works.
the national drunk driving protection act
Mr. DORGAN. Mr. President, today I am introducing legislation to
combat our Nation's continual problem with drunk driving. This problem,
that attacks young and old alike, is multifaceted and must be combating
on several fronts. My bill addresses the need to take alcohol out of
automobiles by establishing a national policy prohibiting open alcohol
containers in automobiles.
To put this problem in perspective, an average of one person every
half hour dies as a result of drunk driving, and that worked out to be
17,272 alcohol-related fatalities in 1996 according to the Department
of Transportation. This figure is over 40 percent of the total number
of traffic fatalities in the United States. The sad irony in these
statistics is that drunk driving is a preventable problem.
Even more heart wrenching is that drunk driving is killing a
disproportionate amount of our youth and young adults. In 1995, while
30 percent of our driving population was between the ages of 21-34, 50
percent of the fatalities and 50 percent of the drunk driving injuries
were in this age group. That amounted to 6,760 dead and 95,800 injured
young adults.
One way we must combat drunk driving is to ban the consumption of
alcohol in automobiles. According to the National Highway Traffic
Safety Administration, in 22 States it is still legal for passengers in
a vehicle to be drinking while the vehicle is in operation. And in 10
States, it is perfectly legal for a driver of a car to have one hand on
the steering wheel and drinking a bottle of whisky in the other. It
seems inexcusable to me that we have a circumstance in this country
where citizens cannot be assured that in every State and in every local
jurisdiction in the Nation that there are not laws against people
drinking and driving at the same time. This legislation will provide
that assurance and prohibit open containers in every State.
I hope that the Senate will have a good debate on drunk driving
issues early next year when we return to debate the reauthorization of
the Intermodal Surface Transportation Efficiency Act [ISTEA]. I intend
to offer this legislation as amendment to the ISTEA reauthorization and
I urge my colleagues to support this effort.
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. 1498
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 ``National Drunk Driving
Protection Act''.
SECTION 2. OPEN CONTAINER LAWS.
(a) Establishment.--Chapter I of title 23, United States
Code, is amended by inserting after section 153 the
following:
``Sec. 154. Open container requirements
``(a) Definitions.--In this section:
``(1) Alcoholic beverage.--The term `alcoholic beverage'
has the meaning given the term in section 158(c).
``(2) Motor vehicle.--The term `motor vehicle' means a
vehicle driven or drawn by mechanical power and manufactured
primarily for use on public highways, but does not include a
vehicle operated exclusively on a rail or rails.
``(3) Open alcoholic beverage container.--The term `open
alcoholic beverage container' has the meaning given the term
in section 410(i).
``(4) Passenger area.--The term `passenger area' shall have
the meaning given the term by the Secretary by regulation.
``(b) Penalty.--
``(1) General rule.--
``(A) Fiscal year 2000.--If, at any time in fiscal year
2000, a State does not have in effect a law described in
subsection (c), the Secretary shall transfer 1.5 percent of
the funds apportioned to the State for fiscal year 2001 under
each of paragraphs (1)(A), (1)(C), and (3) of section 104(b)
to the apportionment of the State under section 402.
``(B) Fiscal years thereafter.--If, at any time in a fiscal
year beginning after September 30, 2000, a State does not
have in effect a law described in subsection (c), the
Secretary shall transfer 3 percent of the funds apportioned
to the State for the following fiscal year under each of
paragraphs (1)(A), (1)(C), and (3) of section 104(b) to the
apportionment of the State under section 402.
``(c) Open Container Laws.--
``(1) In general.--For the purposes of this section, each
State shall have in effect a law that prohibits the
possession of any open alcoholic beverage container, or the
consumption of any alcoholic beverage, in the passenger area
of any motor vehicle (including possession or consumption by
the driver of the vehicle) located on a public highway, or
the right-of-way of a public highway, in the State.
``(2) Motor vehicles designed to transport many
passengers.--For the purposes of this section, if a State has
in effect a law that makes unlawful the possession of any
open alcoholic beverage container in the passenger area by
the driver (but not by a passenger) of a motor vehicle
designed to transport more than 10 passengers (including the
driver) while being used to provide charter transportation of
passengers, the State shall be deemed to have in effect a law
described in this subsection with respect to such a motor
vehicle for each fiscal year during which the law is in
effect.
``(d) Federal Share.--The Federal share of the cost of a
project carried out under section 402 with funds transferred
under subsection (b) to the apportionment of a State under
section 402 shall be 100 percent.
``(e) Transfer of Obligation Authority.--
``(1) In general.--If the Secretary transfers under
subsection (b) any funds to the apportionment of a State
under section 402 for a fiscal year, the Secretary shall
allocate to
[[Page S12301]]
the State an amount, determined under paragraph (2), of
obligation authority distributed for the fiscal year for
Federal-aid highways and highway safety construction programs
for carrying out projects under section 402.
``(2) Amount.--The amount of obligation authority referred
to in paragraph (1) shall be determined by multiplying--
``(A) the amount of funds transferred under subsection (b)
to the apportionment of the State under section 402 for the
fiscal year; by
``(B) the ratio that--
``(i) the amount of obligation authority distributed for
the fiscal year to the State for Federal-aid highways and
highway safety construction programs; bears to
``(ii) the total of the sums apportioned to the State for
Federal-aid highways and highway safety construction programs
(excluding sums not subject to any obligation limitation) for
the fiscal year.
``(f) Limitation on Applicability of Highway Safety
Obligations.--Notwithstanding any other provision of law, no
limitation on the total of obligations for highway safety
programs under section 402 shall apply to funds transferred
under subsection (b) to the apportionment of a State under
section 402.''.
(b) Conforming Amendment.--The analysis for chapter 1 of
title 23, United States Code, is amended by inserting after
the item relating to section 153 the following:
``154. Open container requirements.''
______
By Mrs. BOXER:
S. 1499. A bill to amend the title XXVII of the Public Health Service
Act and other laws to assure the rights of enrollees under managed care
plans; to the Committee on Labor and Human Resources.
the health insurance consumer's bill of rights act of 1997
Mrs. BOXER. Mr. President, today I am introducing the Health
Insurance Consumer's bill of rights. I have been working closely on
this bill with Congressman Chuck Schumer, who has introduced companion
legislation in the House.
Our will address an increasing crisis of confidence in our Nation's
health care system. This crisis of confidence is especially evident for
the increasing number of Americans enrolled in managed care health
plans.
A recent survey conducted by the Henry Kaiser Family Foundation and
Harvard University found that only 44 percent of enrollees in managed
care health care plans believe it is very likely that necessary
treatments would be covered if they became seriously ill. Fully 69
percent of enrollees in traditional fee-for-service plans believed they
would be adequately covered.
The survey found that the American people hold managed care plans
generally in low esteem and they support efforts to improve the health
insurance system. That, Mr. President, is exactly what the Boxer-
Schumer bill aims to do.
The Health Insurance Consumer's bill of rights requires all health
insurance plans to meet basic requirements for conduct, coverage, and
consumer disclosure.
Specifically, the bill requires that all managed care plans have an
adequate number of primary care physicians and specialists to meet the
health care needs of their enrollees. It requires health plans to cover
emergency care, terminate so-called gag rules that limit communication
between a doctor and a patient. It requires the annual disclosure of a
wealth of important consumer information to enrollees and potential
enrollees, and finally, this bill contains a number of important
provisions to ensure that women are treated fairly in managed care
plans.
I want to make clear that the Schumer-Boxer bill is not antimanaged
care. On the contrary, the bill accepts that managed care plans are the
chosen kind of coverage for millions of Americans. It is precisely for
that reason that Congress must act to ensure that managed care plans
act responsibly and provide quality coverage.
I hope the Senate will consider this bill carefully and act upon it
early next year.
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. 1499
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Health
Insurance Consumer's Bill of Rights Act of 1997''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--HEALTH INSURANCE BILL OF RIGHTS
Sec. 101. Health insurance bill of rights.
``Part C--Health Insurance Bill of Rights
``Sec. 2770. Notice; additional definitions.
``Subpart 1--Access to Primary Care Physicians, Specialists, Out of
Network Providers, Emergency Room Services, Prescription Drugs
``Sec. 2771. Access to personnel and facilities; assuring adequate
choice of health care professionals.
``Sec. 2772. Access to specialty care.
``Sec. 2773. Access to emergency care.
``Sec. 2774. Coverage for individuals participating in approved
clinical trials.
``Sec. 2775. Continuity of care.
``Sec. 2776. Prohibition of interference with certain medical
communications.
``Sec. 2777. Access to needed prescription drugs.
``Subpart 2--Utilization Review, Grievance, Appeals, and Quality
Improvement
``Sec. 2779. Standards for utilization review activities, complaints,
and appeals.
``Sec. 2780. Quality improvement program.
``Subpart 3--Nondiscrimination
``Sec. 2784. Nondiscrimination.
``Subpart 4--Confidentiality
``Sec. 2785. Medical records and confidentiality.
``Subpart 5--Disclosures
``Sec. 2786. Health prospectus; disclosure of information.
``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor-
Patient Relationship
``Sec. 2787. Promoting good medical practice.
TITLE II--APPLICATION OF BILL OF RIGHTS UNDER VARIOUS LAWS
Sec. 201. Amendments to the Public Health Service Act.
Sec. 202. Managed care requirements under the Employee Retirement
Income Security Act of 1974.
Sec. 203. Managed care requirements under the Internal Revenue Code of
1986.
Sec. 204. Managed care requirements under medicare, medicaid, and the
Federal employees health benefits program (FEHBP).
Sec. 205. Effective dates.
TITLE I--HEALTH INSURANCE BILL OF RIGHTS
SEC. 101. HEALTH INSURANCE BILL OF RIGHTS.
Title XXVII of the Public Health Service Act is amended--
(1) by redesignating part C as part D, and
(2) by inserting after part B the following new part:
``Part C--Health Insurance Bill of Rights
``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS.
``(a) Notice.--A health insurance issuer under this part
shall comply with the notice requirement under section 711(d)
of the Employee Retirement Income Security Act of 1974 with
respect to the requirements of this part as if such section
applied to such issuer and such issuer were a group health
plan.
``(b) Additional Definitions.--For purposes of this part:
``(1) Enrollee.--The term `enrollee' means an individual
who is entitled to benefits under a group health plan or
under health insurance coverage.
``(2) Health care professional.--The term `health care
professional' means a physician or other health care
practitioner providing health care services.
``(3) Health care provider.--The term `health care
provider' means a clinic, hospital physician organization,
preferred provider organization, independent practice
association, community service provider, family planning
clinic, or other appropriately licensed provider of health
care services or supplies.
``(4) Managed care.--The term `managed care' means, with
respect to a group health plan or health insurance coverage,
such a plan or coverage that provides financial incentives
for enrollees to obtain benefits through participating health
care providers or professionals.
``(5) Nonparticipating.--The term `nonparticipating' means,
with respect to a health care provider or professional and a
group health plan or health insurance coverage, such a
provider or professional that is not a participating provider
or professional with respect to such services.
``(6) Participating.--The term `participating' means, with
respect to a health care provider or professional and a group
health plan or health insurance coverage offered by a health
insurance issuer, such a provider or professional that has
entered into an agreement or arrangement with the plan or
issuer with respect to the provision of health care services
to enrollees under the plan or coverage.
``(7) Primary care practitioner.--The term `primary care
practitioner' means, with respect to a group health plan or
health insurance coverage offered by a health insurance
issuer, a health care professional (who may be trained in
family practice, general practice, internal medicine,
obstetrics and
[[Page S12302]]
gynecology, or pediatrics and who is practicing within the
scope of practice authorized by State law) designated by the
plan or issuer to coordinate, supervise, or provide ongoing
care to enrollees.
``Subpart 1--Access to Primary Care Physicians, Specialists, Out of
Network Providers, Emergency Room Services, Prescription Drugs
``SEC. 2771. ACCESS TO PERSONNEL AND FACILITIES; ASSURING
ADEQUATE CHOICE OF HEALTH CARE PROFESSIONALS.
``A managed care group health plan (and a health insurance
issuer offering managed care group health insurance coverage)
shall comply with regulations promulgated by the Secretary
that ensure that such plans and issuers--
``(1) have a sufficient number and type of primary care
practitioners and specialists, throughout the service area to
meet the needs of enrollees and to provide meaningful choice;
``(2) maintain a mix of primary care practitioners that is
adequate to meet the needs of the enrollees' varied
characteristics, including age, gender, race, and health
status; and
``(3) include, to the extent possible, a variety of primary
care providers (including community health centers, rural
health clinics, and family planning clinics).
``SEC. 2772. ACCESS TO SPECIALTY CARE.
``A managed care group health plan (and a health insurance
issuer offering managed care group health insurance coverage)
shall comply with regulations promulgated by the Secretary
that ensure that such plans and issuers provide enrollees
with--
``(1) access to specialty care;
``(2) standing referrals to specialists;
``(3) access to nonparticipating providers;
``(4) direct access (without the need for a referral) to
health care professionals trained in obstetrics and
gynecology; and
``(5) a process that permits a health care provider trained
in obstetrics and gynecology to be designated and treated as
a primary care practitioner.
``SEC. 2773. ACCESS TO EMERGENCY CARE.
``(a) In General.--If a group health plan or health
insurance coverage provides any benefits with respect to
emergency services (as defined in subsection (b)(1)), the
plan or the health insurance issuer offering such coverage
shall--
``(1) provide for emergency services without regard to
prior authorization or the emergency care provider's
contractual relationship with the organization; and
``(2) comply with such guidelines as the Secretary of
Health and Human Services may prescribe relating to promoting
efficient and timely coordination of appropriate maintenance
and post-stabilization care of an enrollee after the enrollee
has been determined to be stable under section 1867 of the
Social Security Act.
``(b) Definition of Emergency Services.--In this
subsection--
``(1) In general.--The term `emergency services' means,
with respect to an enrollee under a plan or coverage,
inpatient and outpatient services covered under the plan or
coverage that--
``(A) are furnished by a provider that is qualified to
furnish such services under the plan or coverage, and
``(B) are needed to evaluate or stabilize an emergency
medical condition (as defined in subparagraph (B)).
``(2) Emergency medical condition based on prudent
layperson.--The term `emergency medical condition' means a
medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that a
prudent layperson, who possesses an average knowledge of
health and medicine, could reasonably expect the absence of
immediate medical attention to result in--
``(A) placing the health of the individual (or, with
respect to a pregnant woman, the health of the woman or her
unborn child) in serious jeopardy,
``(B) serious impairment to bodily functions, or
``(C) serious dysfunction of any bodily organ or part.
``SEC. 2774. COVERAGE FOR INDIVIDUALS PARTICIPATING IN
APPROVED CLINICAL TRIALS.
``(a) In General.--If a group health plan provides
benefits, or a health insurance issuer offers health
insurance coverage to, a qualified enrollee (as defined in
subsection (b)), the plan or issuer--
``(1) may not deny the enrollee participation in the
clinical trial referred to in subsection (b)(2);
``(2) subject to subsection (c), may not deny (or limit or
impose additional conditions on) the coverage of routine
patient costs for items and services furnished in connection
with participation in the trial; and
``(3) may not discriminate against the enrollee on the
basis of the enrollee's participation in such trial.
``(b) Qualified Enrollee Defined.--For purposes of
subsection (a), the term `qualified enrollee' means an
enrollee who meets the following conditions:
``(1) The enrollee has a life-threatening or serious
illness for which no standard treatment is effective.
``(2) The enrollee is eligible to participate in an
approved clinical trial with respect to treatment of such
illness.
``(3) The enrollee and the referring physician conclude
that the enrollee's participation in such trial would be
appropriate.
``(4) The enrollee's participation in the trial offers
potential for significant clinical benefit for the enrollee.
``(c) Payment.--
``(1) In general.--Under this section a plan or issuer
shall provide for payment for routine patient costs described
in subsection (a)(2) but is not required to pay for costs of
items and services that are reasonably expected (as
determined by the Secretary) to be paid for by the sponsors
of an approved clinical trial.
``(2) Payment rate.--In the case of covered items and
services provided by--
``(A) a participating provider, the payment rate shall be
at the agreed upon rate, or
``(B) a nonparticipating provider, the payment rate shall
be at the rate the plan or issuer would normally pay for
comparable services under subparagraph (A).
``(d) Approved Clinical Trial Defined.--In this section,
the term `approved clinical trial' means a clinical research
study or clinical investigation approved by the Food and Drug
Administration or approved and funded by one or more of the
following:
``(1) The National Institutes of Health.
``(2) A cooperative group or center of the National
Institutes of Health.
``(3) The Department of Veterans Affairs.
``(4) The Department of Defense.
``SEC. 2775. CONTINUITY OF CARE.
``A managed care group health plan (and a health insurance
issuer offering managed care group health insurance coverage)
shall comply with regulations promulgated by the Secretary
that ensure that such plans and issuers provide continuity of
coverage in the case of the terminated coverage where an
enrollee is undergoing a course of treatment with the
provider at the time of such termination.
``SEC. 2776. PROHIBITION OF INTERFERENCE WITH CERTAIN MEDICAL
COMMUNICATIONS.
``(a) In General.--The provisions of any contract or
agreement, or the operation of any contract or agreement,
between a group health plan or health insurance issuer
(offering health insurance coverage in connection with a
group health plan) and a health professional shall not
prohibit or restrict the health professional from engaging in
medical communications with his or her patient.
``(b) Nullification.--Any contract provision or agreement
described in subsection (a) shall be null and void.
``(c) Medical Communication Defined.--For purposes of this
section, the term `medical communication' has the meaning
given such term by the Secretary.
``SEC. 2777. ACCESS TO NEEDED PRESCRIPTION DRUGS.
``If a group health plan, or health insurance issuer offers
health insurance coverage that, provides benefits with
respect to prescription drugs but the coverage limits such
benefits to drugs included in a formulary, the plan or issuer
shall ensure in accordance with regulations of the Secretary
that--
``(1) the nature of the formulary restrictions is fully
disclosed to enrollees; and
``(2) exceptions from the formulary restriction are
provided when medically necessary or appropriate.
``Subpart 2--Utilization Review, Grievance, Appeals, and Quality
Improvement
``SEC. 2779. STANDARDS FOR UTILIZATION REVIEW ACTIVITIES,
COMPLAINTS, AND APPEALS.
``A group health plan and a health insurance issuer
offering health insurance coverage in connection with a group
health plan shall comply with standards established by the
Secretary relating to its conduct of utilization review
activities. Such standards shall include the following:
``(1) A requirement that a plan or issuer develop written
policies and criteria concerning utilization review
activities.
``(2) A requirement that a plan or issuer provide notice of
such policies and criteria and the written notice of adverse
determinations.
``(3) A restriction on the use of contingent compensation
arrangements with providers.
``(4) A requirement establishing deadlines to ensure timely
utilization review determinations.
``(5) The establishment of an adequate process for filing
complaints, and appealing decisions, concerning utilization
review determinations, including the mandatory use of an
outside review panel to make decisions on such appeals.
``(6) A requirement that a plan or issuer that utilizes
clinical practice guidelines uniformly apply review criteria
that are based on sound scientific principles and the most
recent medical evidence.
``SEC. 2780. QUALITY IMPROVEMENT PROGRAM.
``(a) In General.--A group health plan and health insurance
issuer offering health insurance coverage shall make
arrangements for an ongoing quality improvement program for
health care services it provides to enrollees. Such a program
shall meet standards established by the Secretary, including
standards relating to--
``(1) the measurement of health outcomes relevant to all
populations, including women;
``(2) evaluation of high risk services;
``(3) monitoring utilization of services;
``(4) ensuring appropriate action to improve quality of
care; and
``(5) providing for an independent external review of the
program.
[[Page S12303]]
``Subpart 3--Nondiscrimination
``SEC. 2784. NONDISCRIMINATION.
``(a) Enrollees.--A group health plan or health insurance
issuer offering health insurance coverage (whether or not a
managed care plan or coverage) may not discriminate or engage
(directly or through contractual arrangements) in any
activity, including the selection of service area, that has
the effect of discriminating against an individual on the
basis of race, culture, national origin, gender, sexual
orientation, language, socioeconomic status, age, disability,
genetic makeup, health status, payer source, or anticipated
need for healthcare services.
``(b) Providers.--Such a plan or issuer may not
discriminate in the selection of members of the health
provider or provider network (and in establishing the terms
and conditions for membership in the network) of the plan or
coverage based on any of the factors described in subsection
(a).
``(c) Services.--Such a plan or issuer may not exclude
coverage (including procedures and drugs) if the effect is to
discriminate in violation of subsection (a) or (b).
``Subpart 4--Confidentiality
``SEC. 2785. MEDICAL RECORDS AND CONFIDENTIALITY.
``A managed care group health plan (and a health insurance
issuer offering managed care group health insurance) shall--
``(1) establish written policies and procedures for the
handling of medical records and enrollee communications to
ensure enrollee confidentiality;
``(2) ensure the confidentiality of specified enrollee
information, including, prior medical history, medical record
information and claims information, except where disclosure
of this information is required by law; and
``(3) not release any individual patient record
information, unless such a release is authorized in writing
by the enrollee or otherwise required be law.
``Subpart 5--Disclosures
``SEC. 2786. HEALTH PROSPECTUS; DISCLOSURE OF INFORMATION.
``(a) Disclosure.--Each group health plan, and each health
insurance issuer providing health insurance coverage, shall
provide to each enrollee at the time of enrollment and on an
annual basis, and shall make available to each prospective
enrollee upon request--
``(1) a prospectus that relates to the plan or coverage
offered and that meets the requirements of subsection (b);
and
``(2) additional information described in subsection (c).
``(b) Prospectus.--
``(1) In general.--Each prospectus under this subsection
for a plan or coverage--
``(A) shall contain the information described in paragraphs
(2) through (4) concerning the plan or coverage,
``(B) shall contain such additional information as the
Secretary deems appropriate, and
``(C) shall be no longer than 3 pages in length and in a
format specified by the Secretary, for purposes of comparison
by prospective enrollees.
``(2) Qualitative information.--The information described
in this paragraph is a summary of the quality assessment data
on the plan or coverage. The data shall--
``(A) be the similar to the types of data as are collected
for managed care plans under title XVIII of the Social
Security Act, as determined by the Secretary and taking into
account differences between the populations covered under
such title and the populations covered under this title;
``(B) be collected by independent, auditing agencies;
``(C) include--
``(i) a description of the types of methodologies
(including capitation, financial incentive or bonuses, fee-
for-service, salary, and withholds) used by the plan or
issuer to reimburse physicians, including the proportions of
physicians who have each of these types of arrangements; and
``(ii) cost-sharing requirements for enrollees.
The information under subparagraph (C) shall include, upon
request, information on the reimbursement methodology used by
the plan or issuer or medical groups for individual
physicians, but do not require the disclosure of specific
reimbursement rates.
``(3) Quantitative information.--The information described
in this paragraph is measures of performance of the plan or
issuer (in relation to coverage offered) with respect to each
of the following and such other salient data as the Secretary
may specify:
``(A) The ratio of physicians to enrollees, including the
ratio of physicians who are obstetrician/gynecologists to
adult, female enrollees.
``(B) The ratio of specialists to enrollees.
``(C) The incentive structure used for payment of primary
care physicians and specialists.
``(D) Patient outcomes for procedures, including procedures
specific to female enrollees.
``(E) The number of grievances filed under the plan or
coverage.
``(F) The number of requests for procedures for which
utilization review board review or approval is required and
the number (and percentage) of such requests that are denied.
``(G) The number of appeals filed from denial of such
requests and the number (and percentage) of such appeals that
are approved, such numbers and percentages broken down by
gender of the enrollee involved.
``(H) Disenrollment data.
``(4) Description of benefits.--The information described
in this paragraph is a description of the benefits provided
under the plan or coverage, as well as explicit exclusions,
including a description of the following:
``(A) Coverage policy with respect to coverage for female-
specific benefits, including screening mammography, hormone
replacement therapy, bone density testing, osteoporosis
screening, maternity care, and reconstructive surgery
following a mastectomy.
``(B) The costs of copayments for treatments, including any
exceptions.
``(c) Additional Information.--The additional information
described in this subsection is information about each of the
following:
``(1) The plan's or issuer's structure and provider
network, including the names and credentials of physicians in
the network.
``(2) Coverage provided and excluded, including out-of-area
coverage.
``(3) Procedures for utilization management.
``(4) Procedures for determining coverage for
investigational or experimental treatments as well as
definitions for coverage terms.
``(5) Any restrictive formularies or prior approval
requirements for obtaining prescription drugs, including,
upon request, information on whether or not specific drugs
are covered.
``(6) Use of voluntary or mandatory arbitration.
``(7) Procedures for receiving emergency care and out-of-
network services when those services are not available in the
network and information on the coverage of emergency
services, including--
``(A) the appropriate use of emergency services, including
use of the 911 telephone system or its local equivalent in
emergency situations and an explanation of what constitutes
an emergency situation;
``(B) the process and procedures for obtaining emergency
services; and
``(C) the locations of (i) emergency departments, and (ii)
other settings, in which physicians and hospitals provide
emergency services and post-stabilization care.
``(8) How to contact agencies that regulate the plan or
issuer.
``(9) How to contact consumer assistance agencies, such as
ombudsmen programs.
``(10) How to obtain covered services.
``(11) How to receive preventive health services and health
education.
``(12) How to select providers and obtain referrals.
``(13) How to appeal health plan decisions and file
grievances.
``(d) State Authority to Require Additional Information.--
``(1) In general.--Subject to paragraph (2), this section
shall not be construed as preventing a State from requiring
health insurance issuers, in relation to their offering of
health insurance coverage, to disclose separately information
(including comparative ratings of health insurance coverage)
in addition to the information required to be disclosed under
this section.
``(2) Continued preemption with respect to group health
plans.--Nothing in this part shall be construed to affect or
modify the provisions of section 514 with respect to group
health plans.
``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor-
Patient Relationship
``SEC. 2787. PROMOTING GOOD MEDICAL PRACTICE.
``(a) Prohibiting Arbitrary Limitations or Conditions for
the Provision of Services.--A group health plan and a health
insurance issuer, in connection with the provision of health
insurance coverage, may not impose limits on the manner in
which particular services are delivered if the services are
medically necessary or appropriate to the extent that such
procedure or treatment is otherwise a covered benefit.
``(b) Construction.--Subsection (a) shall not be construed
as requiring coverage of particular services the coverage of
which is otherwise not covered under the terms of the
coverage.''.
TITLE II--APPLICATION OF BILL OF RIGHTS UNDER VARIOUS LAWS
SEC. 201. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) Application to Group Health Insurance Coverage.--
Subpart 2 of part A of title XXVII of the Public Health
Service Act is amended by adding at the end the following new
section:
``SEC. 2706. MANAGED CARE REQUIREMENTS.
``Each health insurance issuer shall comply with the
applicable requirements under part C with respect to group
health insurance coverage it offers.''.
(b) Application to Individual Health Insurance Coverage.--
Part B of title XXVII of the Public Health Service Act is
amended by inserting after section 2751 the following new
section:
``SEC. 2752. MANAGED CARE REQUIREMENTS.
``Each health insurance issuer shall comply with the
applicable requirements under part C with respect to
individual health insurance coverage it offers, in the same
manner as such requirements apply to group health insurance
coverage.''.
(c) Modification of Preemption Standards.--
(1) Group health insurance coverage.--Section 2723 of such
Act (42 U.S.C. 300gg-23) is amended--
[[Page S12304]]
(A) in subsection (a)(1), by striking ``subsection (b)''
and inserting ``subsections (b) and (c)'';
(B) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(C) by inserting after subsection (b) the following new
subsection:
``(c) Special Rules in Case of Managed Care Requirements.--
Subject to subsection (a)(2), the provisions of section 2706
and part C, and part D insofar as it applies to section 2706
or part C, shall not prevent a State from establishing
requirements relating to the subject matter of such
provisions so long as such requirements are at least as
stringent on health insurance issuers as the requirements
imposed under such provisions.''.
(2) Individual health insurance coverage.--Section 2762 of
such Act (42 U.S.C. 300gg-62), as added by section
605(b)(3)(B) of Public Law 104-204, is amended--
(A) in subsection (a), by striking ``subsection (b),
nothing in this part'' and inserting ``subsections (b) and
(c)'', and
(B) by adding at the end the following new subsection:
``(c) Special Rules in Case of Managed Care Requirements.--
Subject to subsection (b), the provisions of section 2752 and
part C, and part D insofar as it applies to section 2752 or
part C, shall not prevent a State from establishing
requirements relating to the subject matter of such
provisions so long as such requirements are at least as
stringent on health insurance issuers as the requirements
imposed under such section.''.
(d) Additional Conforming Amendments.--
(1) Section 2723(a)(1) of such Act (42 U.S.C. 300gg-
23(a)(1)) is amended by striking ``part C'' and inserting
``parts C and D''.
(2) Section 2762(b)(1) of such Act (42 U.S.C. 300gg-
62(b)(1)) is amended by striking ``part C'' and inserting
``part D''.
(e) Assuring Coordination.--Section 104(1) of the Health
Insurance Portability and Accountability Act of 1996 (Public
Law 104-191) is amended by striking ``under this subtitle
(and the amendments made by this subtitle and section 401)''
and inserting ``title XXVII of the Public Health Service Act,
under part 7 of subtitle B of title I of the Employee
Retirement Income Security Act of 1974, and chapter 100 of
the Internal Revenue Code of 1986''.
SEC. 202. MANAGED CARE REQUIREMENTS UNDER THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974.
(a) In General.--Subpart B of part 7 of subtitle B of title
I of the Employee Retirement Income Security Act of 1974 is
amended by adding at the end the following new section:
``SEC. 713. MANAGED CARE REQUIREMENTS.
``(a) In General.--Subject to subsection (b), a group
health plan (and a health insurance issuer offering group
health insurance coverage in connection with such a plan)
shall comply with the applicable requirements of part C of
title XXVII of the Public Health Service Act.
``(b) References in Application.--In applying subsection
(a) under this part, any reference in such part C--
``(1) to a health insurance issuer and health insurance
coverage offered by such an issuer is deemed to include a
reference to a group health plan and coverage under such
plan, respectively;
``(2) to the Secretary is deemed a reference to the
Secretary of Labor;
``(3) to an applicable State authority is deemed a
reference to the Secretary of Labor; and
``(4) to an enrollee with respect to health insurance
coverage is deemed to include a reference to a participant or
beneficiary with respect to a group health plan.''.
(b) Modification of Preemption Standards.--Section 731 of
such Act (42 U.S.C. 1191) is amended--
(1) in subsection (a)(1), by striking ``subsection (b)''
and inserting ``subsections (b) and (c)'';
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (b) the following new
subsection:
``(c) Special Rules in Case of Managed Care Requirements.--
Subject to subsection (a)(2), the provisions of section 713
and part C of title XXVII of the Public Health Service Act,
and subpart C insofar as it applies to section 713 or such
part, shall not be construed to preempt any State law, or the
enactment or implementation of such a State law, that
provides protections for individuals that are equivalent to
or stricter than the protections provided under such
provisions.''.
(c) Conforming Amendments.--(1) Section 732(a) of such Act
(29 U.S.C. 1185(a)) is amended by striking ``section 711''
and inserting ``sections 711 and 713''.
(2) The table of contents in section 1 of such Act is
amended by inserting after the item relating to section 712
the following new item:
``Sec. 713. Managed care requirements.''.
SEC. 203. MANAGED CARE REQUIREMENTS UNDER THE INTERNAL
REVENUE CODE OF 1986.
(a) In General.--Subchapter B of part B of part 7 of
subtitle B of title I of the Employee Retirement Income
Security Act of 1974 is amended by adding at the end the
following new section:
``SEC. 9813. MANAGED CARE REQUIREMENTS.
``(a) In General.--Subject to subsection (b), a group
health plan shall comply with the applicable requirements of
part C of title XXVII of the Public Health Service Act.
``(b) References in Application.--In applying subsection
(a) under this subchapter, any reference in such part C--
``(1) to the Secretary is deemed a reference to the
Secretary of the Treasury; and
``(2) to an applicable State authority is deemed a
reference to the Secretary.''.
(b) Clerical Amendment.--The table of sections in
subchapter B of chapter 100 of such Code is amended by
inserting after the item relating to section 9812 the
following new item:
``Sec. 9813. Managed care requirements.''.
SEC. 204. MANAGED CARE REQUIREMENTS UNDER MEDICARE, MEDICAID,
AND THE FEDERAL EMPLOYEES HEALTH BENEFITS
PROGRAM (FEHBP).
(a) Medicare.--Section 1852 of the Social Security Act (42
U.S.C. 1395w-22), as inserted by section 4001 of the Balanced
Budget Act of 1997 (Public Law 101-33), is amended by adding
at the end the following new subsection:
``(l) Managed Care Requirements.--Each Medicare+Choice
organization that offers a Medicare+Choice plan described in
section 1851(a)(1)(A) shall comply with the applicable
requirements of part C of title XXVII of the Public Health
Service Act in the same manner as such requirements apply
with respect to health insurance coverage offered by a health
insurance issuer, except to the extent such requirements are
less protective of enrollees than the requirements
established under this part.''.
(b) Medicaid.--Section 1932(b)(8) of the Social Security
Act, as added by section 4704(a) of the Balanced Budget Act
of 1997, is amended--
(1) by striking ``and mental health'' and inserting ``,
mental health, and managed care'',
(2) by inserting ``and of part C'' after ``of part A'', and
(3) by inserting before the period at the end the
following: ``, except to the extent such requirements are
less protective of enrollees than the requirements
established under this title''.
(c) Federal Employees' Health Benefits Program (FEHBP).--
Chapter 89 of title 5, United States Code, is amended--
(1) by inserting after the item relating to section 8905a
the following new section:
``Sec. 8905b. Application of managed care requirements
``Each health benefit plan offered under this chapter shall
comply with the applicable requirements of part C of title
XXVII of the Public Health Service Act in the same manner as
such requirements apply with respect to health insurance
coverage offered by a health insurance issuer, except to the
extent such requirements are less protective of enrollees
than the requirements established under this chapter.''; and
(2) in the table of sections, by inserting the following
item after the item relating to section 8905a:
``8905b. Application of managed care requirements.''.
SEC. 205. EFFECTIVE DATES.
(a) General Effective Date for Group Health Plans.--
(1) In general.--Subject to paragraph (2), the amendments
made by section 101, subsections (a), (c)(1), and (d) of
section 201, and sections 203 and 204 shall apply with
respect to group health insurance coverage for group health
plan years beginning on or after July 1, 1998 (in this
section referred to as the ``general effective date'') and
also shall apply to portions of plan years occurring on and
after January 1, 1999.
(2) Treatment of group health plans maintained pursuant to
certain collective bargaining agreements.--In the case of a
group health plan, or group health insurance coverage
provided pursuant to a group health plan, maintained pursuant
to 1 or more collective bargaining agreements between
employee representatives and 1 or more employers ratified
before the date of enactment of this Act, the amendments
described in paragraph (1) shall not apply to plan years
beginning before the later of--
(A) the date on which the last collective bargaining
agreements relating to the plan terminates (determined
without regard to any extension thereof agreed to after the
date of enactment of this Act), or
(B) the general effective date.
For purposes of subparagraph (A), any plan amendment made
pursuant to a collective bargaining agreement relating to the
plan which amends the plan solely to conform to any
requirement added by such amendments shall not be treated as
a termination of such collective bargaining agreement.
(b) General Effective Date for Health Insurance Coverage.--
The amendments made by section 101 and subsections (b),
(c)(2), and (d) of section 201 shall apply with respect to
individual health insurance coverage offered, sold, issued,
renewed, in effect, or operated in the individual market on
or after the general effective date.
(c) Effective Date for Coordination.--The amendment made by
section 201(e) shall take effect on the date of the enactment
of this Act.
(d) Federal Programs.--The amendments made by section 204
shall take effect on January 1, 1999.
______
By Mr. AKAKA:
S. 1500. A bill to amend the Hawaii Tropical Forest Recovery Act to
establish voluntary standards for certifying forest products
cultivated, harvested,
[[Page S12305]]
and processed in tropical environments in Hawaii and to grant a
certification for Hawaii tropical forest products that meet the
voluntary standards, and for other purposes; to the Committee on
Agriculture, Nutrition, and Forestry.
the hawaii tropical forest products certification act
Mr. AKAKA. Madam President, today I am introducing legislation to
establish voluntary standards for certifying tropical forest products
grown in Hawaii. Senator Inouye has joined me in cosponsoring this
measure.
Agriculture has long been the backbone of the economy of rural
Hawaii. Recently, however, the decline of sugarcane has caused an
upheaval for many of our rural communities. In the past 10 years, 21
sugarcane plantations have gone out of business and the State has lost
115,000 acres of sugarcane production.
For more than 160 years, sugar provided jobs and a special way of
life for communities throughout the State. Cane is still king on Maui
and parts of Kauai, but elsewhere it has disappeared from the
agricultural map. Our great challenge is to develop new opportunities
that keep Hawaii green and economically productive for at least as
long--and hopefully longer--than our relationship with sugar.
For many landowners, the future of rural Hawaii is in forestry. But
what will forestry in Hawaii look like 10, 20, or 50 years from now?
Many people have strong feelings about how to answer this question.
Sustainability is the emerging idea in forest development. This means
practicing stewardship that integrates the growth, nurturing, and
harvesting of trees with the conservation of soil, air, water, and
wildlife. Sustainable forests are managed to serve the needs of the
present generation without compromising the needs of future
generations.
In Hawaii, the stewardship ethic is very strong, especially within
the forestry community. Hawaii's tropical forests are home to some of
the richest biological diversity on the planet, and our forest managers
understand the importance of preserving our living heritage. But in
many countries, stewardship and responsible forest development is weak
or nonexistent.
Around the globe, forests are disappearing at an unprecedented rate,
and nowhere is this problem more severe than in the tropics. More than
half of the world's tropical rain forests have been consumed, degraded,
or destroyed in this century.
Because of the attention being given to forest degradation, consumers
are asking questions about the source of the wood demand, and foresters
to supply, wood products from well-managed forests.
As the demand for sustainable forest products has increased, criteria
for sustainable forestry have been formalized. The result is a world-
wide movement to verify that sustainable forestry claims are genuine.
This process is known as certification.
In recent years, the Hawaii forestry industry has closely monitored
the certification movement. The bill I am introducing today will prompt
an important dialogue on certification. I am inviting all stakeholders
in this issue--Hawaii's forest industry, landowners, conservation
experts, and affected communities--to engage in a free and open
exchange about forest certification.
What are the benefits of certification? For consumers, certification
is a way of ensuring that forest products they purchase do not
contribute to forest degradation. Independent verification of forestry
practices is the Good Housekeeping Seal of Approval telling them that
sustainable standards are being met.
To landowners, certification is a way of ensuring that their careful
management is rewarded in the marketplace. A certification label may
result in a premium for your products, better market access, and in
some cases, more secure supply agreements. The best way for the Hawaii
forest industry to increase the value of their resource may be to sell
certified tropical wood products into a world market that recognizes
the abuse that tropical forests have suffered--and is willing to pay
more for a tropical product that has received proper certification.
Just how widespread is certification today? Forest certification is
big business. Certification is practiced in 25 countries. European and
North American buyers groups are committed to wood products
certification. Eleven nations, including Germany and France, are
represented in the European buyers group.
Certification is voluntary, not mandatory, and my bill reflects this
fact. Over time, however, landowners who do not employ sustainable
practices and do not seek certification may find it more difficult to
market their timber.
My bill will establish standards certifying that Hawaii forest
products are cultivated, harvested, and processed in a sustainable
manner. Although forestry certification standards are high,
certification will not require perfection. Like agriculture, forestry
is subject to the forces of nature, and nature is often unpredictable.
For certification to become successful in Hawaii, I believe that a
bottom up rather than top down approach to consensus-building makes the
most sense. With this in mind, in January, 1998, I will convene a
meeting in Hawaii to further the dialog about forest certification and
the bill I introduced today.
Certification can take root in Hawaii without action by Congress.
However, my bill can jump start the dialog and provide a format for
discussion. I will be the first one to cheer if certification becomes a
reality with, or without, legislation by Congress.
______
By Mr. JEFFORDS:
S. 1501. A bill to amend the Employee Retirement Income Security Act
of 1974 to improve protection for workers in multiemployer pension
plans; to the Committee on Labor and Human Resources.
THE WORKERS' PENSION PROTECTION ACT OF 1997
Mr. JEFFORDS. Mr. President, I am today introducing the Workers'
Pension Protection Act. This legislation will level the playing field
for millions of American workers who currently participate in defined
benefit multiemployer pension plans.
As I am certain many of my colleagues are aware, there is a
difference between multiemployer and single-employer pension plans.
Multiemployer plans are maintained by a specific union, and supported
by the various employers that union has organized, whereas single-
employer plans are established by one company for its own employees.
Thus, the Central States Teamsters pension fund covers individuals who
work for employers the Teamsters have organized in the Midwestern
United States. By contrast, General Electric has its a single-employer
plan, or plans, that it established for its own employees.
This bill is only concerned with multiemployer pension plans. It
protects workers' benefits by making sure that multiemployer plans are
funded so that benefits promised today will be available when workers
retire in the future. Many of this country's multiemployer pension
plans are underfunded by billions of dollars. It is true that a plan
can be underfunded by billions of dollars but the relationship of
assets to liabilities can still be relatively high. However, we are
looking at plans that are not only underfunded by large amounts, but
also where liabilities seriously outstrip assets.
This legislation both increases funding and reporting requirements on
multiemployer plans, so that we know when plans are becoming riskier,
and improves protections and benefits. American workers rely upon their
pensions to support them through their twilight years. Unfortunately
pension plans are not infallible and too often, the American workers
discover that their plan is bankrupt and that all pension payments are
now in the hands of the Pension Benefit Guaranty Corporation [PBGC],
the Federal agency charged with insuring defined benefit pension plans.
What these workers may not realize is that under a single-employer
plan, up to $33,132 per year is protected by the PBGC's pension
insurance, but under the multiemployer pension insurance system, they
can only receive $5,850. My legislation will not completely eliminate
this unfairness, but it will slightly more than double the amount
payable by the PBGC, by increasing benefits from $5,850 to $12,780.
This change in the guaranty benefit amount would be the first increase
to those benefits since the multiemployer program was enacted in 1980.
[[Page S12306]]
Next, this bill will require plans to fund their current pension
promises before making new ones. Pension plan trustees would be unable
to grant benefit increases if a plan is less than 95 percent funded.
This provision is needed to keep underfunded plans from going deeper in
the red if collective bargaining ignores the underfunding problem.
Third, this legislation will require multiemployer pension plans to
use single, identified interest rate and mortality table assumptions in
all calculations. As in the single-employer pension plan reform
legislation of 1994, the interest rates and mortality tables must be
standardized and must conform to the most recent data available. With
this change, plans may not use one set of numbers when reporting the
level of funding in their plan to the PBGC, and another set of numbers
when determining liability associated with a withdrawal from the plan.
That amounts to manipulating interest rates to game the system. We
require single-employer pension plans to use a specific interest rate
and a mortality table. I believe it should apply to multiemployer
plans, as well.
Fourth, the bill will require that plan trustees notify participants,
annually and in plain English, of how well or poorly funded their plans
are. Once and for all, multiemployer pension plan participants and
beneficiaries will have a chance to learn how secure--or insecure--
their retirement benefits are. It is one thing to tell a plan
participant what his or her expected benefit will be upon retirement.
It is quite another to let a participant know that their pension plan
could have 45 percent more in liabilities than it has in assets, or
that it may have accumulated $5 billion in underfunding.
The PBGC has told us that notification to participants of plan
funding has worked well for single-employer plans. Since it has been a
success for the single-employer insurance system, we should extend the
same protections to participants in multiemployer plans. With a better
understanding of the worth of their benefits, workers can make informed
decisions about their retirement needs. I think such notification is a
vitally important participant protection for multiemployer pension plan
participants.
Finally, the bill will increase premiums imposed by the PBGC upon
sponsors of multiemployer pension plans. Currently, premiums are $2.60
per participant but they have not been increased since the
multiemployer guaranty program was enacted in 1980. By contrast, the
single employer premium has been increased by Congress eight times
since ERISA was passed in 1974. The minimum premium for fully funded
single-employer plans is now $19 per participant, but some underfunded
plans are charged hundreds of dollars per participant for PBGC
premiums. If we are going to raise multiemployer benefits, it is also
time to raise multiemployer premiums. Over a 3-year period, my bill
will double premiums, increasing them to $5.20 per participant.
Mr. President, I realize that it is the end of the session. I am
introducing this measure now in order to permit review and comment by
interested parties in advance of hearings I will be holding on this
issue next year. This bill takes modest, but overdue steps to protect
participants of multiemployer pension plans. I hope that those
concerned with the safety and security of, and equity in, multiemployer
pension plans will not hesitate to step forward to be heard. There are
slightly more than 1,800 multiemployer pension plans in this Nation
providing benefits to approximately 8.7 million individuals. This bill
protects those workers and retirees--and they need and deserve our
oversight. I encourage my colleagues in the Senate to join me in
sponsoring this important piece of legislation.
______
By Mr. WELLSTONE:
S. 1503. A bill to protect the voting rights of homeless citizens; to
the Committee on Rules and Administration.
the voting rights of homeless citizens act of 1997
Mr. WELLSTONE. Mr. President, I rise today to introduce the Voting
Rights of Homeless Citizens Act of 1997. I am proud to stand alongside
the distinguished House sponsor of this bill, Representative John
Lewis.
Mr. President, over the course of the last century, Congress has
systematically removed the major obstacles that once prevented many of
our citizens from voting. Not too long ago, only land-owning white men
had the privilege of participating in our democracy. Women and
minorities were prohibited from casting the ballot. More recently,
people had to pay a poll tax or take a test in order to qualify to
vote.
Before the civil rights movement, there were areas in the southern
part of this country where the vast majority of the population was
black, but there wasn't a single registered black voter. In 1964, three
young men gave their lives while working to register people to vote in
rural Mississippi. Many people over the course of our history have
sacrificed their lives in order to expand voting rights for all
Americans.
In 1964 President Lyndon Johnson proposed that we ``eliminate every
remaining obstacle to the right and opportunity to vote.'' Eight months
later, this Congress passed the Voting Rights Act of 1965, making it
possible for millions of Americans to participate in the political
process for the first time.
Our Nation has made even more progress since then. The motor voter
law made voter registration more accessible to working people. But our
historic strides have not taken us far enough. The time is long overdue
to ensure that every American has the opportunity to exercise this
fundamental right. It is reprehensible that there are still American
adults who are unable to partake of the most important right of
citizenry.
The purpose of this legislation is to give the power to vote to
homeless citizens of this country. The bill would remove the legal and
administrative barriers that inhibit them from exercising this right.
No one should be excluded from registering to vote simply because they
do not have an address. But in many States, the homeless are left out
and left behind. This is wrong. This is against the grain of this great
nation.
I ask my colleagues to join me in opening the political process to
every American--even those without a home. I urge my colleagues to join
me by cosponsoring and supporting passage of the Voting Rights of
Homeless Citizens Act of 1997.
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.1503
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 `Voting Rights of Homeless
Citizens Act of 1997'.
SEC. 2. VOTING RIGHTS OF HOMELESS CITIZENS.
No voting qualification or prerequisite to voting, or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision to deny or abridge the
right of any citizen of the United States to vote because
that citizen resides at or in a nontraditional abode.
SEC. 3. ENFORCEMENT.
The Attorney General may commence in the name of the United
States a civil action (including an action against a State or
political subdivision) or an aggrieved citizen may institute
a proceeding under this Act, for injunctive relief against a
violation of section 2.
SEC. 4. RELATIONSHIP TO VOTING RIGHTS ACT OF 1965.
This Act shall not be construed to impair any right
guaranteed by the Voting Rights Act of 1965 (42 U.S.C. 1973
et seq.).
SEC. 5. DEFINITIONS.
As used in this Act, the term `nontraditional abode'
includes--
(1) a supervised publicly or privately operated shelter
designed to provide temporary living accommodations
(including welfare hotels, congregate shelters, and
transitional housing for the mentally ill); and
(2) a public or private place not designated for, or
ordinarily used as, regular sleeping accommodation for human
beings.
SEC. 6. EFFECTIVE DATE.
This Act applies with respect to elections taking place
after December 31, 1997.
______
By Mr. GRAHAM (for himself, Mr. Mack, Mr. Kennedy, Mr. Abraham,
and Ms. Moseley-Braun):
S. 1504. A bill to adjust the immigration status of certain Haitian
nationals who where provided refuge in the United States; to the
Committee on the Judiciary.
the haitian refugee immigration fairness act of 1997
Mr. GRAHAM. Mr. President, I commend my colleagues on reaching an
[[Page S12307]]
agreement on what has been a very long and difficult negotiation
relative to Central American and other immigrants. I note that we have
in the Chamber at this time two of the Members of the House of
Representatives who have been most active in achieving this result that
is close to being reality, Congresswoman Ileana Ros-Lehtinen and
Congressman Lincoln Diaz-Balart. I extend my special thanks to them and
congratulations on the success of their hard work.
Many months ago, these two fine Members of the House of
Representatives, and others, including Senator Mack, Senator Spencer
Abraham, and Senator Kennedy, became interested in legislation that
would provide justice and fairness for individuals who, due to duress,
extreme hardship and political strife in their native countries, had
been welcomed into our Nation by President Reagan and President Bush. I
was proud to be part of this effort.
The agreement reached with our distinguished colleagues covers not
only Central Americans, but also other groups who have struggled
against oppression. While I strongly believe that this agreement is
positive and is in the American tradition of fair play, it is an
incomplete resolution. It is incomplete because there is another
relatively small group of persons who have the same characteristics as
those who are being recognized for whom legislation is being passed
today as part of the District of Columbia appropriations bill. That
group is Haitians.
There are 11,000 Haitians who, because of their credible asylum
claims, were flown to the United States by our Government during the
early 1990's. These were men, women and children, Mr. President, who
had left Haiti because of the oppressive circumstances there.
Mr. President, this group of approximately 11,000 Haitians, who
because of credible asylum claims were allowed to enter the United
States in the early 1990s, were part of a much larger group of over
40,000 Haitians who had been detained at sea and temporarily were in a
refuge status at our Guantanamo naval station.
These were the 11,000 of that larger group who were found, based on
screenings administered by the Immigration Naturalization Service, to
have a credible claim of persecution should they be returned to Haiti.
The balance of those who could not meet that standard were in fact
repatriated to Haiti.
There is a second group of similar size and significant overlap in
terms of the individuals who are part of the asylum backlog. These are
those who have had pending asylum cases since 1995.
Mr. President, I am pleased to be joined in introducing this
legislation today which is entitled the Haitian Refugee Immigration
Fairness Act of 1997, with my colleague Senator Mack, Senator Kennedy,
Senator Abraham, and Senator Carol Moseley-Braun.
Mr. President, fairness demands that we include this group in our
legislation. First, this is a relatively small group. The two groups
together, the Guantanamo asylees and those who have a pending asylum
case combined, represent approximately 15,000 to 16,000 individuals.
This, in relationship to those who we are providing essentially the
same status to today, is a relatively small number.
Second, this group has been extensively screened. As I indicated, the
Guantanamo asylees represent approximately one out of four of those
persons who were, at one time, at the Guantanamo Naval Base and who
were found to have a credible legitimate fear of persecution in Haiti.
I might say, Mr. President, as one who visited Haiti several times
during this very tense period in the late 1980s and early 1990s, the
level of human rights abuses, the savagery, the violence were extreme.
And these persons who established if they had been returned to Haiti at
that time, that they would have been significantly at risk, they were
at risk in a very legitimately violent and hostile environment.
Deportations of this group, Mr. President, have already begun. Asylum
officers have begun to send back members of the Haitian community to
Haiti. And so there is a sense of urgency of dealing with this
legislation before any additional injustices are committed.
And finally, the Guantanamo Haitians have established families in the
United States. Many have had children born here who are United States
citizens. They have opened businesses. They have built homes. They have
strengthened our community here in the United States. They contribute
to the diversity, the racial and social harmony, the positive traits of
our increasingly multicultural Nation.
Mr. President, I would hope someday to have the opportunity to invite
you to join me at Miami Dade Community College, which happens to be the
largest community college in the Nation based on enrollment. It is
inspiring to go to that campus, one of their several campuses, and see
the number of young Haitian men and women who are living the American
dream of hard work and education and advancing themselves so that they
can better serve the interests of their families and our Nation.
This is a quality group of people who have made and will make
significant contributions to our Nation.
They are making a contribution in many ways today. As an example, we
have in Haiti a large number of Americans of Haitian heritage who are
currently serving as mentors to the newly established police force in
Haiti. They are helping to make an organization which did not exist a
few years ago because there was no police force, all police activities
were done through the military and often done in a very aggressive
manner.
We are attempting to build a new institution to provide for security
in Haiti. A key element of that are the large numbers of Americans of
Haitian background who are assisting in that important effort within
their former country.
That is just one dramatic example of the contributions which this
community is making to their new home in America.
Mr. President, I ask my colleagues today to continue the fight for
justice and fairness. We have taken a significant step in that effort
tonight with the passage of the District of Columbia appropriations
bill, which seems to be an odd place for such an important immigration
bill to be lodged, but it is placed there.
This legislation will continue that effort by applying a similar
standard of fair treatment to this important population of Haitians
within our Nation.
I send to the desk the legislation and ask for its referral.
The PRESIDING OFFICER. It will be received and appropriately
referred.
Mr. GRAHAM. 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. 1504
Be it enacted by the Senate and the House of
Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Haitian Refugee Immigration
Fairness Act of 1997''.
SEC. 2. ADJUSTMENT OF STATUS OF CERTAIN HAITIAN NATIONALS.
(a) Adjustment of Status.--
(1) In general.--Notwithstanding section 245(c) of the
Immigration and Nationality Act, the status of any alien
described in subsection (b) shall be adjusted by the Attorney
General to that of an alien lawfully admitted for permanent
residence, if the alien--
(A) applies for such adjustment before April 1, 2000; and
(B) is otherwise eligible to receive an immigrant visa and
is otherwise admissible to the United States for permanent
residence, except in determining such admissibility the
grounds for inadmissibility specified in paragraphs (4), (5),
(6)(A), and (7)(A) of section 212(a) of the Immigration and
Nationality Act shall not apply.
(2) Relationship of application to certain orders.--An
alien present in the United States who has been ordered
excluded, deported, removed, or ordered to depart voluntarily
from the United States under any provision of the Immigration
and Nationality Act may, notwithstanding such order, apply
for adjustment of status under paragraph (1). Such an alien
may not be required, as a condition on submitting or granting
such application, to file a motion to reopen, reconsider, or
vacate such order. If the Attorney General grants the
application, the Attorney General shall cancel the order. If
the Attorney General renders a final administrative decision
to deny the application, the order shall be effective and
enforceable to the same extent as if the application had not
been made.
(b) Aliens Eligible for Adjustment of Status.--The benefits
provided by subsection (a) shall apply to any alien who is a
national of Haiti--
(1) who filed for asylum before December 31, 1995, or was
paroled into the United
[[Page S12308]]
States prior to December 31, 1995, after having been
identified as having a credible fear of persecution or
paroled for emergent reasons or reasons deemed strictly in
the public interest, and
(2) has been physically present in the United States for at
least 1 year and is physically present in the United States
on the date the application for such adjustment is filed,
except an alien shall not be considered to have failed to
maintain continuous physical presence by reason of an
absence, or absences, from the United States for any periods
in the aggregate not exceeding 180 days.
(c) Stay of Removal.--
(1) In general.--The Attorney General shall provide by
regulation for an alien subject to a final order of
deportation or removal or exclusion to seek a stay of such
order based on the filing of an application under subsection
(a).
(2) During certain proceedings.--Notwithstanding any
provision of the Immigration and Nationality Act, the
Attorney General shall not order any alien to be removed from
the United States, if the alien is in exclusion, deportation,
or removal proceedings under any provision of such Act and
raises as a defense to such an order the eligibility of the
alien to apply for adjustment of status under subsection (a),
except where the Attorney General has rendered a final
administrative determination to deny the application.
(3) Work authorization.--The Attorney General may authorize
an alien who has applied for adjustment of status under
subsection (a) to engage in employment in the United States
during the pendency of such application and may provide the
alien with an ``employment authorized'' endorsement or other
appropriate document signifying authorization of employment,
except that if such application is pending for a period
exceeding 180 days, and has not been denied, the Attorney
General shall authorize such employment.
(d) Adjustment of Status for Spouses and Children.--
(1) In general.--Notwithstanding section 245(c) of the
Immigration and Nationality Act, the status of an alien shall
be adjusted by the Attorney General to that of an alien
lawfully admitted for permanent residence, if--
(A) the alien is a national of Haiti;
(B) the alien is the spouse, child, or unmarried son or
daughter, of an alien whose status is adjusted to that of an
alien lawfully admitted for permanent residence under
subsection (a), except that in the case of such an unmarried
son or daughter, the son or daughter shall be required to
establish that they have been physically present in the
United States for at least 1 year and is physically present
in the United States on the date the application for such
adjustment is filed.
(C) the alien applies for such adjustment and is physically
present in the United States on the date the application is
filed; and
(D) the alien is otherwise eligible to receive an
immigration visa and is otherwise admissible to the United
States for permanent residence, except in determining such
admissibility the grounds for exclusion specified in
paragraphs (4), (5), (6)(A), and (7)(A) of section 212(a) of
the Immigration and Nationality Act shall not apply.
(2) Proof of continuous presence.--For purposes of
establishing the period of continuous physical presence
referred to in paragraph (1)(B), an alien shall not be
considered to have failed to maintain continuous physical
presence by reason of an absence, or absences, from the
United States for any periods in aggregate not exceeding 180
days.
(e) Availability of Administrative Review.--The Attorney
General shall provide to applicants for adjustment of status
under subsection (a) the same right to, and procedures for,
administrative review as are provided to--
(1) applicants for adjustment of status under section 245
of the Immigration and Nationality Act; or
(2) aliens subject to removal proceedings under section 240
of such Act.
(f) Limitation on Judicial Review.--A determination by the
Attorney General as to whether the status of any alien should
be adjusted under this section is final and shall not be
subject to review by any court.
(g) No Offset in Number of Visas Available.--When an alien
is granted the status of having been lawfully admitted for
permanent resident pursuant to this section, the Secretary of
State shall not be required to reduce the number of immigrant
visas authorized to be issued under any provision of the
Immigration and Nationality Act.
(h) Application of Immigration and Nationality Act
Provisions.--Except as otherwise specifically provided in
this Act, the definitions contained in the Immigration and
Nationality Act shall apply in the administration of this
section. Nothing contained in this Act shall be held to
repeal, amend, alter, modify, effect, or restrict the powers,
duties, functions, or authority of the Attorney General in
the administration and enforcement of such Act or any other
law relating to immigration, nationality, or naturalization.
The fact that an alien may be eligible to be granted the
status of having been lawfully admitted for permanent
residence under this section shall not preclude the alien
from seeking such status under any other provision of law for
which the alien may be eligible.
Mr. KENNEDY. Mr. President, it is a privilege to join Senator Graham,
Senator Mack, Senator Abraham, and Senator Moseley-Braun in introducing
legislation providing permanent residence to Haitian refugees.
The Senate has now adopted legislation to enable Nicaraguan and Cuban
refugees to remain permanently in the United States as immigrants, and
to enable Salvadorans and Guatemalans to seek similar relief on a case-
by-case basis.
Haitian refugees deserve no less.
These families fled violence, torture, murder and other atrocities in
Haiti. The Bush administration and the Clinton administration found
that the vast majority of these refugees fled from Haiti because of a
legitimate fear of persecution.
These deserving Haitian refugees have resettled in many different
States. They brought with them an unparalleled love of freedom, and a
strong commitment to our democracy. They honor the opportunity that
America offers.
They were welcomed by churches and neighborhood groups, who have
helped them rebuild their lives in communities across America. Today,
they are contributing and valued members of our society.
Immigration relief for Haitian refugees should have been included in
the legislation to assist the refugees from Central America.
President Clinton wrote to Speaker Gingrich to emphasize the
importance of comparable relief for Haitian refugee families at a time
when Congress was acting on relief for other refugees. Haitian refugees
deserve the same immigration opportunities that the Republican
leadership is proposing for refugees from Central America.
But the Republican leadership in Congress said no. They even rejected
our efforts at least to provide immediate relief from deportation for
Haitian families.
While the Republicans said no to these refugees, I understand that
the Clinton administration will be taking steps to assure these Haitian
families that they will be protected from deportation while Congress
considers legislation in the coming months to allow the families to
seek permanent residence here.
And I commend Senator Moseley-Braun for her extraordinary leadership
in working with the administration to achieve this important result, as
well as Representative Carrie Meek for her tireless efforts for Haitian
refugees.
The legislation we are introducing will provide the fair relief that
is greatly needed. It is a matter of simple justice.
It should be adopted as soon as possible and I regret it was not part
of the measure enacted today.
Ms. MOSELEY-BRAUN. Mr. President, I am pleased to join Senators Mack,
Kennedy, Abraham, and Graham in introducing the Haitian Refugee
Immigration Fairness Act of 1997. I believe that this legislation will
help mend a current shortcoming in the law.
During the early 1990's, our country flew in some 11,000 Haitians who
fled the oppressive and dangerous conditions in their homeland during
the overthrow of Haiti's democratically elected government. As you may
know, this coup was marked by atrocious human rights abuses, including
systematic use of rape and murder as weapons of terror. The
International Civilian Mission, which has monitored human rights
conditions throughout Haiti, documented this tragedy, including horrors
so awful as to be almost imaginable.
To allow such human rights violations to occur so close to home,
while doing nothing would have been inconsistent with the stated goals
of our foreign policy. So in 1991, the United States took in persons
fleeing Haiti at Guantanamo Bay, Cuba. After intense screening, many of
these individuals were paroled into the United States to apply
affirmatively for asylum. Between October, 1991 and May, 1992, over
30,000 Haitians were interviewed. Less than one-third of these
individuals were paroled into the United States to seek asylum.
For the past 6 years, these individuals have had pending asylum cases
with the Immigration and Naturalization Service. Now, despite the fact
that these individuals have become a viable part of our Nation's
communities, deportation of these Haitians has begun.
[[Page S12309]]
The individuals that I am talking about today are the children, wives,
brothers, and sisters of soldiers and activists who stood up for
democracy in Haiti and suffered a great deal because of the strength of
their convictions. They fled to this country for refuge. They played by
our rules. In the time that they've been here, they've built homes,
paid taxes, and raised families in our country.
Two Presidential administrations have promised this class of people
relief, and I believe that we have an obligation to make good on those
promises. There is no excuse not to give them the relief similar to the
relief that we have just recently granted to some 250,000 similarly
situated Central American nationals.
I believe that in order to be equitable and fair, we must grant
similar relief to this small group of individuals. This bill grants
that relief. I urge my colleagues to join me in supporting this
legislation, and look forward to working with everyone to see that this
issue is equitably resolved.
______
By Mr. LOTT (for himself, Mr. Daschle, and Mr. Warner):
S. 1508. A bill to authorize the Architect of the Capitol to
construct a Capitol Visitor Center under the direction of the United
States Preservation Commission, and for other purposes; to the
Committee on Rules and Administration.
legislation authorizing the construction of a capitol visitors center
Mr. WARNER. Mr. President, I rise as an original cosponsor of this
legislation that will authorize the Architect of the Capitol to
construct a Capitol Visitor Center under the direction of the U.S.
Capitol Preservation Commission.
The construction of a Capitol Visitor Center is a matter that has
been discussed and contemplated for many years. In fact, both the
current and the preceding Architect of the Capitol have reviewed and
supported the project. Over the years, I have personally been involved
in numerous Rules Committee hearings and briefings on the subject.
In my view, the time has come for Congress to move ahead with this
project. This legislation is an important step in that direction in
that it directs the Capitol Preservation Commission to develop a
detailed financial plan for constructing the project, largely with
funds donated by the American people.
The Capitol is the second most visited building in the entire
Washington, DC area, having nearly 35,000 visitors pass through its
doors every day. For many visitors there are long lines and waits in
hot sticky weather, or cold wet weather, as there is no place for
visitors to gather in preparation for their tour through the Capitol.
The Capitol Visitor Center will have a tremendous, positive impact on
the informational and educational experience afforded visitors to the
Capitol. It will provide information regarding the history and role of
Congress, along with additional information about the visitor's
Representative and Senators
But for me, the most compelling need for the Capitol Visitor Center
is to add a major element of enhanced security for the entire Capitol
building and environs. During the recent Capitol security hearings held
in the Senate Rules Committee, the security benefits that a Capitol
Visitor Center will provide were outlined clearly by the Capitol Police
Board. I strongly believe that the security benefits provided by a
Capitol Visitor are not to be taken lightly.
I hope all Members will support this important legislation that will
greatly enhance the experience visitors receive when visiting our
Nations Capitol.
______
By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 1509. A bill to authorize the Bureau of Land Management to use
vegetation sales contracts in managing land at Fort Stanton and certain
nearby acquired land along the Rio Bonita in Lincoln County, New
Mexico, to the Committee on Energy and Natural Resources.
the fort stanton and rio bonito corridor vegetation management act
Mr. DOMENICI. Mr. President, I rise to introduce a bill to authorize
the Bureau of Land Management to generate funds for the management of
Fort Stanton and the Rio Bonito Corridor in Lincoln County, NM. These
funds will be raised by authorizing the use of vegetation sales
contracts, which will allow the use of forage for livestock grazing.
The Fort Stanton and Rio Bonito Corridor Vegetation Management Act
will provide livestock producers with opportunities for additional
grazing in the Fort Stanton area, while providing the Bureau of Land
Management [BLM] the flexibility to manage the lands in this area
according to the recently approved Roswell Area Resource Management
Plan.
Mr. President, as background, land in the Fort Stanton area has been
acquired by the BLM through purchase, exchange, and transfer from the
State of New Mexico. Fort Stanton itself came under the jurisdiction of
the BLM by transfer from the U.S. General Services Administration in
1956. Certain tracts along the Rio Bonito in the Fort Stanton area came
to the BLM by exchange in 1995. These lands are highly valued for their
unique cultural, historic, and natural resources.
General, livestock grazing is managed by the BLM according to a
number of laws, including the Taylor Grazing Act, and the regulations
that implement those laws. Currently, the Fort Stanton area lands are
not within an established grazing district, and are not administered
under the Taylor Grazing Act. To continue maintaining and improving the
resources of these lands, and to fulfill the management objectives
established through the Federal Land Policy and Management Act [FLPMA]
planning process, the BLM needs additional management flexibility. The
management of vegetation under this additional flexibility will allow
for improvement of watershed conditions and wildlife habitat, and will
allow for the development of additional recreational opportunities on
these public lands, all of which provide benefits for the people and
economy of Lincoln County, NM.
The use of livestock grazing in this area has been employed
successfully by the BLM in the past. Rangeland improvements and
vegetation treatments will emphasize the needs of wildlife and improve
watershed management as intended under the current management plan. The
use of vegetation sales contracts authorized by this legislation will
allow the BLM to use livestock grazing without establishing grazing
preferences on these lands.
Finally, Mr. President, the proceeds from vegetation sales contracts
will provide additional money for the BLM to use in the management of
Fort Stanton and the Rio Bonito Corridor. When offered by the BLM,
these contracts will be sold to the highest bidder, who will then be
permitted to graze livestock in this area under specific terms and
conditions. Some will wonder how the Senator from New Mexico, who has
consistently opposed the policy of competitive bidding for grazing
permits on public lands, could offer such a proposal. Quite simply, Mr.
President, the BLM's management plan for this area provides the rancher
bidding on these contracts with facilities and a number of services at
Fort Stanton, that it simply cannot provide on the vast majority of the
270 million acres it is charged with managing. This area will be
similar to the furnished apartment--where facilities and services are
provided by the BLM as a part of the contract--which my colleagues have
heard used as a comparison on the Senate floor in the past. Grazing
permits offered on other public domain lands remain the unfurnished
apartment--where the BLM provides no facilities or services to grazing
permittees.
At Fort Stanton, the BLM will be responsible for maintaining and
operating the watering facilities, and will not require the lessee to
construct improvements and pay for them out of his own pocket.
Additionally, the BLM already owns all of the livestock handling
facilities at Fort Stanton, and the lessee will be allowed to use them
as a part of the contract. Under this legislation, part of the proceeds
from the sale of these contracts will be available for BLM to provide
improvements to existing facilities, and a greater level of onsight
management than is available on other public lands. An additional
difference is that this public land has not been an integral part of an
established ranch for the past 60 years, at least not in the same
[[Page S12310]]
manager as public land ranches governed by the Taylor Grazing Act. This
means that providing opportunities for competitive bidding in this area
will not remove the heart of an existing family ranch that has been in
operation for several generations.
Mr. President, I am hopeful that the Senate will be able to move this
legislation through Congress rapidly next year, and 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. 1509
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 ``Fort Stanton and Rio Bonito
Corridor Vegetation Management Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the lands under the jurisdiction of the Secretary
surrounding Fort Stanton, New Mexico, contain historic and
natural resources that warrant special management
considerations by the Bureau of Land Management;
(2) the adjudication process for establishing grazing
preferences under the Act of June 28, 1934 (commonly known as
the ``Taylor Grazing Act'') (43 U.S.C. 315 et seq.) and other
applicable laws has not been conducted on lands acquired by
the Secretary at and near Fort Stanton, New Mexico, including
lands along the Rio Bonito in Lincoln County, New Mexico;
(3) in the management of renewable forage resources on
lands surrounding Fort Stanton, New Mexico, vegetation sales
contracts would be a beneficial tool for the Bureau of Land
Management to use to maintain and enhance the condition of
the forage and other natural resources of the area;
(4) the management of grazing animals under vegetation
sales contracts requires fiscal resources and personnel that
exceed that of the grazing preference system in place on
other public domain lands; and
(5) disputes over the legal description of lands acquired
by the Secretary along the Rio Bonito in Lincoln County, New
Mexico, make it necessary for the Bureau of Land Management
to pursue reasonable legal remedies under existing
authorities to resolve such disputes with adjacent
landowners.
SEC. 3. DEFINITIONS.
(1) Fort Stanton.--The term ``Fort Stanton'' means land
under the administrative jurisdiction of the Secretary at
Fort Stanton, New Mexico, as depicted on the map entitled
``Fort Stanton and Rio Bonito Corridor, NM'', dated May 13,
1997.
(2) Rio bonito corridor.--The term ``Rio Bonito Corridor''
means land under the administrative jurisdiction of the
Secretary near Fort Stanton, New Mexico, within the area
identified as the ``Rio Bonito Corridor'', as depicted on the
map entitled ``Fort Stanton and Rio Bonito Corridor, NM'',
dated May 13, 1997, which--
(A) was acquired by the Secretary before May 13, 1997; or
(B) is acquired by the Secretary (by purchase or exchange)
from willing landowners after May 13, 1997.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Director of the Bureau of
Land Management.
SEC. 4. MAPS.
The maps referred to in section 3 shall be made available
for public inspection by the Bureau of Land Management at the
Roswell District Office in Roswell, New Mexico, and at the
New Mexico State Office in Santa Fe, New Mexico.
SEC. 5. MANAGEMENT OF FORT STANTON AND RIO BONITO LAND.
(a) In General.--Notwithstanding any provision of the Act
of June 28, 1934 (43 U.S.C. 315 et seq.), or any other law
relating to the establishment, leasing, or permitting of
grazing under a grazing preference, the Secretary, in
managing land within Fort Stanton and the Rio Benito Corridor
that is under the jurisdiction of the Secretary, may solicit
competitive bids for and enter into vegetation sales
contracts for the purpose of using livestock grazing as a
vegetation management tool. Any such contracts entered into
with respect to the land before the date of enactment of this
Act are ratified.
(b) Consistency With Land and Resource Management Plans.--
Management of Fort Stanton and the Rio Benito Corridor shall
be consistent with any applicable land and resource
management plan under the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1701 et seq.).
(c) Distribution and Use of Proceeds.--Of the proceeds of
vegetation sales contracts entered into under subsection
(a)--
(1) 12\1/2\ percent shall be paid to the State of New
Mexico for distribution to Lincoln County, New Mexico, to be
used for purposes authorized by section 10 of the Act of June
28, 1934 (43 U.S.C. 315i);
(2) 12\1/2\ percent shall be deposited in the general fund
of the Treasury of the United States; and
(3) 75 percent shall be deposited in a special account in
the Treasury of the United States and shall be available to
the Secretary, without further Act of appropriation, for use
in managing Fort Stanton and the Rio Benito Corridor and to
achieve the management goals and prescriptions identified in
applicable resource management plans for the Rio Benito
acquired lands and the Fort Stanton area of critical
environmental concern, but none of the proceeds provided to
the Secretary under this paragraph shall be available for
land acquisition.
______
By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 1510. A bill to direct the Secretary of the Interior and the
Secretary of Agriculture to convey certain lands to the county of Rio
Arriba, New Mexico; to the Committee on Energy and Natural Resources.
the rio arriba, new mexico land conveyance act of 1997
Mr. DOMENICI. Mr. President, today, I am introducing legislation that
I believe will provide long-term benefits for the people of Rio Arriba
County, New Mexico. This legislation will direct the Secretaries of the
Interior and Agriculture to convey real property and improvements at an
abandoned and surplus administrative site for the Carson National
Forest to Rio Arriba County. The site is known as the old Coyote Ranger
District Station, near the small town of Coyote, New Mexico.
This legislation is patterned after a similar transfer that the 103rd
Congress directed the Secretary of Agriculture to complete on the old
Taos Ranger District Station in 1993. As with the Taos station, the
Coyote Station will continue to be used for public purposes, including
a community center, and a fire substation. Some of the buildings will
also be available for the County to use for storage and repair of road
maintenance equipment, and other County vehicles.
Mr. President, the Forest Service has determined that this site is of
no further use to them, since they have recently completed construction
of a new administrative facility for the Coyote Ranger District. In an
October 22 letter from the Regional Forester of the Southwest Region, I
was informed that on August 7, the Forest Service reported to the
General Services Administration that the improvements on the site were
considered surplus, and would be available for disposal under their
administrative procedures. At this particular site, however, the land
on which the facilities have been built is withdrawn public domain
land, under the jurisdiction of the Bureau of Land Management.
Because of the complicating factor of the land and the facilities
being under the jurisdiction of two separate Departments of the Federal
government, I believe that this directed conveyance to Rio Arriba
County will provide for a more efficient and expedited transfer. Under
administrative processes, not only will the Departments of the Interior
and Agriculture have to go through their respective procedures, but
there will likely be some involvement of the General Services
Administration. This legislation simply directs the Secretaries of the
Interior and Agriculture to negotiate the terms and conditions of the
conveyance directly with officials from Rio Arriba County.
Mr. President, since neither the Bureau of Land Management nor the
Forest Service have any interest in maintaining Federal ownership of
this land and the surplus facilities, I believe that this should be a
relatively straight-forward issue for Congress to address. I hope that
we will be able to act on this legislation quickly next spring.
In closing, Mr. President, I want to thank the Senate for its
consideration, and 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. 1510
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. OLD COYOTE ADMINISTRATIVE SITE.
(a) Conveyance of Property.--Not later than 180 days after
the date of enactment of this Act, the Secretary of the
Interior and the Secretary of Agriculture shall convey by
quit-claim deed to the county of Rio Arriba, New Mexico,
subject to the terms and conditions stated in subsection (b),
all right, title, and interest of the United States in and to
the land (including all improvements on the land) known as
the ``Old Coyote Administrative Site'' located approximately
\1/2\ mile east
[[Page S12311]]
of the Village of Coyote, New Mexico on State Road 96,
comprising 1 tract of 130.27 acres and 1 tract of 276.76
acres.
(b) Terms and Conditions.--
(1) Consideration.--The conveyance described in subsection
(a) shall be in consideration of an amount that is agreeable
to the Secretary of the Interior, the Secretary of
Agriculture, and the county of Rio Arriba, New Mexico,
payable in full within the 6-month period referred to in
subsection (a), or, at the option of the county, in 20 annual
payments due on January 1 of the first year beginning after
the date of enactment of this Act and annually thereafter
until the total amount due has been paid. The county shall
not be charged interest on amounts owed the United States for
the conveyance.
(2) Release.--On conveyance of the property under
subsection (a), the county shall release the United States
from any liability for claims relating to the property.
(3) Reversion.--The conveyance under subsection (a) shall
be a conveyance fee simple title to the property, subject to
reversion to the United States if the property is used for
other than public purposes or if the consideration
requirements under paragraph (1) are not met.
______
By Mr. LAUTENBERG (for himself, Mr. D'Amato, Mr. Moynihan, and
Mr. Torricelli):
S. 1512. A bill to amend section 659 of title 18, United States Code;
to the Committee on the Judiciary.
Mr. LAUTENBERG. Mr. President, I rise to introduce legislation with
Senators D'Amato, Moynihan, and Torricelli that addresses the growing
problem of cargo theft. This crime, which covers the interstate theft
of cargo from ports, airports, rails, and roads, causes losses as high
as $10 billion a year in the United States. The ``Cargo Theft
Deterrence Act of 1997'' increases the incentive for prosecutors to
pursue this crime and for defendants to cooperate with law enforcement.
Furthermore, this legislation clarifies what is covered by existing
law.
Cargo theft continues unabated as criminals discover that the risks
of getting caught and prosecuted are far lower than for comparably
lucrative crimes. This tends to be an under-reported crime that has
received a relatively small amount of attention by Congress. I believe
this must change. Mr. President, let me cite a few statistics that
should demonstrate to my colleagues the seriousness of this crime and
why we should act. In 1994, the dollar value in goods stolen from a
single tractor-trailer rig in New Jersey was higher than all of the
bank robberies combined in my state for that year.
While certain regions of the United States, such as New Jersey/New
York, Southern California, and South Florida, sustain higher cargo
theft losses than others, consumers nationwide are affected. For
example, one industry group estimated that computers cost an average of
$150 more because of cargo theft, and that approximately $3.5 billion
of computers, chips, and software are stolen annually. The risk
management director for one computer company said that ``it's a rare
company that hasn't ever lost a truck.'' Most people do not realize
that the value of computer chips per pound is higher than gold. And,
unfortunately, the resale value of stolen items is much higher than
what one might believe. Many of these goods end up overseas while
others are sold in the same city.
Mr. President, virtually no product is safe from this crime. While
theft of computers and computer products, fragrances, and designer
clothes are not uncommon, items ranging from frozen seafood, pineapple
pulp, cough drops, refried beans, and insulation have been reported
stolen.
The industry maxim of ``cargo at rest is cargo at risk'' is no longer
a truism--all cargo is a risk--and contrary to the belief that this is
a victimless crime, an alarming number of tractor trailers have been
hijacked. This occurred just several weeks ago in New Jersey, when a
truck was hijacked right after leaving a port. Fortunately the driver
was unharmed though one million dollars' worth of clothes were stolen.
Tighter measures taken by port authorities and manufacturers at their
plants have caused such hijackings to increase.
Mr. President, the need for this legislation is not a criticism of
our law enforcement. The Port Authority of New York & New Jersey, for
example, has made significant strides at curbing this crime in the New
Jersey/New York region. Unfortunately, existing law does not provide an
adequate deterrent because the penalties are not sufficiently severe
nor is there an incentive for defendants to cooperate with prosecutors.
Let me explain, Mr. President, what my legislation will do. It will
bring efforts to fight this crime into the next century. Enacted in its
earliest form in 1913, the statute that my bill modifies covers such
older modes of transportation and distribution of cargo as wagons,
depots, and steamboats. My bill recognizes the advances we have made in
intermodal connections and transportation by adding such terms as
``trailer,'' ``air cargo container,'' and ``freight consolidation
facility.'' The days of cargo theft from wagons are gone. Furthermore,
the Cargo Theft Deterrence Act broadens the statute's coverage to
clarify that cargo is moving as an interstate or foreign shipment at
all points between the point of origin and the final destination.
Merely because a container is temporarily at rest awaiting transport to
its final destination should not prevent law enforcement from
prosecuting a defendant under this statute. Existing law currently
covers cargo moving as a part of interstate or foreign commerce.
My legislation increases the penalties for convictions under this
statute. Current law provides that those convicted of this provision
shall be fined or imprisoned not more than one year, or both. My bill
increases this maximum prison term to three. This statute, as currently
written, requires the government to prove that not only did a defendant
embezzle, steal, or unlawfully take the cargo, it must show that he did
so with the intent to convert to his own use. This seems duplicative at
best and is an unnecessary hurdle for the prosecutor to demonstrate.
The Cargo Theft Deterrence Act eliminates the term, ``with intent to
convert to his own use'' from this statute. Since we have removed this
intent language, we have created the affirmative defense that the
defendant bought, received, or possessed the cargo with the sole intent
of reporting the matter to either law enforcement or the owner of the
cargo.
The Sentencing Commission is directed to provide a sentencing
enhancement of two levels for this crime similar to enhancements made
for offenses involving organized schemes to steal vehicles or if the
offense involved more than minimal planning. This Act also requires the
Attorney General to report annually to Congress on the progress made by
law enforcement investigating and prosecuting this crime. Additionally,
upon motion by the Attorney General, a court may reduce the penalties
if a defendant cooperates with law enforcement. Use of informants is
essential in reducing this crime and this provision creates an
appropriate incentive.
Finally, Mr. President, my legislation creates a Cargo Theft Advisory
Committee that will study and make recommendations about the
establishment of a national data base of information about this crime.
A constant complaint by industry and law enforcement is that there is a
lack of good data about cargo theft. Industry tends to under-report it
and law enforcement frequently classifies it in such categories as
theft, robbery, hijacking, and burglary. This Committee, which shall
exist for one year and report its findings and recommendations to
Congress and the President, will also review the desirability of
creating a centralized office within the federal government to oversee
efforts designed to curb cargo theft and to increase coordination with
the private sector, and state and local law enforcement.
Mr. President, I thought an advisory committee was the most prudent
course because legitimate questions have been raised about whether this
data base should be maintained by the public or private sector, who
should be able to access it, and what information should be collected,
yet remain confidential. Moreover, there are several logical agencies
that could house an office on cargo security so I thought it is
appropriate to have cargo security experts in both the public and
private sector make this recommendation.
Mr. President, I look forward to the Judiciary Committee's
consideration of this legislation and urge my colleagues to support
this first step in addressing this crime that affects all Americans. I
ask unanimous consent that the text of the bill be printed in the
Record.
[[Page S12312]]
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1512
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 ``Cargo Theft Deterrence Act
of 1997''.
SEC. 2. INTERSTATE OR FOREIGN SHIPMENTS BY CARRIER.
(a) In General.--Section 659 of title 18, United States
Code, is amended--
(1) by striking ``with intent to convert to his own use''
each place that term appears;
(2) in the first undesignated paragraph--
(A) by inserting ``trailer,'' after ``motortruck,'';
(B) by inserting ``air cargo container,'' after
``aircraft,''; and
(C) by inserting ``, or from any intermodal container,
trailer, container freight station, warehouse, or freight
consolidation facility,'' after ``air navigation facility'';
(3) in the fifth undesignated paragraph--
(A) by striking ``one year'' and inserting ``3 years''; and
(B) by adding at the end the following: ``Notwithstanding
the preceding sentence, the court may, upon motion of the
Attorney General, reduce any penalty imposed under this
paragraph with respect to any defendant who provides
information leading to the arrest and conviction of any
dealer or wholesaler of stolen goods or chattels moving as or
which are a part of or which constitute an interstate or
foreign shipment.'';
(4) in the penultimate undesignated paragraph, by inserting
after the first sentence the following: ``For purposes of
this section, goods and chattel shall be construed to be
moving as an interstate or foreign shipment at all points
between the point of origin and the final destination (as
evidence by the waybill or other shipping document of the
shipment), regardless of any temporary stop while awaiting
transshipment or otherwise.''; and
(5) by adding at the end the following:
``It shall be an affirmative defense (on which the
defendant bears the burden of persuasion by a preponderance
of the evidence) to an offense under this section that the
defendant bought, received, or possessed the goods, chattels,
money, or baggage at issue with the sole intent to report the
matter to an appropriate law enforcement officer or to the
owner of the goods, chattels, money, or baggage.''.
(b) Federal Sentencing Guidelines.--Pursuant to section 994
of title 28, United States Code, the United States Sentencing
Commission shall amend the Federal sentencing guidelines to
provide a sentencing enhancement of not less than 2 levels
for any offense under section 659 of title 18, United States
Code, as amended by this section.
(c) Report to Congress.--The Attorney General shall
annually submit to Congress a report, which shall include an
evaluation of law enforcement activities relating to the
investigation and prosecution of offenses under section 659
of title 18, United States Code, as amended by this section.
SEC. 3. ADVISORY COMMITTEE ON CARGO THEFT.
(a) Establishment.--
(1) In general.--There is established a Committee to be
known as the Advisory Committee on Cargo Theft (in this
section referred to as the ``Committee'').
(2) Membership.--
(A) Composition.--The Committee shall be composed of 6
members, who shall be appointed by the President, of whom--
(i) 1 shall be an officer or employee of the Department of
Justice;
(ii) 1 shall be an officer or employee of the Department of
Transportation;
(iii) 1 shall be an officer or employee of the Department
of the Treasury; and
(iv) 3 shall be individuals from the private sector who are
experts in cargo security.
(B) Date.--The appointments of the initial members of the
Committee shall be made not later than 3 days after the date
of enactment of this Act.
(3) Period of appointment; vacancies.--Each member of the
Committee shall be appointed for the life of the Committee.
Any vacancy in the Committee shall not affect its powers, but
shall be filled in the same manner as the original
appointment.
(4) Initial meeting.--Not later than 15 days after the date
on which all initial members of the Committee have been
appointed, the Committee shall hold its first meeting.
(5) Meetings.--The Committee shall meet, not less
frequently than quarterly, at the call of the Chairperson.
(6) Quorum.--A majority of the members of the Committee
shall constitute a quorum, but a lesser number of members may
hold hearings.
(7) Chairperson.--The President shall select 1 member of
the Committee to serve as the Chairperson of the Committee.
(b) Duties.--
(1) Study.--The Committee shall conduct a thorough study
of, and develop recommendations with respect to, all matters
relating to--
(A) the establishment of a national computer database for
the collection and dissemination of information relating to
violations of section 659 of title 18, United States Code
(as added by this Act); and
(B) the establishment of an office within the Federal
Government to promote cargo security and to increase
coordination between the Federal Government and the private
sector with respect to cargo security.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Committee shall submit to the
President and to Congress a report, which shall contain a
detailed statement of results of the study and the
recommendations of the Committee under paragraph (1).
(c) Powers.--
(1) Hearings.--The Committee may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Committee considers advisable to
carry out the purposes of this section.
(2) Information from federal agencies.--The Committee may
secure directly from any Federal department or agency such
information as the Committee considers necessary to carry out
the provisions of this section. Upon request of the
Chairperson of the Committee, the head of such department or
agency shall furnish such information to the Committee.
(3) Postal services.--The Committee may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(4) Gifts.--The Committee may accept, use, and dispose of
gifts or donations of services or property.
(d) Personnel Matters.--
(1) Compensation of members.--
(A) Non-federal members.--Each member of the Committee who
is not an officer or employee of the Federal Government shall
be compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which such member is engaged in the performance of the duties
of the Committee.
(B) Federal members.--Each member of the Committee who is
an officer or employee of the United States shall serve
without compensation in addition to that received for their
service as an officer or employee of the United States.
(2) Travel expenses.--The members of the Committee shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Committee.
(3) Staff.--
(A) In general.--The Chairperson of the Committee may,
without regard to the civil service laws and regulations,
appoint and terminate an executive director and such other
additional personnel as may be necessary to enable the
Committee to perform its duties. The employment of an
executive director shall be subject to confirmation by the
Committee.
(B) Compensation.--The Chairperson of the Committee may fix
the compensation of the executive director and other
personnel without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of title 5, United States Code,
relating to classification of positions and General Schedule
pay rates, except that the rate of pay for the executive
director and other personnel may not exceed the rate payable
for level V of the Executive Schedule under section 5316 of
such title.
(4) Detail of government employees.--Any Federal Government
employee may be detailed to the Committee without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(5) Procurement of temporary and intermittent services.--
The Chairperson of the Committee may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals which do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of such title.
(e) Termination.--The Committee shall terminate 90 days
after the date on which the Committee submits the report
under subsection (b)(2).
(f) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated
such sums as may be necessary to the Committee to carry out
the purposes of this section.
(2) Availability.--Any sums appropriated under the
authorization contained in this section shall remain
available, without fiscal year limitation, until expended.
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