[Congressional Record Volume 144, Number 7 (Thursday, February 5, 1998)]
[Senate]
[Pages S451-S456]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEAHY (for himself and Mr. Feingold):
  S. 1612. A bill to provide for taxpayer recovery of costs, fees, and 
expenses under section 504 of title 5, United States Code, and section 
2412 of title 28, United States Code, and for other purposes; to the 
Committee on the Judiciary.


         the equal access to justice for taxpayers act of 1998

  Mr. LEAHY. Mr. President, I wish to introduce the Equal Access to 
Justice for Taxpayers Act of 1998. I am pleased that the Senator from 
Wisconsin, Senator Feingold, is joining me as an original sponsor of 
this important legislation.

  Like so many Americans, I was disgusted by the evidence that surfaced 
of so many abuses of the IRS at recent hearings by the Senate Finance 
Committee. I followed the hearings very closely, and I heard taxpayer 
after taxpayer come before the Finance Committee recounting horror 
stories and trying to fight against unjustified action by the IRS that 
cost them thousands of dollars and countless hours of emotional 
distress. These average taxpayers told of frustration and despair 
caused by rogue IRS personnel who used the awesome resources of that 
agency to punish them.
  Probably the saddest part about what we heard was that these good 
Americans, taxpayers, felt powerless to even question or fight back 
against their own Government. I believe, as many of my colleagues from 
both sides of the aisle do, that Congress needs to reform the IRS and 
stop these abuses from ever happening again.
  Unfortunately, current law hamstrings taxpayers who challenge the 
IRS. Our legislation would change that by giving taxpayers, for the 
first time ever, a cause of action under the existing Equal Access to 
Justice Act (EAJA). Under our bill, taxpayers may exercise their rights 
under the EAJA to win awards of legal fees, expert witness fees and 
other costs against the IRS when that agency takes substantially 
unjustified action against them. Thousands of citizens have won 
vindication against unjust governmental action under the EAJA, and 
taxpayers should be able to do the same thing.
  Today, most taxpayers feel that if the IRS comes after them, even if 
they think it is unjustified, they don't dare fight it because it will 
cost more in lawyers, accountant fees, and so on. Under our act, if 
they prove it was unjustified action, the Government pays them for 
their lawyer fees and for their accountant's fees. This was done by 
Congress to help individuals, partnerships, and corporations in other 
administrative actions involving the Government. We should do the same 
with the IRS.
  In 1981, Congress enacted the EAJA to help individuals, partnerships 
and corporations seek review of, or to defend against, unjustified 
governmental action because of the expense involved in securing the 
vindication of their rights in civil actions and in administrative 
proceedings. The EAJA permits citizens who prevail in these actions in 
proceedings against federal agencies to recover their costs when the 
government acted unjustly. Its purpose is to deter abusive actions and 
overreaching by the government and to enable individuals to vindicate 
their rights, regardless of their economic circumstances.
  But court decisions have interpreted the EAJA to exempt all civil 
actions and administrative proceedings in connection with the Internal 
Revenue Service (IRS) from its protections. Instead, taxpayers must 
seek review of, or defend against, unjustified actions by the IRS under 
provisions in the Internal Revenue Code. These Internal Revenue Code 
provisions make it much harder for average taxpayers to recover against 
unjust IRS actions.
  The recent report of National Commission on Restructuring the 
Internal Revenue Service agreed that the Internal Revenue Code fails to 
provide taxpayers with adequate legal rights to recover attorney's fees 
and other costs against unjust IRS actions. The Commission recently 
proposed numerous reforms to make the IRS more effective and responsive 
to taxpayers. I commend Senators Kerrey and Grassley, who served on 
this bipartisan commission, for introducing legislation to implement 
many of its recommendations. I am a cosponsor of the IRS reform bill 
that they have introduced, and I hope the Senate's majority leadership 
will allow this bill to come to a vote soon to put these taxpayer 
protections in place as rapidly as possible.
  The Commission's report found that: ``While the Taxpayer Bill of 
Rights legislation made great strides to allow taxpayers to recover 
damages for IRS malfeasance, current provisions do not provide adequate 
relief. In addition, there are many cases in which taxpayers are not 
able to obtain review of IRS actions.'' The Commission concluded that: 
``Congress must provide taxpayers with adequate and reasonable 
compensation for actual damages incurred for wrongful actions by the 
IRS.''
  What I am saying is this: If the IRS comes after a taxpayer, and if 
they use draconian methods in an unjustified action, that not only is 
the taxpayer going to win but the taxpayer is going to get their costs 
of defending back. So that at least we are going to have the potential 
of an equal playing field so that we will not have taxpayers who feel 
that they are being attacked in an unjustified fashion. We will not 
have them think, ``I will either pay the lawyers or I am going to pay 
the IRS. I might as well surrender, even though I have done no wrong.'' 
Now they can defend their rights.
  It is time for Congress to heed this advice and give taxpayers the 
same rights that other citizens now have to seek review of, or to 
defend against, unjust governmental action. The IRS should be treated 
like every other federal agency under the law--no better and no worse.
  I urge my colleagues to support this legislation to provide taxpayers 
with the same rights as all other citizens who are subject to unjust 
governmental action.
  Mr. FEINGOLD. Mr. President, I am pleased to join my colleague, 
Senator Leahy, the distinguished Ranking Member of the Senate Judiciary 
Committee, in introducing a bill today that gives American taxpayers 
greater ability to recover attorneys fees and other costs against the 
Internal Revenue Service (IRS) for unjustified civil actions and 
administrative proceedings under the Equal Access To Justice Act 
(EAJA).
  Clearly, there is a need for such legislation in light of recent 
hearing testimony that average taxpayers have lost thousands of dollars 
in actual damages defending themselves against unjustified IRS actions. 
As the National Commission on Restructuring the Internal Revenue 
Service reported, current Internal Revenue Code provisions do not 
provide adequate relief for unjust IRS

[[Page S452]]

actions, much less enable many taxpayers to obtain review of IRS 
actions at all. I am pleased to join the Senator from Vermont in this 
effort to help level the playing field and help the American taxpayer 
recover when the IRS acts improperly.
  Like other citizens who seek review of, or defend against, 
unjustified governmental action by federal agencies, taxpayers who 
successfully defend against the IRS should be able to recover attorneys 
fees and other costs against when the situation warrants such an award. 
By providing such relief to taxpayers under the EAJA, not only does 
this bill help individuals recover the cost of their defense, but also 
helps deter future abusive actions by the IRS. The Equal Access to 
Justice Act has helped American citizens and small businesses recover 
against other federal agencies and this bill makes the IRS accountable 
under EAJA, just like the rest of the federal government.
  My interest in the Equal Access To Justice Act predates my election 
to this body, dating back to my tenure as a State Senator where I 
worked on the Wisconsin version of EAJA. In addition to working on the 
Wisconsin EAJA, I have introduced in a previous Congress, and will do 
so again today, separate legislation to update and streamline the 
existing federal EAJA--to make the process of recovery less cumbersome 
and to help ensure that people are made whole when the government 
cannot defend their actions.
  The federal EAJA was originally enacted in 1980 and made permanent in 
1985. The Act was intended to make taking on the federal government in 
court less intimidating and I was specifically aimed at helping average 
citizens and small businesses that prevail against unjustified 
governmental actions. In my view, EAJA is an effective and valuable 
check on the virtually limitless power of the federal government.
  One would assume that the typical American taxpayer is protected by 
the EAJA. However, this is not the case as the Act exempts all civil 
actions and administrative proceedings in connection with the IRS from 
its protections. In addition, court decisions have consistently 
interpreted the tax code as providing the only relief for taxpayers 
treated unjustly. The current system is inadequate and this legislation 
will help to change that untenable situation.
  I want to commend my friend and colleague from Vermont for his 
leadership on this important issue. The legislation we are introducing 
today is only one step in reforming the Internal Revenue Service and 
making that agency more accountable to the American people. However, it 
is an important and essential step in that process. The American people 
should not have to squander their hard earned money defending against 
unjustified actions by federal agencies--including the IRS. I look 
forward to working with Senator Leahy and the other concerned Members 
of this body as this legislation moves forward.
                                 ______
                                 
      By Mr. FEINGOLD:
  S. 1613. A bill to reform the regulatory process, and for other 
purposes; to the Committee on the Judiciary.


               EQUAL ACCESS TO JUSTICE AMENDMENTS OF 1998

  Mr. FEINGOLD. Mr. President, I rise today to introduce the Equal 
Access to Justice Reform Amendments of 1998. This legislation contains 
necessary improvements to existing law, the Equal Access to Justice 
Act, which will streamline and improve the current process of awarding 
attorney's fees to private parties who prevail in litigation against 
the government of the United States. I am introducing this legislation 
for the second consecutive Congress because I believe the reforms 
embodied in this legislation are important steps in reducing the 
government generated burden under which many individuals and small 
businesses currently operate.
  Over the past few years, certainly since the elections of 1994, many 
Members of the Senate have taken to the floor and spoken about the 
importance of ``getting government off the backs of the American 
people.'' We often hear about the need to reform government in very 
fundamental ways that effect people all across this nation. I agree and 
the legislation I propose here today deals directly with some aspects 
of the concerns we have heard in this chamber, by assisting everyday 
Americans who face legal battles with the federal government and 
prevail.
  At the outset, it is important to understand what the Equal Access to 
Justice Act is, and why it exists. The premise is very simple, EAJA 
places individuals and small businesses who face the United States 
Government in litigation, on equal footing by establishing guidelines 
for the award of attorney's fees when the individual or small business 
prevails. Quite simply, EAJA acknowledges that the resources available 
to the federal government in a legal dispute far outweigh those 
available to everyday Americans. This disparity is resolved by 
requiring the government, in certain instances, to pay the attorney's 
fees of successful private parties. By giving successful parties the 
right to seek attorney's fees from the United States, EAJA seeks to 
prevent small business owners from having to risk their companies in 
order to seek justice.
  My interest in this issue predates my election to the Senate and 
arises from my experience both as a private attorney and a Member of 
the Senate in my home state of Wisconsin. While in private practice, I 
became aware of how the ability to recoup attorney's fees is often the 
initial inquiry which must be made when deciding whether or not to seek 
redress in the courts. The significance of this factor should not be 
underestimated. Upon entering the State Senate, I authored legislation 
modeled on the federal law. Today, section 814.246 of the Wisconsin 
statutes contains provisions similar to the federal EAJA statute.
  It seemed to me then, as it does now, that we should do what we can 
to help ease the burdens on parties who need to have their claims 
reviewed and decided by impartial decision makers. To this end, I have 
reviewed the existing federal statutes with an eye toward improving 
them and making them work better. I believe that my legislation does 
just that. The bill I am introducing today, does a number of things to 
make EAJA more effective for individuals and small business men and 
women all across this country.
  One provision of my original bill that I introduced previously, 
raising the hourly attorneys fee cap to $125 from $75, has already been 
enacted as part of the Small Business Fair Treatment Act signed into 
law during the 104th Congress. While I am pleased that significant 
change was adopted, my legislation goes further by eliminating the 
existing ``special factors'' language which allowed the fee cap to be 
increased in certain circumstances. I believe the $125 level is 
consistent with the going rate and obviates the need for ``special 
factor'' language which often serves to slow the recovery process. 
Further, my legislation explicitly establishes a formula for 
calculating cost-of-living adjustments for awards and eliminates the 
often time consuming evaluation that was previously required in the 
absence of a specific standard. Both of these changes, coupled with the 
fee increase will work to make EAJA more efficient and effective for 
Americans.
  Another significant factor of my legislation is the elimination of 
the language which allows the government to escape paying attorneys' 
fees even if it loses a suit but can provide a substantial 
justification for its action. I believe that if an individual or small 
business battles the federal government in an adversarial proceeding 
and prevails, the government should pay the fees incurred. Imagine the 
scenario of a person who spends countless time and money dueling with 
the government and prevails, only to find out that they must now 
undergo the additional step of litigating the justification of the 
underlying governmental action. For the government, with its vast 
resources, this additional step poses no difficulty, but for the 
citizen it may simply not be financially feasible. A 1992 study 
prepared by University of Virginia Professor Harold Krent on behalf of 
the Administrative Conference of the United States found that only a 
small percentage of EAJA awards were denied because of the substantial 
justification defense and that while it is impossible to determine the 
exact cost of litigating the issue of justification, it is his opinion, 
based upon review of cases in 1989 and 1990, that while the substantial 
justification defense may save some money awards, it

[[Page S453]]

was not enough to justify the cost of the additional litigation. In 
short, eliminating this often burdensome second step is a cost 
effective step which will streamline recovery under EAJA.
  The final point in regard to streamlining and improving EAJA is 
language designed to encourage settlement and avoid costly and 
protracted litigation. Under the bill, the government is provided the 
ability to make an offer of settlement up to 10 days prior to a hearing 
on a fees claim. If the government's offer is rejected and the 
prevailing party seeking recovery ultimately wins a smaller award, that 
party is not entitled to attorneys' fees and costs they incurred after 
the date of government's offer. Again, this will speed the process and 
thereby reduce the time and expense of the litigation.
  We all know that the American small business owner has a difficult 
road to make ends meet and that unnecessary or overly burdensome 
government regulation can be a formidable obstacle to doing business. 
It can be the difference between success or failure. The Equal Access 
to Justice Act was conceived and implemented to help overcome the 
formidable power of the federal government. In this regard it has 
helped many Americans do just that. The legislation I am offering today 
will make EAJA more effective for more Americans while at the same time 
deterring the government from acting in an indefensible and unwarranted 
manner.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1613

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

     SECTION 1. EQUAL ACCESS TO JUSTICE REFORM.

       (a) Short Title.--This Act may be cited as the ``Equal 
     Access to Justice Reform Amendments of 1998''.
       (b) Award of Costs and Fees.--
       (1) Administrative proceedings.--Section 504(a)(2) of title 
     5, United States Code, is amended by inserting after ``(2)'' 
     the following: ``At any time after the commencement of an 
     adversary adjudication covered by this section, the 
     adjudicative officer may ask a party to declare whether such 
     party intends to seek an award of fees and expenses against 
     the agency should such party prevail.''.
       (2) Judicial proceedings.--Section 2412(d)(1)(B) of title 
     28, United States Code, is amended by inserting after ``(B)'' 
     the following: ``At any time after the commencement of an 
     adversary adjudication covered by this section, the court may 
     ask a party to declare whether such party intends to seek an 
     award of fees and expenses against the agency should such 
     party prevail.''.
       (c) Hourly Rate for Attorney Fees.--
       (1) Administrative proceedings.--Section 504(b)(1)(A)(ii) 
     of title 5, United States Code, is amended by striking all 
     beginning with ``$125 per hour'' and inserting ``$125 per 
     hour unless the agency determines by regulation that an 
     increase in the cost-of-living based on the date of final 
     disposition justifies a higher fee);''.
       (2) Judicial proceedings.--Section 2412(d)(2)(A)(ii) of 
     title 28, United States Code, is amended by striking all 
     beginning with ``$125 per hour'' and inserting ``$125 per 
     hour unless the court determines that an increase in the 
     cost-of-living based on the date of final disposition 
     justifies a higher fee);''.
       (d) Payment From Agency Appropriations.--
       (1) Administrative proceedings.--Section 504(d) of title 5, 
     United States Code, is amended by adding at the end the 
     following: ``Fees and expenses awarded under this subsection 
     may not be paid from the claims and judgments account of the 
     Treasury from funds appropriated pursuant to section 1304 of 
     title 31.''.
       (2) Judicial proceedings.--Section 2412(d)(4) of title 28, 
     United States Code, is amended by adding at the end the 
     following: ``Fees and expenses awarded under this subsection 
     may not be paid from the claims and judgments account of the 
     Treasury from funds appropriated pursuant to section 1304 of 
     title 31.''.
       (e) Offers of Settlement.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, is amended--
       (A) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (B) by inserting after subsection (d) the following new 
     subsection:
       ``(e)(1) At any time after the filing of an application for 
     fees and other expenses under this section, an agency from 
     which a fee award is sought may serve upon the applicant an 
     offer of settlement of the claims made in the application. If 
     within 10 days after service of the offer the applicant 
     serves written notice that the offer is accepted, either 
     party may then file the offer and notice of acceptance 
     together with proof of service thereof.
       ``(2) An offer not accepted shall be deemed withdrawn. The 
     fact that an offer is made but not accepted shall not 
     preclude a subsequent offer. If any award of fees and 
     expenses for the merits of the proceeding finally obtained by 
     the applicant is not more favorable than the offer, the 
     applicant shall not be entitled to receive an award for 
     attorneys' fees or other expenses incurred in relation to the 
     application for fees and expenses after the date of the 
     offer.''.
       (2) Judicial proceedings.--Section 2412 of title 28, United 
     States Code, is amended--
       (A) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (B) by inserting after subsection (d) the following new 
     subsection:
       ``(e)(1) At any time after the filing of an application for 
     fees and other expenses under this section, an agency of the 
     United States from which a fee award is sought may serve upon 
     the applicant an offer of settlement of the claims made in 
     the application. If within 10 days after service of the offer 
     the applicant serves written notice that the offer is 
     accepted, either party may then file the offer and notice of 
     acceptance together with proof of service thereof.
       ``(2) An offer not accepted shall be deemed withdrawn. The 
     fact that an offer is made but not accepted shall not 
     preclude a subsequent offer. If any award of fees and 
     expenses for the merits of the proceeding finally obtained by 
     the applicant is not more favorable than the offer, the 
     applicant shall not be entitled to receive an award for 
     attorneys' fees or other expenses incurred in relation to the 
     application for fees and expenses after the date of the 
     offer.''.
       (f) Elimination of Substantial Justification Standard.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, is amended--
       (A) in subsection (a)(1), by striking all beginning with 
     ``, unless the adjudicative officer'' through ``expenses are 
     sought''; and
       (B) in subsection (a)(2), by striking ``The party shall 
     also allege that the position of the agency was not 
     substantially justified.''.
       (2) Judicial proceedings.--Section 2412(d) of title 28, 
     United States Code, is amended--
       (A) in paragraph (1)(A), by striking ``, unless the court 
     finds that the position of the United States was 
     substantially justified or that special circumstances make an 
     award unjust'';
       (B) in paragraph (1)(B), by striking ``The party shall also 
     allege that the position of the United States was not 
     substantially justified. Whether or not the position of the 
     United States was substantially justified shall be determined 
     on the basis of the record (including the record with respect 
     to the action or failure to act by the agency upon which the 
     civil action is based) which is made in the civil action for 
     which fees and other expenses are sought.''; and
       (C) in paragraph (3), by striking ``, unless the court 
     finds that during such adversary adjudication the position of 
     the United States was substantially justified, or that 
     special circumstances make an award unjust''.
       (g) Reports to Congress.--
       (1) Administrative proceedings.--No later than 180 days 
     after the date of the enactment of this Act, the 
     Administrative Conference of the United States shall submit a 
     report to Congress--
       (A) providing an analysis of the variations in the 
     frequency of fee awards paid by specific Federal agencies 
     under the provisions of section 504 of title 5, United States 
     Code; and
       (B) including recommendations for extending the application 
     of such sections to other Federal agencies and administrative 
     proceedings.
       (2) Judicial proceedings.--No later than 180 days after the 
     date of the enactment of this Act, the Department of Justice 
     shall submit a report to Congress--
       (A) providing an analysis of the variations in the 
     frequency of fee awards paid by specific Federal districts 
     under the provisions of section 2412 of title 28, United 
     States Code; and
       (B) including recommendations for extending the application 
     of such sections to other Federal judicial proceedings.
       (h) Effective Date.--The provisions of this Act and the 
     amendments made by this Act shall take effect 30 days after 
     the date of the enactment of this Act and shall apply only to 
     an administrative complaint filed with a Federal agency or a 
     civil action filed in a United States court on or after such 
     date.
                                 ______
                                 
      By Mr. CAMPBELL:
  S. 1614. A bill to require a permit for the making of motion picture, 
television program, or other form of commercial visual depiction in a 
unit of the National Park System or National Wildlife Refuge System; to 
the Committee on Energy and Natural Resources.


             THE NATIONAL PARK SERVICE IMAGE PERMIT FEE ACT

  Mr. CAMPBELL. Mr. President, today I introduce a bill that gives our 
National Park Service the authority to require fee-based permits for 
the use of the parks in the making of motion pictures, television 
programs, advertisements or other commercial purposes.
  Our national parks are among our nation's most valuable resources. My 
``National Park Service Image Fee Permit Act'' would help us to protect

[[Page S454]]

them and ensure that future generations will be able to enjoy their 
beauty by making sure the parks are reimbursed for their commercial 
use.
  The Bureau of Land Management and the Forest Service already have a 
similar permit and fee system for commercial filming on public lands. 
Rocky Mountain National Park in my home state of Colorado has had 
twenty-five commercial filming operations take place between 1996-1997. 
According to park supervisors many individuals in the entertainment 
business are shocked at the fact that they are not currently charged 
for the use of our great national parks.
  It makes no sense that our national parks' lands, that have been 
deemed to be even more precious by their designation, should be used 
commercially for free. This is especially important now when taxpayers 
are facing increased fees to enter the national parks and more and more 
people are enjoying our natural wonders every year in record numbers.
  As the Vice-Chairman of the Parks, Historic Preservation and 
Recreation Subcommittee of the Senate Energy and Natural Resources 
Committee, I am concerned about the maintenance backlog that exists in 
most of our national parks. It is also no secret that the amount of 
federal tax dollars available for that maintenance has been dwindling 
for some time now.
  I offer this bill as a funding vehicle for our parks to reimburse 
them for the administrative costs they incur by allowing the images of 
our precious national parks to be used in commercial ventures. This 
bill will not provide all of the funds needed to address the 
maintenance backlog in our parks, nor do I intend it to, but it will 
defray the real costs associated with making our parks available for 
commercial enterprises such as the motion picture industry.
  We can all understand why Hollywood or book publishers want to use 
the spectacular beauty of our national parks as backdrops for their 
productions. My bill simply allows the National Park Service to recover 
the real costs of allowing such use and devoting those fees to the 
parks for their preservation. Common sense directs us to do this, and I 
believe this bill is fair for the commercial users of our parks and 
more importantly, for the American taxpayers.
  This bill is similar to legislation introduced in the House of 
Representatives by my friend and colleague from Colorado, Congressman 
Hefley.
  Mr. President, I have a letter from the National Parks and 
Conservation Association that has reviewed and endorsed this 
legislation. I look forward to working with the Association, other 
interested parties and, of course, the Committee, to deal with the 
maintenance backlog at our national parks.
  I ask unanimous consent that the National Parks and Conservation 
Association letter of support and my bill be inserted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1614

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

     SECTION 1. PERMITS FOR MAKING COMMERCIAL VISUAL DEPICTIONS IN 
                   UNITS OF THE NATIONAL PARK SYSTEM AND NATIONAL 
                   WILDLIFE REFUGE SYSTEM.

       (a) Definitions.--In this section:
       (1) Commercial visual depiction.--
       (A) In general.--The term ``commercial visual depiction'' 
     means a visual depiction that a person produces with the 
     intention that the depiction (or reproductions of the 
     depiction) will be disseminated to the public in connection 
     with a for-profit enterprise.
       (B) Exclusions.--The term ``commercial visual depiction'' 
     does not include--
       (i) a visual depiction produced for dissemination to the 
     public as news; or
       (ii) a visual depiction produced by an individual in a 
     limited number and intended to be sold by the individual as a 
     work of art.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (3) Visual depiction.--The term ``visual depiction'' means 
     a motion picture, television program, videotape, photograph, 
     or other form of visual depiction or any part of such a 
     depiction.
       (b) Permit Requirement.--A person shall not produce a 
     commercial visual depiction in a unit of the National Park 
     System or National Wildlife Refuge System without first 
     obtaining a permit from the Secretary and paying a permit 
     fee.
       (c) Regulation.--The Secretary shall by regulation 
     establish criteria and a procedure for determining the 
     conditions under which a person shall be permitted to produce 
     a commercial visual depiction in a unit of the National Park 
     System or National Wildlife Refuge System and the amount of a 
     permit fee.
       (d) Fee Amounts.--
       (1) Basis of imposition.--A permit fee may be imposed--
       (A) in a single amount for use of any part of a unit of the 
     National Park System and National Wildlife Refuge System or 
     in different amounts for use of different areas within a 
     unit;
       (B) in different amounts for different forms of visual 
     depiction; or
       (C) in a set amount applicable in all cases or in a 
     negotiated amount applicable in a particular case.
       (2) Amount.--
       (A) Minimum amount.--The amount of a permit fee shall be 
     not less than an amount that is sufficient to compensate the 
     Secretary for all direct and indirect costs to the Secretary 
     in accommodating the production of a commercial visual 
     depiction (including costs of ensuring compliance with any 
     conditions on the use of the area for production of the 
     commercial visual depiction and costs of cleanup and 
     restoration).
       (B) Other considerations.--In establishing the amount of a 
     permit fee, the Secretary shall take into consideration--
       (i) the extent of any inconvenience to the public that 
     production of the commercial visual depiction may cause; and
       (ii) an estimate of the amount that an owner of private 
     property would charge for use of property that is comparable 
     to the area in which the commercial visual depiction is to be 
     produced.
       (e) Civil Penalty.--A person that produces a commercial 
     visual depiction in a unit of the National Park System or 
     National Wildlife Refuge System without first obtaining a 
     permit and paying a permit fee or that fails to comply with 
     any condition stated in a permit shall be subject to 
     imposition by the Secretary, after notice and opportunity for 
     a hearing on the record, of a civil penalty in an amount not 
     exceeding 200 percent of the amount of the permit fee.
       (f) Use of Proceeds.--Each amount collected by the 
     Secretary as a permit fee or civil penalty under this section 
     shall be retained by the Secretary and shall be available, 
     without further Act of appropriation, for capital improvement 
     and restoration activities in the unit in which the 
     commercial visual depiction was produced.
                                  ____

                                                    National Parks


                                 and Conservation Association,

                                                 February 3, 1998.
     Hon. Ben Nighthorse Campbell,
     U.S. Senate, Washington, DC.
       Dear Senator Campbell: I am writing to applaud your efforts 
     to resolve a small but nettlesome issue affecting both the 
     national parks and the American taxpayer.
       For years, Hollywood and Madison Avenue production 
     companies have been able to avail themselves of the unique 
     resources of the national parks at well below market prices. 
     In fact, film production companies have been required to 
     cover only the physical cost of monitoring their activities 
     and any remediation necessary after they leave the site. In 
     many cases, this amount has totaled in the hundreds of 
     dollars, compared with production budgets that total in the 
     tens of millions of dollars and more.
       At a time when the Congress has directed the National Park 
     Service to do more in collecting entrance and recreation fees 
     from park visitors, the current requirements for film 
     production fees are patently unfair and must be changed. Your 
     legislation represents a step forward in this regard and will 
     contribute substantially to this issue as it is debated in 
     this congress.
       Again, I want to thank you for your efforts. With your 
     help, the parks will finally enjoy a more balanced financial 
     relationship with private film production companies.
           Sincerely,
                                                Thomas C. Kiernan,
                                                        President.
                                 ______
                                 
      By Mr. CLELAND (for himself, Mr. Coverdell, Mr. Helms, and Mr. 
        Glenn):
  S. 1615. A bill to present a gold medal to Len ``Roy Rogers'' Slye 
and Octavia ``Dale Evans'' Smith; to the Committee on Banking, Housing, 
and Urban Affairs.


                  CONGRESSIONAL GOLD MEDAL LEGISLATION

   Mr. CLELAND. Mr. President, today we are introducing 
legislation which would authorize presentation of a Congressional Gold 
Medal to Len ``Roy Rogers'' Slye and Octavia ``Dale Evans'' Smith. 
``Heroes are made every little while,'' Will Rogers once said, ``but 
only one in a million conduct themselves afterwards so that it makes us 
proud that we honored them at the time.'' The gold medal we propose 
would honor two American heroes for the wholesome entertainment they 
have given the world for six decades and for the shining example they 
have set as role models for America's youth. I am pleased to be joined 
by the distinguished cosponsors, Senators Coverdell, Helms, and Glenn.

  For generations of Americans, Roy Rogers has been the symbol of the 
Western hero--a man who combines

[[Page S455]]

courage with honesty and impeccable integrity--who always righted wrong 
through straight talk and square-dealing. When asked about the roles he 
played on-screen, Roy once answered that he did ``what I was supposed 
to do. I played myself. * * * When I talk about my image, there isn't 
anything that isn't really me. I always try to be the best that I can 
be.'' In all that we have seen or heard or read about Roy Rogers, on 
screen or off, the persona and the man are indeed one and the same--and 
in Roy Rogers we see what is best about America.
  Dale Evans counts among her highest honors the Cardinal Terrence Cook 
Humanities Award and the California Mother of the Year. Both are 
tributes to two of her greatest gifts--her generosity of spirit and her 
strong family values. Together she and Roy have raised nine children, 
and they have sixteen grandchildren and 30 great-grandchildren. And the 
fact that most of them live near Roy and Dale's ranch outside of 
Victorville, California, is a testament to their devotion and strong 
family ties. Dale is the author of 25 books. Her most famous, ``Angel 
Unaware'', chronicles the life and death of Dale and Roy's daughter, 
Robin, who died from complications of Down's syndrome. The book is 
about loss, but it is also about the capacity to love--a quality which 
both Dale and Roy have in abundant measure.
  Roy and Dale are an American institution--and their fans span the 
globe. Together they have achieved the pinnacle of success in the 
entertainment industry. Their movies were No. 1 at the box office. 
Their television series was the highest rated of its time. The episodes 
have been translated into every major language, and they can still be 
seen here in America and in markets abroad. Between the two of them 
they have set appearance records in every major arena in the world, 
including Madison Square Garden, the Los Angeles Coliseum, the Chicago 
Stadium, the Harringay Arena in London, and Toronto's Canadian National 
Exhibition. Roy once sold out Madison Square Garden 29 straight nights, 
and he still holds the record for the largest crowd ever to see an 
indoor rodeo.
  It has been said that we make a living by what we get, but we make a 
life by what we give. Both Roy and Dale's careers have been an 
unqualified success, as their world-wide appeal attests. But this tells 
only half the story. Their appeal--which reaches to all four corners of 
the globe--is also the result of the values, the ethics, and the 
uncompromising principles by which they have lived their lives. It is 
our hope that we honor their worthy contributions with the 
Congressional Gold Medal. Should we do so, we will have honored in 
their time true American heroes, and our choice--to use Will Rogers' 
yardstick--will be validated by the ages to come.
  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. 1615

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

     SECTION 1. CONGRESSIONAL GOLD MEDAL.

       (a) Presentation Authorized.--The President is authorized 
     to present, on behalf of the Congress, a gold medal of 
     appropriate design to Len ``Roy Rogers'' Slye and Octavia 
     ``Dale Evans'' Smith in recognition of their accomplishments 
     as entertainers and humanitarians, which include--
       (1) careers in the entertainment industry that spanned 6 
     decades and covered such industries as music, film, 
     television, writing, sports, and radio;
       (2) acting in and producing more than 100 films, as well as 
     their popular 10-year television show ``The Roy Rogers 
     Show'', which is still seen in American and foreign markets;
       (3) setting appearance records in virtually every major 
     arena in the world, including Madison Square Garden in New 
     York City, the Houston Fat Stock Show, the Los Angeles 
     Coliseum, the Chicago Stadium, the Harringay Arena in London, 
     Toronto's Canadian National Exhibition, and many State fairs 
     and rodeos;
       (4) on the part of Len Slye, once selling out Madison 
     Square Garden 29 straight nights, holding the record for the 
     largest crowd to ever see an indoor rodeo, and twice 
     attracting more than 100,000 people to rodeos in the Los 
     Angeles Coliseum;
       (5) selfless service as role models through their strong 
     faith in Christianity as well as their devotion to their 9 
     children (5 by adoption and 4 by birth), 16 grandchildren, 
     and 30 great-grandchildren;
       (6) Octavia Smith's classic book ``Angel Unaware'', which 
     dealt with the death from complications associated with 
     Down's syndrome of Robin, the one child Len Slye and Octavia 
     Smith had together; and
       (7) creating the Roy Rogers-Dale Evans Museum in 
     Victorville, California, that vividly chronicles their lives 
     and the values and ethics that represent the basis of their 
     worldwide appeal.
       (b) Design and Striking.--For the purpose of the 
     presentation referred to in subsection (a), the Secretary of 
     the Treasury (hereafter in this Act referred to as the 
     ``Secretary'') shall strike a gold medal with suitable 
     emblems, devices, and inscriptions, to be determined by the 
     Secretary.

     SEC. 2. DUPLICATE MEDALS.

       The Secretary may strike and sell duplicates in bronze of 
     the gold medal struck pursuant to section 1 under such 
     regulations as the Secretary may prescribe, and at a price 
     sufficient to cover the costs of the medals, including labor, 
     materials, dies, use of machinery, and overhead expenses.

     SEC. 3. NATIONAL MEDALS.

       The medals struck pursuant to this Act are national medals 
     for purposes of chapter 51 of title 31, United States Code.

     SEC. 4. FUNDING AND PROCEEDS OF SALE.

       (a) Authorization.--There is hereby authorized to be 
     charged against the United States Mint Public Enterprise Fund 
     an amount not to exceed $30,000 to pay for the cost of the 
     medals authorized by this Act.
       (b) Proceeds of Sale.--Amounts received from the sale of 
     duplicate bronze medals under section 3 shall be deposited in 
     the United States Mint Public Enterprise Fund.
                                 ______
                                 
      By Mr. BAUCUS:
  S. 1616. A bill to authorize the exchange of existing Federal oil and 
gas leases in the State of Montana, located in the Lewis and Clark 
National Forest and the Flathead National Forest, for credits in future 
Federal oil and gas lease sales in the Gulf of Mexico, and for other 
purposes; to the Committee on Energy and Natural Resources.


                          exchange legislation

  Mr. BAUCUS. Mr. President, I am pleased today to introduce a Bill 
that would provide the Secretary of the Interior with the authority to 
exchange oil and gas leases in the Badger Two-Medicine area, in the 
State of Montana, for credits that could be applied toward bidding or 
royalty payments in Montana and the Gulf of Mexico.
  The area involved in this legislation is located along the Rocky 
Mountain Front, an area whose rich natural beauty I care deeply about. 
It lies south of one of the ``Crown Jewels'' of the National Park 
system, Glacier National Park. Also adjoining this area is the 
Blackfeet Indian Reservation and the uniquely wild and pristine Bob 
Marshall Wilderness Area. The Badger Two-Medicine area is undeveloped 
wilderness and contains many sites sacred to the Blackfeet Nation. The 
location of this area, its cultural value, and its undeveloped natural 
condition has been the focus of the decade-long debate over whether or 
not the oil and gas resources of the area should be developed. I myself 
believe that we should protect this special place for our children and 
grandchildren, and I have fought to do just that.
  We are no closer today to resolving the question of development of 
the resources of this area than we were a decade ago and it is time to 
resolve these conflicts. During this time the ten leaseholders in the 
area have made investments in anticipation of being able to exercise 
the option of developing wells under their leases. The time has come to 
break this stalemate that only costs the leaseholders, the citizens 
concerned with protecting the area, and the government time and money 
without resolution. The bill that I am introducing today is fair for 
the landowners, the citizens of Montana and the Nation, and fair for 
the leaseholders.
  Chevron, the largest leaseholder in the area, stated ``While we would 
have liked to have developed our well in the Badger Two-Medicine area, 
we understand that the public had concerns about our proposal. Senator 
Baucus' bill breaks the deadlock and allows everyone to get on with 
their business''.
  Today I am introducing this legislation, a common sense solution to a 
long-standing controversy, to allow all the parties to leave this 
dispute as winners. The Secretary of the Interior would work with 
leaseholders, who have made investments over the years, to determine 
credits for their expenses. These credits, allowing for reinvestment in 
Montana, can be applied to lease bids or royalty payments in other 
locations where they already have active wells or where development is

[[Page S456]]

more likely to occur. The citizens who are concerned about the cultural 
and resource effects of development would see the integrity of this 
area maintained. The government would be able to refocus the use of its 
limited financial resources on management activities that have a more 
direct positive result than continuation of the current disputes.
  This bill focuses on resolving Montana problems while looking out for 
the economic and natural resource interests of this State. Creating and 
maintaining jobs in Montana is very important to me. This bill helps 
save jobs. As Richard Jackson, owner of an outfitting business in the 
Badger Two-Medicine recently said, ``This bill isn't just about saving 
some of our most precious wildlands; it's about saving our wildlands 
and Montana jobs''. Montana has a unique recreational industry that has 
sustainable jobs that are dependent on wild untamed lands. We need to 
care for this wildness. I look forward to continuing work with the 
Governor and the Montana Delegation on innovative ideas to stimulate 
appropriate development of the State's rich mineral heritage while 
protecting its wildness and uncomparable natural beauty.
  I encourage my esteemed colleagues to support this bill and look 
forward to working with them in their consideration.
  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. 1616

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

     SECTION 1. EXCHANGE OF OIL AND GAS LEASES IN THE LEWIS AND 
                   CLARK NATIONAL FOREST AND THE FLATHEAD NATIONAL 
                   FOREST, STATE OF MONTANA.

       (a) In General.--Notwithstanding any other provision of 
     law, the Secretary of the Interior may exchange Federal oil 
     and gas leases that are in existence and in good standing as 
     of the date of enactment of this Act and are located in the 
     exchange area described in subsection (b) for credits that 
     may be used--
       (1) for bids in Federal oil and gas lease sales or for 
     royalty and rentals due under Federal leases in the central 
     and western planning areas of the Gulf of Mexico for leases 
     outside the zone defined and governed by section 8(g)(2) of 
     the Outer Continental Shelf Lands Act (43 U.S.C. 1337(g)(2)); 
     or
       (2) for bid, royalty, or rental payments due under Federal 
     oil and gas leases on Federal land within the State of 
     Montana.
       (b) Exchange Area.--The exchange area referred to in 
     subsection (a) consists of--
       (1) the portions of the Lewis and Clark National Forest and 
     the Flathead National Forest in Flathead County, Glacier 
     County, and Pondera County, Montana (including the area known 
     as the ``Badger-Two Medicine''), as delineated on the map 
     entitled ``Exchange Area Map'' and located in T. 27 N., R. 11 
     W., T. 28 N., R. 10-14 W., T. 29 N., R. 10-16 W., T. 30 N., 
     R. 11-13 W., and T. 31 N., R. 12-13 W.; and
       (2) the area covered by Federal oil and gas lease no. MTM-
     53314, in Teton County, Montana.
       (c) Amount.--The amount of the credits shall be based on 
     investments made in the acquisition and development of the 
     leases before the date of enactment of this Act and agreed to 
     by the Secretary of the Interior and the leaseholder.
       (d) Withdrawal From Mineral Laws.--Subject to valid 
     existing rights not relinquished, the exchange area described 
     in subsection (b)(1) is withdrawn from location and entry 
     under the mining laws and from leasing under the mineral 
     leasing laws.
       (e) Effect of Use of Credits.--If a person that receives a 
     credit under subsection (a) uses the credit to pay any rental 
     or royalty due under any Federal oil and gas lease on Federal 
     land within the State of Montana, the Secretary of the 
     Interior shall pay the State of Montana, from amounts 
     received from oil and gas leases on Federal land that, but 
     for this subsection, would be deposited in the Treasury of 
     the United States under section 35 of the Act of February 25, 
     1920 (commonly known as the ``Mineral Lands Leasing Act'') 
     (41 Stat. 450, chapter 85; 30 U.S.C. 191), the amount that 
     the State would have received under applicable law if the 
     amount of the royalty or rental had been paid in cash.

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