Congressional Record, Volume 144 Issue 65 (Wednesday, May 20, 1998)

[Congressional Record Volume 144, Number 65 (Wednesday, May 20, 1998)]
[Senate]
[Pages S5218-S5237]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. ALLARD (for himself and Mr. Chafee):
S. 2094. A bill to amend the Fish and Wildlife Improvement Act of
1978 to enable the Secretary of the Interior to more effectively use
the proceeds of sales of certain items; to the Committee on Environment
and Public Works.

FISH AND WILDLIFE REVENUE ENHANCEMENT ACT OF 1998

Mr. ALLARD. Mr. President, I am introducing a bill today to amend the
Fish and Wildlife Improvement Act of 1978.
This bill will allow the Secretary of the Interior and the Secretary
of Commerce to more effectively use proceeds from the sale of forfeited
and abandoned wildlife items.
Mr. President, there is a warehouse in Commerce City, Colorado,
operated by the U.S. Fish and Wildlife Service, which is filled with
wildlife parts and products.
It is the National Repository for items that have been forfeited or
abandoned to the U.S. Government and are being held for disposition by
the Service.
Some of these items are quite unusual: mounted rhinoceros, coral
jewelry, stuffed alligators, elephant foot footstools.
Some of these items are endangered or otherwise protected by law, and
it is illegal to import them into the United States.
Those companies or individuals who were caught trying to do so either
abandoned the items or they were forfeited to the U.S. Government
through a legal process.
The Service distributes these wildlife items to museums and to
schools for conservation education programs around the country.
Anyone who flew through Denver's old Stapleton Airport, for instance,
might have seen a display in the main terminal reminding travelers
about various laws regulating importation of wildlife and wildlife
products.
A similar display is being erected at Denver International Airport.
In addition to the unusual wildlife specimens stored at the Service's
Colorado Repository are some more familiar items such as leather boots,
jackets, purses, watchbands, and sea shells.
These are in the possession of the Service because, in many cases,
the required foreign export permits were not obtained or the items were
falsely identified.
Although it is legal to possess and sell many of these wildlife
items, there is, of course, a procedure for importing them. This
includes obtaining the required foreign export permits prior to
importation and properly declaring the items.
If these procedures are not followed correctly, then the items can be
seized.
Abandonment or forfeiture actions are then initiated with title being
transferred to the Government.
Many times, however, the people who try to bring them in will just
abandon them to the Service.
These items are retained by the Service at the Commerce City facility
until an appropriate disposition can be made.
I want to take just a moment here to point out that the Repository in
question is located on the Rocky Mountain Arsenal northeast of Denver.
This inactive military facility is in the middle of a transformation
from a Superfund site to the largest urban wildlife refuge in the
country.
The Arsenal, which once produced nerve agents and chemical weapons,
is now a haven for eagles, migratory birds, deer, and other wildlife.
I've been told that there is hope to one day introduce bison back
into the 27 square mile facility.
The old Arsenal will become a new gem in the National Wildlife Refuge
System, and an excellent resource for the people of Colorado.
A Service priority for disposing of these wildlife items is to
utilize them in scientific and educational programs.
There are, however, many items in the Repository inventory excess to
the needs of these scientific and educational programs.
Those excess items which are not given a high level of protection--
those that are not endangered, or marine mammals, or migratory birds--
can legally be sold on the open market.
If these surplus items were sold by the Service at an auction, they
would generate proceeds which could be used to offset operational costs
of the Repository, thereby allowing for a more efficient use of
appropriated funds by the Service and a saving of money for the tax
payers.
But there is a hitch. Current law mandates proceeds from the sale
except for those that can be used for rewards, must be returned to the
General Treasury.
This sounds fine, until you consider the mechanics of holding an
auction.
An auctioneer charges a commission which is usually a percentage of
the proceeds from a sale.
Since the Service estimates that they have about one million-dollars
worth of surplus wildlife items on hand, which is a 10 year backlog,
they can expect to pay the auctioneer a commission of around 15 percent
or about $150,000.
Now, the budget for the Repository in Fiscal Year 1998 is $310,000
with salaries alone costing 80 percent of that number. They simply
cannot pay about half of their funding towards an auctioneer's
commission, and that is what they would have to do under current law.
Although a sale would bring in money, the majority of the proceeds
would go to the General Treasury, and the Service would have to use
money already in their operational budget to pay for the sale.
Needless to say, there are not enough funds to pay the auctioneer's
commission, so the auction does not take place and the wildlife
property sits and decays.
What this bill would do is allow the Fish and Wildlife Service, and
the National Marine Fisheries Service under the Commerce Department, to
keep the proceeds from the selling of wildlife products at an auction.
The money would be used for very specific purposes.
These purposes, except for one, are all related to the task of
storing, shipping and disposing of the forfeited and abandoned items
located around the country.
The other uses of the funds I will explain in just a minute.
This bill specifically says that the Services can use the proceeds of
the sale for:
(1) Shipping items from one location to another;
(2) Storage and security of the items;
(3) Appraisal of the items;
(4) Sale of the items--this is necessary to pay an auctioneer's
commission; and
(5) Payment of any valid liens against the objects.
As you can see, this will not allow the Services to establish a slush
fund for their use.
The bill requires the money may be used only to continue paying for
rewards, storage and shipping of the property, and to facilitate the
disposal of the items, thereby making them available for the people of
the United States.
The other use for the proceeds is very special.
The U.S. Fish and Wildlife Service administers a program that
provides for the distribution of dead eagles to Native Americans so
they may be used for religious and cultural purposes.
As you probably know, bald and golden eagles are highly protected and
it is illegal for anyone to kill an eagle or possess an eagle carcass
or its feathers.
The way the program is set up, dead eagles are sent to the National
Eagle Repository, which is also located on Rocky Mountain Arsenal in
Commerce City, Colorado.
There they are cataloged, processed, and shipped to Native Americans.
Even though the Repository distributes about 1,000 eagles to Native
Americans each year, there is currently about a three year wait to
receive an eagle carcass. This is because of the limited number of
eagles being received at the Repository.
Most have been trapped, or electrocuted, or have collided with power
lines and cars--they are not in very good shape.
When an eagle is received by the Repository, attempts are made to
match

[[Page S5219]]

the type of eagle with that being requested, i.e. bald or golden,
immature or mature.
Requests for individual feathers are also filled.
The Repository is so concerned about customer service that they will
replace any broken or missing feathers with whole ones from another
bird.
The cost to box and ship an eagle is about $50. This cost is absorbed
by the Service rather than being passed on to the Native Americans.
This bill will allow the Fish and Wildlife Service to use the
proceeds from an auction to assist the eagle program by paying for
boxes, dry ice, and other costs associated with shipping the eagles.
For instance, some of the proceeds could also be used to purchase
chest freezers to be placed in regional collection points.
This would be for short term storage of the eagles near where they
are initially found.
This would hopefully increase the number of eagles being sent to the
Repository and subsequently increase the number being shipped to the
Native Americans, thereby reducing the waiting period to receive an
eagle.
Before I close here, let me stress--the auctions will only be selling
wildlife items that are legal to possess and sell in the U.S., items
like boots, belts, wallets, purses, shell products, etc.
These items have a valid place on the U.S. market.
Items that have a higher scientific or educational value will be
distributed to museums and schools.
No products from endangered species, eagles, marine mammals, or
migratory birds will be sold.
The Fish and Wildlife Improvement Act already gives the authority to
sell those items that are surplus for scientific and educational needs.
The Act is silent, however, as to what happens to the proceeds from
the sale of abandoned items, so by default they go to the General
Treasury.
The Services are therefore precluded from being able to utilize these
funds.
If this bill is enacted, the proceeds from the sale of forfeited and
abandoned items will aid in the shipping, storing, and disposing of
wildlife products to scientific and educational programs and the
distribution of eagles to Native Americans for religious and ceremonial
purposes.
I hope this bill can be moved quickly in the Senate.
Mr. CHAFEE. Mr. President, I am pleased to cosponsor this bill with
my colleague Senator Allard. This bill represents a move towards
efficient use of government funds, and support for the valuable
programs carried out with those scarce funds. The bill would initially
generate approximately $1 million for the Service through the sale of
items derived from fish and wildlife that are currently stored by the
Service. This money would be used to cover the costs of disposing of
these items--which is now a financial drain on the Service--and to fund
programs that loan these items to schools and Native American groups
for educational and religious purposes.
Each year, the Fish and Wildlife Service (Service) receives hundreds
of thousands of items derived from fish, wildlife and plants, such as
skins, furs, feathers, jewelry, etc. These items can be seized,
forfeited or abandoned during enforcement of Federal wildlife laws, and
they are eventually shipped to the National Wildlife Property
Repository in Colorado. The Repository currently has about 150,000
items, with about 50,000 items stored elsewhere.
Under current law, the Service may dispose of fish, wildlife or other
items forfeited or abandoned to the U.S. government, either by loan,
gift, sale or destruction. There are certain restrictions on disposal
of those items. For example, items made from threatened or endangered
species, marine mammals and migratory birds cannot be sold according to
the laws that apply to those particular species.
Revenue from the sale of forfeited items go to the Service for
certain program operations; however, revenue from the sale of abandoned
items go to the General Treasury, and are not available to the Service.
More than 90 percent of the fish and wildlife items are abandoned, so
that the Service would receive very little revenue from sales of these
items. Indeed, under current law, the costs of selling these items
would outweigh any revenue, so that the Service has no incentive to
sell them.
The Service must further expend funds for the shipment, storage and
disposal of the items that it acquires. In addition, the Service will
make many of these items--those that cannot be sold under law--
available for Native American religious and ceremonial purposes,
educational purposes, and research, but must expend its own funds to do
so. The Repository was appropriated $310,000 for operations last year.
After overhead, only $61,000 was available for disposal of these items.
Disposal includes two programs in particular. The first, known as
Cargo for Conservation, provides wildlife specimens to schools for
educational programs. Under this program, the Service has distributed
almost 400 educational kits to various organizations. The second
program provides eagle carcasses and parts to Native Americans for
religious and ceremonial purposes. Under this program, the Service has
filled almost 1,500 requests for eagles, eagle parts and other raptors
in 1997 alone, although there is currently a two year backlog in
filling orders for some eagle carcasses.
The bill would specifically amend the Fish and Wildlife Improvement
Act in two ways. First, it would authorize the deposit of proceeds from
the sale of forfeited and abandoned items into Service accounts rather
than into the general treasury. Second, it would expand the use of
funds received through these sales to include costs incurred by
shipping, storage and disposal of these items, as well as payment of
any liens on these items.
I would like to note that this bill does not change existing
authority with respect to items that may be sold by the Service. It
does not allow the sale of items derived from threatened and endangered
species, marine mammals, or migratory birds. The Service already has
authority to sell certain items for which it is lawful to do so. This
bill merely allows the Service to keep revenues derived from any items
it sells, and to use those revenues for certain programs. This is a
bill representing efficient use of government funds.
At the same time, this bill is not intended to imply that the Service
should sell everything that it lawfully can in order to maximize
profits. It is my understanding that the Service has no intention to
sell items derived from sensitive species, including those that are
candidates for listing as endangered or threatened. It is also my
expectation that, in considering which items to sell, the Service would
take into account the biological status of any species used for that
item, and any implications that the sale may have for conservation
efforts relating to that species. For example, any sale by the Service
should not encourage new markets that may undermine protections
elsewhere. Lastly, the Service should ensure that the sale of these
items does not undermine enforcement efforts within the U.S.
In summary, I am pleased to cosponsor this bill with Senator Allard.
Our staffs have worked closely with each other and with the
Administration in drafting this legislation, and I look forward to
working on this bill in the future.
______

By Mr. CHAFEE (for himself, Mr. Kempthorne, Mr. Lott, Mr.
Daschle, Mr. Baucus, Mr. Breaux, Mr. Graham, Mr. Wyden, Mr.
Smith of New Hampshire, Mr. Sarbanes, Mr. Warner, Mr. Stevens,
Ms. Snowe, Ms. Collins, Mr. Bond, Mrs. Murray, and Mr.
Domenici):
S. 2095. A bill to reauthorize and amend the National Fish and
Wildlife Foundation Establishment Act; to the Committee on Environment
and Public Works.

national fish and wildlife foundation establishment act amendments of
1998

Mr. CHAFEE. Mr. President, today I introduce legislation to
reauthorize the National Fish and Wildlife Foundation Establishment Act
of 1984. This legislation makes important changes in the Foundation's
charter, changes that I believe will allow the Foundation to build on
its fine record of providing funding for conservation of our nation's
fish, wildlife, and plant resources.

[[Page S5220]]

The National Fish and Wildlife Foundation was established in 1984, to
bring together diverse groups to engage in conservation projects across
America and, in some cases, around the world. Since its inception, the
Foundation has made more than 2,300 grants totaling over $270 million.
This is an impressive record of accomplishment. The Foundation has
pioneered some notable conservation programs, including implementing
the North American Waterfowl Management plan, Partners in Flight for
neotropical birds, Bring Back the Natives Program, the Exxon Save the
Tiger Fund, and the establishment of the Conservation Plan for Sterling
Forest in New York and New Jersey, to name just a few.
Mr. President, the Foundation has funded these programs by raising
private funds to match federal appropriations on at least a 2 to 1
basis. During this time of fiscal constraint this is an impressive
record of leveraging federal dollars. Moreover, all of the Foundation's
operating costs are raised privately, which means that federal and
private dollars given for conservation is spent only on conservation
projects.
I am proud to count myself as one of the ``Founding Fathers'' of the
National Fish and Wildlife Foundation. In 1984, I, along with my
colleagues Senators Howard Baker, George Mitchell, and John Breaux, saw
the need to create a private, nonprofit group that could build public-
private partnerships and consensus, where previously there had only
been acrimony and, many times, contentious litigation.
The National Fish and Wildlife Foundation has more than fulfilled the
hopes of its original sponsors. It has helped to bring solutions to
some difficult natural resource problems and is becoming widely
recognized for its innovative approach to solving environmental
problems. For example, when Atlantic salmon neared extinction in the
U.S. due to overharvest in Greenland, the Foundation and its partners
bought Greenland salmon quotas. I and many others in Congress want the
Foundation to continue its important conservation efforts. So, today I
am introducing amendments to the Foundation's charter that will allow
it to do just that.
Mr. President, this legislation is quite simple. It makes three key
changes to current law. First, the bill would expand the Foundation's
governing Board of Directors from 15 members to 25 members. This will
allow a greater number of those with a strong interest in conservation
to actively participate in, and contribute to, the Foundation's
activities.
The bill's second key feature authorizes the Foundation to work with
other agencies within the Department of the Interior and the Department
of Commerce, in addition to the Fish and Wildlife Service and the
National Oceanic and Atmospheric Administration. Mr. President, it is
my view that the Foundation should continue to provide valuable
assistance to government agencies within the Departments of the
Interior and Commerce that may be faced with conservation issues.
Finally, it would reauthorize appropriations to the Department of the
Interior and the Department of Commerce through 2003.
Mr. President, I believe that this legislation I introduce today will
produce real conservation benefits and I strongly urge my colleagues to
give the bill their support.
Mr. KEMPTHORNE. Mr. President, nearly fourteen years ago President
Reagan signed P.L. 98-244, an act to establish the National Fish and
Wildlife Foundation as a charitable, nonprofit corporation of the
United States specifically to further the conservation and management
of the Nation's fish, wildlife, and plant resources. Since that time,
the Foundation has funded more than 2,200 conservation projects through
their partnership and challenge grant program.
In the State of Idaho alone, the Foundation has funded nearly 100
projects worth over $19,000,000. The good news is that they have done
this work with only $5M of federal money. That is nearly a four to one
contribution from the private sector. In addition, there have been many
projects in adjacent States that benefit the Stat of Idaho.
But the Foundation has had its share of controversy. A Foundation
grant to the Pacific Rivers Council may have allowed the Pacific Rivers
Council to use other resources to nearly shut down the economy of
several counties in the State of Idaho. A federal judge shut down all
permitted activities in our national forests when the Pacific Rivers
Council brought suit against the United States Forest Service and the
National Marine Fisheries Service for failure to consider cumulative
impacts of permitted activities under the Endangered Species Act. The
two agencies could not agree on the extent and nature of the
consultations, so the Federal judge shut down all activities in our
national forests until they were in compliance. Even the plaintiffs in
the suit were surprised by the effect of their suit. They quickly
joined the effort to reverse the injunction and to have the two Federal
agencies agree on a solution.
Since then the Foundation has implemented procedures into its grant
contracts to prevent a recurrence of the devastating injunction
triggered by the Pacific Rivers Council. The Foundation has repeatedly
stated that ``it does not engage in lobbying or litigation and does not
allow its grants to be used for those activities.''
And, I recognize that the Foundation has provided grant monies to
support studies of grizzly bears and wolves in the Pacific Northwest.
However, in my review of those grants I am pleased to say that the
grants have been used to discover basic biological information about
these predators. The Foundation has produced educational materials,
backed research on the impacts of human activities, improved sanitation
and safety will bear-proof dumpsters, supported GIS mapping of bear
habitats, and brought in non-federal partners.
During the years I have been acquainted with the Foundation, I have
found that they work with the entire spectrum of interests to leverage
through private partners a limited amount of federal funding into
significant monies for conservation.
Mr. LOTT. Mr. President, today Senator Chafee, chairman of the Senate
Environment and Public Works Committee, has introduced legislation to
reauthorize the National Fish and Wildlife Foundation. I support the
Foundation and the activities it undertakes to further conservation and
management of our nation's fish and wildlife resources.
Created by Congress in 1984, the Foundation has forged a strong
relationship between government and corporate stakeholders, fostering
cooperation and coordination. It has been successful in bringing
private sector involvement, initiative and technology to bear in
solving conservation problems. With this reauthorization, the
Foundation's record of providing real on-the-ground conservation will
continue.
Mr. President, all federal money appropriated to the National Fish
and Wildlife Foundation must be matched by contributions from non-
federal sources: corporations, State and local government agencies,
foundations and individuals. The Foundation's operating policy is to
raise a match of at least 2 to 1, to maximize leverage for our federal
funds. With the financial assistance of the private sector and the
technical knowledge of the States, the Foundation can be both effective
and responsive to conservation needs.
All of the Foundation's projects are peer reviewed by agency staff,
state resource officials, and other professionals in the natural
resource field. No project is undertaken without the input and support
of the local community and state interests. The Foundation has also
initiated a process to solicit comments from members of Congress
concerning grants in a member's district or state.
Mr. President, one of the things that distinguishes the Foundation
from other conservation groups is its results in the field. The
Foundation has worked with over 700 agencies, universities, businesses
and conservation groups, both large and small, over the last decade.
These relationships have helped the Foundation become one of the most
effective conservation organizations in the nation.
In Mississippi, for example, the Foundation has supported local
habitat restoration projects to help private landowners install water
control structures to provide wintering habitat for migratory
waterfowl. Our farmers have learned that it also benefits weed control,
seed-bed preparation, prevention

[[Page S5221]]

of erosion--all at a lower cost. The Foundation has provided grants to
assist private landowners in restoring bottomland hardwood habitats
critical to migrating neotropical songbirds and other water-dependant
wildlife species. These efforts are helping to maintain the state's
original wetlands habitats.
Activities of the Foundation do produce real on-the-ground
conservation benefits for the resources of our nation. I ask that my
colleagues join me in supporting this legislation.
______

By Mr. INOUYE (for himself and Mr. Akaka):
S. 2096. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation with appropriate endorsement for
employment in the coastwise trade for the vessel Foilcat; to the
Committee on Commerce, Science, and Transportation.

CERTIFICATE OF DOCUMENTATION FOR THE VESSEL ``FOILCAT''

Mr. INOUYE. Mr. President, I am introducing a bill today to
direct that the vessel Foilcat, Official Number 1063892, be accorded
coastwise trading privileges for a fixed duration and be issued a
certificate of documentation under section 12103 of title 46, U.S.
Code.
The Foilcat was originally constructed in Norway, in 1992, and is a
hydrofoil vessel presently under renovation in a U.S. shipyard. It is
84.2 feet in length and is expected to be less than 100 U.S.C.G.
registered tons.
The vessel is owned by Steven Loui of Honolulu, Hawaii. Mr. Loui
would like to utilize his vessel to evaluate the use of hydrofoil
technology in the establishment of a high speed ferry demonstration
project. However, because the vessel was built in Norway, it did not
meet the requirements for coastwise license endorsement in the United
States.
The Hawaiian islands are exposed to high and rough surf and it is
incumbent that we utilize high speed technologies in order to overcome
the impediments of high surf and transportation distance requirements.
Foilcat utilizes advanced hydrofoil technologies enabling the vessel to
travel at high speeds while also providing safe and comfortable
passenger ferry service. Should this technology as applied in passenger
ferry service, prove successful, a series of these types of vessels
will be built in the U.S.--using U.S. workers. Mr. Loui is planning to
invest almost three times the amount of the vessel's purchase price in
repairs and upgrades in a U.S. shipyard. My reflagging request would be
for a limited time period, which would provide adequate time to
evaluate the use of this technology in the establishment of inter and
intra-island passenger ferry service.
The owner of the Foilcat is seeking a waiver of the existing law
because he wishes to use the vessel to evaluate high speed technology
in passenger ferry service. His desired intentions for the vessel's use
will not adversely affect the coastwise trade in U.S. waters. If he is
granted this waiver, it is his intention to comply fully with U.S.
documentation and safety requirements. The purpose of the legislation I
am introducing is to allow the Foilcat to engage in the coastwise trade
and the fisheries of the United States.
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. 2096

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

SECTION 1. LIMITED DURATION WAIVER OF COASTWISE TRADE LAWS.

(a) In General.--Notwithstanding sections 12106 and 12108
of title 46, United States Code, section 8 of the Passenger
Vessel Act (46 U.S.C. App. 289), and section 27 of the
Merchant Marine Act, 1920 (46 U.S.C. App. 883), the Secretary
of Transportation may issue a certificate of documentation
with appropriate endorsement for employment in the coastwise
trade for the vessel Foilcat, (United States Official Number
1063892).
(b) Termination.--The certificate issued under subsection
(a) shall be in effect for the vessel Foilcat for the
period--
(1) beginning on the date on which the vessel is placed in
service to initiate a high-speed marine ferry demonstration
project; and
(2) ending on the last day of the 36th month beginning
after the date on which it became effective under paragraph
(1).
______

By Mr. CAMPBELL:
S. 2097. A bill to encourage and facilitate the resolution of
conflicts involving Indian tribes, and for other purposes; to the
Committee on Indian Affairs.

indian tribal conflict resolution, tort claims, and risk management act
of 1998

Mr. CAMPBELL. Mr. President, today I introduce the Indian Tribal
Conflict Resolution, Tort Claims and Risk Management Act of 1998 to
continue the discourse on matters involving Indian tribal governments
such as providing a mechanism for the collection of legitimate state
retail sales taxes and affording a remedy to those persons injured by
the acts of tribal governments, or those acting on their behalf.
By introducing this legislation, I am hopeful that tribal leaders,
concerned parties, and those affected by the actions of tribal
governments can find some common ground and craft innovative solutions
to these issues which I believe will continue to hamper Indian tribes
unless dealt with appropriately.
It has been said that because of Indian tribal immunity from
lawsuits, states have no enforcement mechanism to collect state retail
taxes on transactions made to non-members. Similarly, opponents of
tribal immunity charge that tribal immunity prevents injured persons
from seeking legal recourse for their injuries.
The Supreme Court has held that on retail sales made to non-members,
Indian tribes are under a duty to collect and remit such state taxes.
The Court made it clear that there are numerous remedies available to
the states in such situations including suits against tribal officials;
levying the tax at the wholesale level before goods enter reservation
commerce; negotiating agreements with the tribes involved; and if these
prove unworkable, then seeking congressional action.
At least 18 states and numerous tribes have chosen the negotiations
route to settling their differences short of litigation and acrimony.
Testimony presented to the committee on March 11, 1998, revealed that
there are approximately 200 intergovernmental agreements between Indian
tribes and states providing for the collection and remittance by the
tribes of state sales taxes on sales made to non-members.
Rather than waive the immunity of all tribes--those who have chosen
to deal with the issue of taxation through agreement and those who have
not--the legislation I introduce today declares the policy of the
United States to be the reaffirmation of the federal obligation to
protect Indian tribes, people, and trust resources and property of
Indian tribes. In fulfilling that obligation, the United States should
make available the framework and machinery for the amicable settlement
and resolution of disputes, including tax matters, involving states and
Indian tribes.
The achievement of mutual agreements is the major objective of this
bill, and in addition to encouraging such agreements, this legislation
provides for the creation of an ``Intergovernmental Alternative Dispute
Resolution Panel'' to consider and render decisions on tax matters that
cannot be resolved through negotiation.
The panel will be composed of a five member team including
representatives of the Departments of Interior, Justice, and Treasury;
one representative of state governments; and one representative of
tribal governments. Rather than create a ``new'' mediation framework,
this bill relies on the existing Federal Mediation and Conciliation
Service to provide mediation services for such situations.

Title II of the bill is intended to provide a remedy in tort
situations for those tribes that are not covered by the Federal Tort
Claims Act, or covered by private secured liability insurance.
This title would require the Secretary of Interior to obtain or
provide tort liability insurance or equivalent coverage for each Indian
tribe that receives tribal priority allocations from the Bureau of
Indian Affairs (BIA).
Because many, if not most, Indian tribes maintain some type of
insurance coverage, the Secretary is obligated to determine the type
and adequacy of coverage already provided in order to avoid duplicative
or redundant coverage.
Significantly, and as is the case with insurance policies now in
place for

[[Page S5222]]

many tribal governments, the policy of insurance must contain a
provision prohibiting the carrier from raising the defense of sovereign
immunity with respect to any tort action filed involving the tribe. In
this way, injured persons would be afforded a remedy. Such policies
would also contain a provision precluding any waiver for pre-judgment
interest or punitive damages.
The Secretary would prescribe regulations governing the amount and
nature of claims covered by such insurance policy, and would also set a
schedule of premiums payable by any tribe that is provided insurance
under this bill.
Lastly, as Indian tribes have begun to re-develop their economies and
are beginning to assert their influence, issues and matters have
developed that should receive the attention of a full-time,
intergovernmental body to review and analyze such situations.
This legislation creates the ``Joint Tribal-Federal-State Commission
on Intergovernmental Affairs'' to thoughtfully and deliberately
consider matters such as law enforcement, civil and criminal
jurisdiction, taxation, transportation, economic development, and
related issues. Two years after enactment, the commission is required
to submit a report of its findings and recommendations to the
President, the Committee on Indian Affairs in the Senate, and the
Committee on Resources in the House of Representatives.
Finally, let me say that I do not agree with those who suggest that
the doctrine of tribal sovereign immunity is an anachronism and one no
longer deserving of protection. Several of the states, as well as the
federal government, have chosen to waive their immunity from suit in
very limited circumstances and under strict conditions.
It is simply inaccurate to suggest that tribal governments are the
last repository of immunity. Whether by limiting damage awards as some
states have done, or eliminating entire classes of activities that will
not trigger immunity waivers as the federal government has done in the
Federal Tort Claims Act, the doctrine of immunity is alive and well in
the United States.
That there are issues that need to be dealt with I agree; that the
way to address these issues is through involuntary, broad-based waivers
of immunity, I disagree heartily. I call on the quiet, thoughtful, and
reasonable people on both sides of these issues to craft solutions that
respects Indian tribal governments and yet provides reasonable
solutions for legitimate problems that do exist.
Mr. President, I ask that the contents of the legislation be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2097

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 ``Indian Tribal Conflict
Resolution and Tort Claims and Risk Management Act of 1998''.

SEC. 2. FINDINGS; PURPOSES.

(a) Findings.--Congress finds that--
(1) Indian tribal sovereignty predates the formation of the
United States and the United States Constitution;
(2) a unique legal and political relationship exists
between the United States and Indian tribes;
(3) through treaties, statutes, Executive orders, and
course of dealing, the United States has recognized tribal
sovereignty and the unique relationship that the United
States has with Indian tribes;
(4) Indian tribal governments exercise governmental
authority and powers over persons and activities within the
territory and lands under the jurisdiction of those
governments;
(5) conflicts involving Indian tribal governments may
necessitate the active involvement of the United States in
the role of the trustee for Indian tribes;
(6) litigation involving Indian tribes, that often requires
the United States to intervene as a litigant, is costly,
lengthy, and contentious;
(7) for many years, alternative dispute resolution has been
used successfully to resolve disputes in the private sector,
and in the public sector;
(8) alternative dispute resolution--
(A) results in expedited decisionmaking; and
(B) is less costly, and less contentious than litigation;
(9) it is necessary to facilitate intergovernmental
agreements between Indian tribes and States and political
subdivisions thereof;
(10) Indian tribes have made significant achievements
toward developing a foundation for economic self-sufficiency
and self-determination, and that economic self-sufficiency
and self-determination have increased opportunities for the
Indian tribes and other entities and persons to interact more
frequently in commerce and intergovernmental relationships;
(11) although Indian tribes have sought and secured
liability insurance coverage to meet their needs, many Indian
tribes are faced with significant barriers to obtaining
liability insurance because of the high cost or
unavailability of such coverage in the private market;
(12) as a result, Congress has extended liability coverage
provided to Indian tribes to organizations to carry out
activities under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.); and
(13) there is an emergent need for comprehensive and cost-
efficient insurance that allows the economy of Indian tribes
to continue to grow and provides compensation to persons that
may suffer personal injury or loss of property.
(b) Purposes.--The purposes of this Act are to enable
Indian tribes, tribal organizations, States and political
subdivisions thereof, through viable intergovernmental
agreements to--
(1) achieve intergovernmental harmony; and
(2) enhance intergovernmental commerce.

SEC. 3. DEFINITIONS.

In this Act:
(1) Federal agency.--The term ``Federal agency'' has the
meaning given the term ``Executive agency'' in section 105 of
title 5, United States Code.
(2) Indian country.--The term ``Indian country'' has the
meaning given that term in section 1151 of title 18, United
States Code.
(3) Indian tribe.--The term ``Indian tribe'' has the
meaning given that term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(e)).
(4) Panel.--The term ``Panel'' means the Intergovernmental
Alternative Dispute Panel established under section 103.
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Department of the Interior.
(6) State.--The term ``State'' means each of the 50 States
and the District of Columbia.
(7) Tribal organization.--The term ``tribal organization''
has the meaning given that term in section 4(l) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b(l)).

SEC. 4. DECLARED POLICY OF THE UNITED STATES.

It is the policy of the United States--
(1) to continue to preserve and protect Indian tribes,
Indian people, and trust resources and property of Indian
tribes; and
(2) that the settlement of issues and disputes involving
Indian tribes and States or political subdivisions thereof,
through negotiation and accommodation, may be advanced by
making available full and adequate governmental facilities
for fact finding, conciliation, mediation, and voluntary
arbitration to aid and encourage Indian tribes, States, and
political subdivisions thereof--
(A) to reach and maintain agreements; and
(B) to make reasonable efforts to settle differences by
mutual agreement reached by such methods as may be provided
for in any applicable agreement for the settlement of
disputes.
TITLE I--INTERGOVERNMENTAL AGREEMENTS

SEC. 101. INTERGOVERNMENTAL COMPACT AUTHORIZATION.

(a) In General.--The consent of the United States is
granted to States and Indian tribes to enter into compacts
and agreements in accordance with this title.
(b) Collection of Taxes.--Consistent with the United States
Constitution, treaties, and principles of tribal and State
sovereignty, and consistent with Supreme Court decisions
regarding the collection and payment of certain retail taxes
of a State or political subdivision thereof, the consent of
the United States is hereby given to Indian tribes, tribal
organizations, and States and States and Indian tribes may to
enter into compacts and agreements relating to the collection
and payment of certain retail taxes.
(c) Filing.--Not later than 30 days after entering into an
agreement or compact under this section, a State or Indian
tribe shall submit a copy of the compact or agreement to the
Secretary. Upon receipt of the compact or agreement, the
Secretary shall publish the compact or agreement in the
Federal Register.
(d) Limitations.--
(1) In general.--An agreement or compact under this section
shall not affect any action or proceeding over which a court
has assumed jurisdiction at the time that the agreement or
compact is executed.
(2) Prohibition.--No action or proceeding described in
paragraph (1) shall abate by reason of that agreement or
compact unless specifically agreed upon by all parties--
(A) to the action or proceedings; and
(B) to the agreement or compact.
(e) Revocation.--An agreement or compact entered into under
this section shall be subject to revocation by any party to
that agreement or compact. That revocation shall take effect
on the earlier of--

[[Page S5223]]

(1) the date that is 180 days after the date on which
notice of revocation is provided to each party to that
agreement or compact; or
(2) any date that is agreed to by all parties to that
agreement or compact.
(f) Revision or Renewal.--Upon the expiration or revocation
of an agreement or compact under this section, the parties to
such agreement or compact may enter into a revised agreement
or compact, or may renew that agreement or compact.
(g) Effect of Renewal.--For purposes of this title, the
renewal of an agreement or compact entered into under this
title shall be treated as a separate agreement or compact and
shall be subject to the limitations and requirements
applicable to an initial agreement or compact.
(h) Statutory Construction.--Nothing in this title shall be
construed to--
(1) except as expressly provided in this title, expand or
diminish the jurisdiction over civil or criminal matters that
may be exercised by a State or the governing body of an
Indian tribe; or
(2) authorize or empower a State or tribal government,
either separately or pursuant to agreement, to expand or
diminish the jurisdiction exercised by the Government of the
United States to--
(A) make criminal, civil, or regulatory laws; or
(B) enforce those laws in Indian country.

SEC. 102. INTERGOVERNMENTAL NEGOTIATIONS-PROCEDURES.

(a) Good Faith Negotiations.--In negotiating a claim, the
parties shall conduct full and fair good faith negotiations
pursuant to this title, with the objective of achieving a
intergovernmental agreement or compact that meets the
requirement of this title.
(b) Request for Negotiations.--
(1) In general.--An Indian tribe or a State may request the
Secretary to initiate negotiations to address a claim covered
under this title.
(2) Notification.--The Secretary shall notify the parties
of any request made under paragraph (1).
(3) Requests.--Any request made to the Secretary under this
subsection shall be in writing.
(4) Participation as a prerequisite to invoke procedures
under section 103.--
(A) In general.--A party may not file a claim under section
103 unless that party is available for, agrees to, and
participates in, negotiations under this section.
(B) Notice.--Upon receipt of any request made pursuant to
paragraph (1), the Secretary shall, not later than 30 days
after such receipt, send a notice by registered mail, return
receipt requested, advising the parties that are subject to a
request made under paragraph (1), that no party may file a
claim under section 103 without having participated in
negotiations under this section.
(c) Negotiations.--
(1) In general.--The Secretary shall, in a manner
consistent with section 103, cause to occur and facilitate
negotiations that are subject to a request under subsection
(a).
(2) Non-binding nature of negotiations.--Consistent with
the purposes of this title, the negotiations referred to in
paragraph (1) shall--
(A) be nonbinding; and
(B) be facilitated by a mediator selected in accordance
with section 103.
(3) Selection of mediator.--
(A) In general.--The Secretary shall select 3 mediators
from a list supplied by the Federal Mediation and
Conciliation Service and submit a list of these mediators to
the parties.
(B) Challenges.--Each party may challenge the selection of
1 of the mediators listed by the Secretary under subparagraph
(A).
(C) Selection.--After each party has had an opportunity to
challenge the list made by the Administrator under
subparagraph (B), the Secretary shall select a mediator from
the list who is not subject to such a challenge.
(4) Payment.--The expenses and fees of the mediator
selected under paragraph (3) in facilitating negotiations
under paragraph (1) shall be paid by the Secretary.
(5) Reimbursement.--If a party that files a claim under
section 103 and that party is not the prevailing party in
that claim, that party shall reimburse the Secretary for any
fees and expenses incurred by the Secretary pursuant to
paragraph (4).
(d) Procedures.--Negotiations conducted under this title
shall be subject to the following procedures:
(1) Commencement.--Negotiations conducted under this
section shall commence as soon as practicable after the party
that receives notice under subsection (b)(4)(B) responds to
the Secretary.
(2) Additional investigation, research, or negotiation.--
(A) In general.--Each party that enters into negotiation
under this section and the Secretary may agree to additional
investigation, research, or analysis to facilitate a
negotiated settlement.
(B) Payments.--The cost of the additional investigation,
research, or analysis referred to in subparagraph (A) shall
be borne by the party that undertakes that investigation,
research, or analysis, or causes that investigation,
research, and analysis.
(3) Exchange of records and documentation.--Each party that
enters into negotiations under this section shall exchange,
and make available to the Secretary, any records, documents,
or other information that the party may have with regard to
transactions within the scope of the claims alleged that--
(A) may be relevant to resolving the negotiations; and
(B) are not privileged information under applicable law, or
otherwise subject to restrictions on disclosure under
applicable law.
(4) Termination.--
(A) In general.--
(i) Termination.--Except as provided in clause (i) and
subparagraph (B), negotiations conducted under this section
shall terminate on the date that is 1 year after the date of
the first meeting of the parties to conduct negotiations
under this section.
(ii) Mutual agreement.--The period for negotiations under
clause (i) may be extended if the parties and the Secretary
agree that there is a reasonable likelihood that the
extension may result in a negotiated settlement.
(B) Mutual agreement.--At any time during negotiations
under this section, the parties may mutually agree to
terminate the negotiations.
(C) Fulfillment of certain requirements.--A party shall be
considered to have met the requirements described in
subsection (b)(4) in any case in which negotiations are
terminated by mutual agreement of the parties under
subparagraph (B).
(e) Negotiated Settlements.--
(1) In general.--A negotiated settlement of a claim covered
by this title reached by the parties under this section shall
constitute the final, complete, and conclusive resolution of
that claim.
(2) Alternative dispute resolution.--Any claim, setoff, or
counterclaim (including any claim, setoff, or counterclaim
described in section 103(c)) that is not subject to a
negotiated settlement under this section may be pursued by
the parties or the Secretary pursuant to section 103.

SEC. 103. INTERGOVERNMENTAL ALTERNATIVE DISPUTE RESOLUTION
PANEL-ESTABLISHMENT.

(a) In General.--If negotiations conducted under section
103 do not result in a settlement, the Secretary may refer
the State and Indian tribe involved to the Panel established
under subsection (b).
(b) Authority of Panel.--To the extent allowable by law,
the Panel may consider and render a decision on a referred to
the Panel under this section.
(c) Taxation.--Any claim involving the legitimacy of a
claim for the collection or payment of certain retail taxes
owed by an Indian tribe to a State or political subdivision
thereof and shall include or admit of counterclaims, setoffs,
or related claims submitted or filed by the tribe in question
regarding the original claim.
(d) Membership of the Panel.--
(1) In general.--The Panel shall consist of--
(A) 1 representative from the Department of the Interior;
(B) 1 representative from the Department of Justice;
(C) 1 representative from the Department of the Treasury;
(D) 1 representative of State governments; and
(E) 1 representative of tribal governments of Indian
tribes.
(2) Chairperson.--The members of the Panel shall select a
Chairperson from among the members of the Panel.
(e) Federal Mediation Conciliation Service.--
(1) In general.--In a manner consistent with this title,
the Panel shall consult with the Federal Mediation
Conciliation Service (referred to in this subsection as the
``Service'') established under section 202 of the National
Labor Relations Act (29 U.S.C. 172).
(2) Duties of service.--The Service shall, upon request of
the Panel and in a manner consistent with applicable law--
(A) provide services to the Panel to aid in resolving
disputes brought before the Panel;
(B) furnish employees to act as neutrals (as that term is
defined in section 571(9) of title 5, United States Code) in
resolving the disputes brought before the Panel; and
(C) consult with the Administrative Conference of the
United States to maintain a roster of neutrals and
arbitrators.

SEC. 104. JUDICIAL ENFORCEMENT.

(a) Intergovernmental Agreements.--
(1) In general.--
(A) Jurisdiction.--Except as provided in subparagraph (B),
the district courts of the United States shall have original
jurisdiction with respect to--
(i) any civil action, claim, counterclaim, or setoff,
brought by any party to a agreement or compact entered into
in accordance with this title to secure equitable relief,
including injunctive and declaratory relief; and
(ii) the enforcement of any agreement or compact.
(B) Damages.--No action to recover damages arising out of
or in connection with an agreement or compact entered into
under this section may be brought, except as specifically
provided for in that agreement or compact.
(2) Consent to suit.--Each compact or agreement entered
into under this title shall specify that the partner consent
to litigation to enforce the agreement, and to the extent
necessary to enforce that agreement, each party waives any
defense of sovereign immunity.

SEC. 105. JOINT TRIBAL-FEDERAL-STATE COMMISSION ON
INTERGOVERNMENTAL AFFAIRS.

(a) In general.--The Secretary shall establish a tribal,
Federal, and State commission

[[Page S5224]]

(to be known as the ``Tribal-Federal-State Commission'')
(referred to in this section as the ``Commission'').
(b) Members.--
(1) In general.--The Commission shall be comprised of
representatives of Indian tribes, the States, and the Federal
Government.
(2) Duties of the commission.--The Commission shall advise
the Secretary concerning issues of intergovernmental concern
with respect to Indian tribes, States, and the Federal
Government, including--
(A) law enforcement;
(B) civil and criminal jurisdiction;
(C) taxation;
(D) transportation;
(E) economy development; and
(F) other matters related to a matter described in
subparagraph (A), (B), (C), (D), or (E).
(3) Period of appointment.--Members shall be appointed for
the life of the Commission. Any vacancy in the Commission
shall not affect its powers, but shall be filled in the same
manner as the original appointment.
(4) Initial meeting.--No later than 30 days after the date
on which all members of the Commission have been appointed,
the Commission shall hold its first meeting.
(5) Meetings.--The Commission shall meet at the call of the
Chairman.
(6) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(7) Chairman and vice chairman.--The Commission shall
select a Chairman and Vice Chairman from among its members.
(8) Powers.--
(A) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out the purposes of this section.
(B) Information from federal agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to carry
out the provisions of this Act section. Upon request of the
Chairman of the Commission, the head of such department or
agency shall furnish such information to the Commission.
(C) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(D) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
(9) Commission personnel matters.--
(A) Compensation of members.--Each member of the Commission
who is not an officer or employee of the Federal Government
shall be compensated for each day (including travel time)
during which such member is engaged in the performance of the
duties of the Commission. All members of the Commission who
are officers or employees of the United States shall serve
without compensation in addition to that received for their
services as officers or employees of the United States.
(B) Travel expenses.--The members of the Commission 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 Commission.
(c) Report.--Not later than 2 years after the date of
enactment of this Act, and annually thereafter, the
Commission shall prepare and submit to the President, the
Committee on Indian Affairs of the Senate, and the Committee
on Resources of the House of Representatives a report on the
implementation of this title that includes any
recommendations that the Commission determines to be
appropriate.

SEC. 106. FUNDING AND IMPLEMENTATION.

(a) In General.--With respect to any agreement or compact
between an Indian tribe and a State, the United States, upon
agreement of the parties and the Secretary, may provide
financial assistance to such parties for costs of personnel
or administrative expenses in an amount not to exceed 100
percent of the costs incurred by the parties as a consequence
of that agreement or compact, including any indirect costs of
administration that are attributable to the services
performed under the agreement or compact.
(b) Assistance.--The head of each Federal agency may, to
the extent allowable by law and subject to the availability
of appropriations, provide technical assistance, material
support, and personnel to assist States and Indian tribes in
the implementation of the agreements or compacts entered into
under this title.
TITLE II--TORT LIABILITY INSURANCE

SEC. 201. LIABILITY INSURANCE, WAIVER OF DEFENSE.

(a) Tribal Priority Allocation Defined.--The term ``tribal
priority allocation'' means an allocation to a tribal
priority account of an Indian tribe by the Bureau of Indian
Affairs to allow that Indian tribe to establish program
priorities and funding levels.
(b) Insurance.--
(1) In general.--Except as provided in paragraph (3), not
later than 2 years after the date of enactment of this Act,
the Secretary shall obtain or provide tort liability
insurance or equivalent coverage for each Indian tribe that
receives a tribal priority allocation from amounts made
available to the Bureau of Indian Affairs for the operation
of Indian programs.
(2) Cost-effectiveness.--In carrying out paragraph (1), the
Secretary shall--
(A) ensure that the insurance or equivalent coverage is
provided in the most cost-effective manner available; and
(B) for each Indian tribe referred to in paragraph (1),
take into consideration the extent to which the tort
liability is covered--
(i) by privately secured liability insurance; or
(ii) chapter 171 of title 28, United States Code (commonly
referred to as the ``Federal Tort Claims Act'') by reason of
an activity of the Indian tribe in which the Indian tribe is
acting in the same capacity as an agency of the United
States.
(3) Limitation.--If the Secretary determines that an Indian
tribe, described in paragraph (1), has obtained liability
insurance in an amount and of the type that the Secretary
determines to be appropriate by the date specified in
paragraph (1), the Secretary shall not be required to provide
additional coverage for that Indian tribe.
(c) Requirements.--A policy of insurance or a document for
equivalent coverage under subsection (a)(1) shall--
(1) contain a provision that the insurance carrier shall
waive any right to raise as a defense the sovereign immunity
of an Indian tribe with respect to an action involving tort
liability of that Indian tribe, but only with respect to tort
liability claims of an amount and nature covered under the
insurance policy or equivalent coverage offered by the
insurance carrier; and
(2) not waive or otherwise limit the sovereign immunity of
the Indian tribe outside or beyond the coverage or limits of
the policy of insurance or equivalent coverage.
(d) Prohibition.--No waiver of the sovereign immunity of a
Indian tribe under this section shall include a waiver of any
potential liability for--
(1) interest that may be payable before judgment; or
(2) exemplary or punitive damages.
(e) Preference.--In obtaining or providing tort liability
insurance coverage for Indian tribes under this section, the
Secretary shall, to the greatest extent practicable, give
preference to coverage underwritten by Indian-owned economic
enterprises, as defined in section 3 of the Indian Financing
Act of 1974 (25 U.S.C. 1452), except that for the purposes of
this subsection, those enterprises may include non-profit
corporations.
(f) Regulations.--To carry out this title, the Secretary
shall promulgate regulations that--
(1) provide for the amount and nature of claims to be
covered by an insurance policy or equivalent coverage
provided to an Indian tribe under this title; and
(2) establish a schedule of premiums that may be assessed
against any Indian tribe that is provided liability insurance
under this title.

SEC. 202. STUDY AND REPORT TO CONGRESS

(a) In General.--
(1) Study.--In order to minimize and, if possible,
eliminate redundant or duplicative liability insurance
coverage and to ensure that the provision of insurance of
equivalent coverage under this title is cost-effective,
before carrying out the requirements of section 201, the
Secretary shall conduct a comprehensive survey of the degree,
type, and adequacy of liability insurance coverage of Indian
tribes at the time of the study.
(2) Contents of study.--The study conducted under this
subsection shall include--
(A) an analysis of loss data;
(B) risk assessments;
(C) projected exposure to liability, and related matters;
and
(D) the category of risk and coverage involved which may
include--
(i) general liability;
(ii) automobile liability;
(iii) the liability of officials of the Indian tribe;
(iv) law enforcement liability;
(v) workers' compensation; and
(vi) other types of liability contingencies.
(3) Assessment of coverage by categories of risk.--For each
Indian tribe described in section 201(a)(1), for each
category of risk identified under paragraph (2), the
Secretary, in conducting the study, shall determine whether
insurance coverage other than coverage to be provided under
this title or coverage under chapter 171 of title 28, United
States Code, applies to that Indian tribe for that activity.
(b) Report.--Not later than 3 years after the date of
enactment of this Act, and annually thereafter, the Secretary
shall submit a report to Congress concerning the
implementation of this title, that contains any legislative
recommendations that the Secretary determines to be
appropriate to improve the provision of insurance of
equivalent coverage to Indian tribes under this title, or
otherwise achieves the goals and objectives of this title.
______

By Mr. CAMPBELL:
S. 2098. A bill to preserve the sovereignty of the United States over
public lands and acquired lands owned by the United States, and to
preserve State sovereignty and private property rights in non-Federal
lands surrounding those public lands and acquired

[[Page S5225]]

lands; to the Committee on Energy and Natural Resources.

american land sovereignty protection act

Mr. CAMPBELL. Mr. President, as a strong supporter of American public
lands and private property rights, I am concerned about the setting
aside of public lands by the federal government for international
agreements and oversight. The absence of congressional oversight in
such programs as the United Nations Biosphere Reserve is of special
concern to me. The United Nations has designated 47 ``Biosphere
Reserves'' in the United States which contain a total area greater than
the size of my home state of Colorado. That is why today I introduce
companion legislation to H.R. 901, the American Land Sovereignty
Protection Act, introduced by Representative Don Young, to preserve
American sovereignty and halt the extension of the executive branch
into congressional constitutional authority.
We are facing a threat to our sovereignty by the creation of these
land reserves in our public lands. I also believe the rights of private
landowners must be protected if these international land designations
are made. Even more disturbing is the fact the executive branch elected
to be a party to this ``Biosphere Reserve'' program without the
approval of Congress or the American people. The absence of
congressional oversight in this area is a serious concern.
In fact most of these international land reserves have been created
with minimal, if any, congressional input or oversight or public
consultation. Congress must protect individual property owners, local
communities, and State sovereignty which may be adversely impacted
economically by any such international agreements.
The current system for implementing international land reserves
diminishes the power and sovereignty of the Congress to exercise its
constitutional power to make laws that govern lands belonging to the
United States. The executive branch may be indirectly agreeing to terms
of international treaties, such as the Convention of Biodiversity, to
which the United States is not a party, and one which our country has
refused to ratify.
A ``Biosphere Reserve'' is a federally-zoned and coordinated region
that could prohibit certain uses of private lands outside of the
designated international area. The executive branch is agreeing to
manage the designated area in accordance with an underlying agreement
which may have implications on non-federal land outside the affected
area. When residents of Arkansas discovered a plan by the United
Nations and the administration to advance a proposed ``Ozark Highland
Man and Biosphere Reserve'' without public input, the plan was
withdrawn in the face of public pressure. This type of stealth tactic
to accommodate international interests does not serve the needs and
desires of the American people. Rather, it is an encroachment by the
Executive branch on congressional authority.
As policymaking authority is further centralized at the executive
branch level, the role of ordinary citizens in the making of this
policy through their elected representatives is diminished. The
administration has allowed some of America's most symbolic monuments of
freedom, such as the Statue of Liberty and Independence Hall to be
listed as World Heritage Sites. Furthermore the United Nations has
listed national parks including Yellowstone National Park--our nation's
first national park.
Federal legislation is needed to require the specific approval of
Congress before any area within the borders of United States is made
part of an international land reserve. My bill reasserts Congress'
constitutional role in the creation of rules and regulations governing
lands belonging to the United States and its people.
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. 2098

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 ``American Land Sovereignty
Protection Act''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress finds the following:
(1) The power to dispose of and make all needful rules and
regulations governing lands belonging to the United States is
vested in the Congress under article IV, section 3, of the
Constitution.
(2) Some Federal land designations made pursuant to
international agreements concern land use policies and
regulations for lands belonging to the United States which
under article IV, section 3, of the Constitution can only be
implemented through laws enacted by the Congress.
(3) Some international land designations, such as those
under the United States Biosphere Reserve Program and the Man
and Biosphere Program of the United Nations Scientific,
Educational, and Cultural Organization, operate under
independent national committees, such as the United States
National Man and Biosphere Committee, which have no
legislative directives or authorization from the Congress.
(4) Actions by the United States in making such
designations may affect the use and value of nearby or
intermixed non-Federal lands.
(5) The sovereignty of the States is a critical component
of our Federal system of government and a bulwark against the
unwise concentration of power.
(6) Private property rights are essential for the
protection of freedom.
(7) Actions by the United States to designate lands
belonging to the United States pursuant to international
agreements in some cases conflict with congressional
constitutional responsibilities and State sovereign
capabilities.
(8) Actions by the President in applying certain
international agreements to lands owned by the United States
diminishes the authority of the Congress to make rules and
regulations respecting these lands.
(b) Purpose.--The purposes of this Act are the following:
(1) To reaffirm the power of the Congress under article IV,
section 3, of the Constitution over international agreements
which concern disposal, management, and use of lands
belonging to the United States.
(2) To protect State powers not reserved to the Federal
Government under the Constitution from Federal actions
designating lands pursuant to international agreements.
(3) To ensure that no United States citizen suffers any
diminishment or loss of individual rights as a result of
Federal actions designating lands pursuant to international
agreements for purposes of imposing restrictions on use of
those lands.
(4) To protect private interests in real property from
diminishment as a result of Federal actions designating lands
pursuant to international agreements.
(5) To provide a process under which the United States may,
when desirable, designate lands pursuant to international
agreements.

SEC. 3. CLARIFICATION OF CONGRESSIONAL ROLE IN WORLD HERITAGE
SITE LISTING.

Section 401 of the National Historic Preservation Act
Amendments of 1980 (Public Law 96-515; 94 Stat. 2987) is
amended--
(1) in subsection (a) in the first sentence, by--
(A) striking ``The Secretary'' and inserting ``Subject to
subsections (b), (c), (d), and (e), the Secretary''; and
(B) inserting ``(in this section referred to as the
`Convention')'' after ``1973''; and
(2) by adding at the end the following new subsections:
``(d)(1) The Secretary of the Interior may not nominate any
lands owned by the United States for inclusion on the World
Heritage List pursuant to the Convention, unless--
``(A) the Secretary finds with reasonable basis that
commercially viable uses of the nominated lands, and
commercially viable uses of other lands located within 10
miles of the nominated lands, in existence on the date of the
nomination will not be adversely affected by inclusion of the
lands on the World Heritage List, and publishes that finding;
``(B) the Secretary has submitted to the Congress a report
describing--
``(i) natural resources associated with the lands referred
to in subparagraph (A); and
``(ii) the impacts that inclusion of the nominated lands on
the World Heritage List would have on existing and future
uses of the nominated lands or other lands located within 10
miles of the nominated lands; and
``(C) the nomination is specifically authorized by a law
enacted after the date of enactment of the American Land
Sovereignty Protection Act and after the date of publication
of a finding under subparagraph (A) for the nomination.
``(2) The President may submit to the Speaker of the House
of Representatives and the President of the Senate a proposal
for legislation authorizing such a nomination after
publication of a finding under paragraph (1)(A) for the
nomination.
``(e) The Secretary of the Interior shall object to the
inclusion of any property in the United States on the list of
World Heritage in Danger established under Article 11.4 of
the Convention, unless--
``(1) the Secretary has submitted to the Speaker of the
House of Representatives and the President of the Senate a
report describing--
``(A) the necessity for including that property on the
list;
``(B) the natural resources associated with the property;
and

[[Page S5226]]

``(C) the impacts that inclusion of the property on the
list would have on existing and future uses of the property
and other property located within 10 miles of the property
proposed for inclusion; and
``(2) the Secretary is specifically authorized to assent to
the inclusion of the property on the list, by a joint
resolution of the Congress after the date of submittal of the
report required by paragraph (1).''.
``(f) The Secretary of the Interior shall submit an annual
report on each World Heritage Site within the United States
to the Chairman and Ranking Minority member of the Committee
on Resources of the House of Representatives and of the
Committee on Energy and Natural Resources of the Senate, that
contains for the year covered by the report the following
information for the site:
``(1) An accounting of all money expended to manage the
site.
``(2) A summary of Federal full time equivalent hours
related to management of the site.
``(3) A list and explanation of all nongovernmental
organizations that contributed to the management of the site.
``(4) A summary and account of the disposition of
complaints received by the Secretary related to management of
the site.''.

SEC. 4. PROHIBITION AND TERMINATION OF UNAUTHORIZED UNITED
NATIONS BIOSPHERE RESERVES.

Title IV of the National Historic Preservation Act
Amendments of 1980 (16 U.S.C. 470a-1 et seq.) is amended by
adding at the end the following new section:
``Sec. 403. (a) No Federal official may nominate any lands
in the United States for designation as a Biosphere Reserve
under the Man and Biosphere Program of the United Nations
Educational, Scientific, and Cultural Organization.
``(b) Any designation on or before the date of enactment of
the American Land Sovereignty Protection Act of an area in
the United States as a Biosphere Reserve under the Man and
Biosphere Program of the United Nations Educational,
Scientific, and Cultural Organization shall not have, and
shall not be given, any force or effect, unless the Biosphere
Reserve--
``(1) is specifically authorized by a law enacted after
that date of enactment and before December 31, 2000;
``(2) consists solely of lands that on that date of
enactment are owned by the United States; and
``(3) is subject to a management plan that specifically
ensures that the use of intermixed or adjacent non-Federal
property is not limited or restricted as a result of that
designation.
``(c) The Secretary of State shall submit an annual report
on each Biosphere Reserve within the United States to the
Chairman and Ranking Minority member of the Committee on
Resources of the House of Representatives and the Committee
on Energy and Natural Resources of the Senate, that contains
for the year covered by the report the following information
for the reserve:
``(1) An accounting of all money expended to manage the
reserve.
``(2) A summary of Federal full time equivalent hours
related to management of the reserve.
``(3) A list and explanation of all nongovernmental
organizations that contributed to the management of the
reserve.
``(4) A summary and account of the disposition of the
complaints received by the Secretary related to management of
the reserve.''.

SEC. 5. INTERNATIONAL AGREEMENTS IN GENERAL.

Title IV of the National Historic Preservation Act
Amendments of 1980 (16 U.S.C. 470a-1 et seq.) is further
amended by adding at the end the following new section:
``Sec. 404. (a) No Federal official may nominate, classify,
or designate any lands owned by the United States and located
within the United States for a special, including commercial,
or restricted use under any international agreement unless
such nomination, classification, or designation is
specifically authorized by law. The President may from time
to time submit to the Speaker of the House of Representatives
and the President of the Senate proposals for legislation
authorizing such a nomination, classification, or
designation.
``(b) A nomination, classification, or designation, under
any international agreement, of lands owned by a State or
local government shall have no force or effect unless the
nomination, classification, or designation is specifically
authorized by a law enacted by the State or local government,
respectively.
``(c) A nomination, classification, or designation, under
any international agreement, of privately owned lands shall
have no force or effect without the written consent of the
owner of the lands.
``(d) This section shall not apply to--
``(1) agreements established under section 16(a) of the
North American Wetlands Conservation Act (16 U.S.C. 4413);
and
``(2) conventions referred to in section 3(h)(3) of the
Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712(2)).
``(e) In this section, the term `international agreement'
means any treaty, compact, executive agreement, convention,
bilateral agreement, or multilateral agreement between the
United States or any agency of the United States and any
foreign entity or agency of any foreign entity, having a
primary purpose of conserving, preserving, or protecting the
terrestrial or marine environment, flora, or fauna.''.

SEC. 6. CLERICAL AMENDMENT.

Section 401(b) of the National Historic Preservation Act
Amendments of 1980 (16 U.S.C. 470a-1(b)) is amended by
striking ``Committee on Natural Resources'' and inserting
``Committee on Resources''.
______

By Mr. CAMPBELL:
S. 2099. A bill to provide for enhanced Federal sentencing guidelines
for counterfeiting offenses, and for other purposes; to the Committee
on the Judiciary.

counterfeiting sentencing enhancement act of 1998

Mr. CAMPBELL. Mr. President, today I introduce the Counterfeiting
Sentencing Enhancement Act of 1998. My bill would tighten the
sentencing guidelines' base offense level in recognition of the fact
that advances in computer and printing technology have fundamentally
changed the nature of counterfeiting. This bill would bring our
nation's counterfeiting laws out of Gutenberg's printing press era and
into the modern computer age.
Counterfeiting of our nation's currency is a serious and growing
problem. Incidents of computer generated counterfeiting have increased
dramatically over the last three years. In 1995 only one half of one
percent of counterfeit U.S. currency passed were computer generated.
Today, just three short years later, computer generated counterfeits
account for approximately 43 percent of the counterfeits passed.
Traditional counterfeiters use offset printing production methods
that require specialized equipment including printing presses, engraved
printing press plates and green ink. These counterfeiters encounter a
cumbersome process that is messy, is harder to conceal, and requires
them to produce in large batches.
However, a rapidly growing number of today's counterfeiters are using
personal computers, scanners, digital imaging software, full color
copiers, and laser and inkjet printers. They can also use the Internet
to instantaneously transmit the computer images needed for
counterfeiting. This technology, which is readily available and
increasingly affordable, enables criminals to produce high-quality
counterfeit currency in small batches and at a low cost. It is this
ability for counterfeiters to easily produce in small batches that has
rendered our sentencing guidelines outdated and less effective as a
deterrent.
Our sentencing guidelines under current law are based in a world
where the realities of offset printing required counterfeiters to
produce in rather large batches. That reality no longer exists.
Basically, the more counterfeit currency a counterfeiter got caught
with, the stiffer the sentence. Using computer technology, today's
counterfeiters can simply print out smaller batches of counterfeit
currency whenever they want to. This allows these criminals to
effectively fly just under the radar of our sentencing guideline
thresholds.
The administration recently acknowledged the extent of the problem.
In a March 5, 1998, letter to the U.S. Sentencing Commission, Treasury
Secretary Robert E. Rubin wrote that ``increases in computer
counterfeiting cases represent not only a threat to our law
enforcement interests, but also seriously threaten the integrity of our
U.S. currency. Maintaining the stability and integrity of U.S. currency
is essential to preserving the benefits derived from the dollar's
status as a world currency.''

In response to these enhanced counterfeiting techniques, the
Department of Treasury has been redesigning our nation's currency to
make it harder to counterfeit. In addition the Secret Service has
stepped up its battle against counterfeiters, both at home and abroad.
But more needs to be done. This bill is another important step to
toughen the penalties for counterfeiting.
Specifically, my bill strengthens the sentencing guidelines so that
increases are based on offense levels determined by the amount of
counterfeit bills produced and a point system based on the offender's
prior criminal history. Under current law, the base offense begins with
level 9 for convictions involving $2,000 in counterfeit currency or
less. Increases in this level occur according to the amount of
counterfeit bills over $2,000. Thus a defendant's guideline

[[Page S5227]]

range in counterfeiting cases depends largely on the amount of
counterfeit inventory seized when the operation is shut down.
Increases in sentencing are also determined by the prior criminal
history of the offender. Points are added for such things as: prior
imprisonment; offenses committed while on probation, parole, or
supervised release; offenses committed less than two years from prior
release; and other misdemeanor and petty offenses.
Under current law at base offense level 9, seven points are needed
for the imposition of a prison sentence of 12 to 18 months. Without
these points for prior criminal history many offenders simply are being
released on probation. I believe these sentencing guidelines are too
lenient and fail to address the growing problem of counterfeiting.
Therefore, my bill increases the base offense level in section 2B5.1
of the Federal Sentencing Guidelines by not less than two levels to
level 11. Under my bill, an offender would need only four points to
receive the same 12 to 18 month sentence which previously required
seven points. This relates to all counterfeiting offenses to address
the overall harm counterfeiting can have on the integrity of U.S.
currency.
Second, my bill adds a sentencing enhancement of not less than two
levels for counterfeiting offenses that involve the use of computer
printer or a color photocopying machine. This would place this new
class of computer counterfeiters at an offense level of 13. Here, an
offender would need zero points to receive the same 12 to 18 month
sentence. The increase in my bill would provide for actual prison
sentences in many of the cases where previous offenders were only
receiving probation. I believe this legislation clearly addresses our
growing problem with counterfeiters by imposing stricter sentencing
penalties.
Mr. President, counterfeiting threatens the very underpinnings of our
economy, the American people's confidence in the integrity and value of
our nation's currency, the U.S. dollar. The ``Counterfeiting Sentencing
Enhancement Act of 1998'' will send a clear message to criminals who
are even thinking about counterfeiting. I urge my colleagues to join in
support of this legislation.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2099

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

SECTION 1. SENTENCING GUIDELINES FOR COUNTERFEITING OFFENSES.

The United States Sentencing Commission shall amend the
Federal sentencing guidelines to provide--
(1) a sentencing enhancement of not less than 2 levels,
with respect to the base level for offenses involving
counterfeit bearer obligations of the United States, as
described in section 2B5.1 of the Federal sentencing
guidelines; and
(2) an additional sentencing enhancement of not less than 2
levels, with respect to any offense described in paragraph
(1) that involves the use of a computer printer or a color
photocopying machine.
______

By Mr. SPECTER (for himself, Mr. Mack, and Mr. Faircloth):
S. 2100. A bill to amend the Higher Education Act of 1965 to increase
public awareness concerning crime on college and university campuses;
to the Committee on Labor and Human Resources.

campus crime disclosure act of 1998

Mr. SPECTER. Mr. President, today I introduce the Campus Crime
Disclosure Act of 1998. My legislation amends the Crime Awareness and
Campus Security Act of 1990,
Educational institutions were once safe havens where we sent our
children. Unfortunately, today we are all aware of the increase in
violence that has reached as far down as our elementary schools to our
youngest and most innocent victims. I would note that just recently, in
the rural Pennsylvania community of Edinboro, a young teenager
lamentably shot a teacher to death at an 8th grade graduation dance and
wounded other students. While there is much that Congress can do to
reduce violence in our society and across all levels of educational
institutions, my legislation is focused on our national commitment to
improving public safety on college and university campuses, where young
adults are often away from their homes for the first time and living in
unfamiliar surroundings.
The legislation I am introducing today builds upon the fine work of
my distinguished colleagues, Representative Goodling of Pennsylvania
and Senator Jeffords of Vermont, who as chairmen of the authorizing
committees having jurisdiction over higher education, have included
campus crime amendments in the legislation reauthorizing the Higher
Education Act. However, I believe that their amendments to the 1990
Campus Security Act do not go far enough. Accordingly, my legislation
includes provisions which are not included in the reauthorization bill
and are necessary to bring schools into full compliance with the law,
such as a more detailed definition of ``campus'' and new civil
penalties.
Based on my experience as District Attorney of Philadelphia, and my
frequent involvement with educators and college students, I know that
safety on campuses is a very serious issue. I want to recognize one
family in particular for helping keep me and my colleagues informed on
the important issue of campus crime, Howard and Connie Clery, and their
son Ben, of King of Prussia, Pennsylvania for their continued work on
campus security policy. As my colleagues may know, in 1988, the Clerys'
daughter, Jeanne, was beaten, raped and murdered by a fellow student in
her campus dormitory room at Lehigh University. Soon after the tragedy,
Howard and Connie began to work on getting campus safety laws passed in
the States and the U.S. Congress. In fact, the campus security law
enacted in 1990 is often referred to as the ``Clery Bill.'' The Clerys
founded Security on Campus, Inc., which serves as a watchdog of campus
crime policies and procedures administered by our nation's colleges and
universities.
Based on continued conversations with the Clerys, it became apparent
to me that there was a critical need for Congressional oversight of how
the Department of Education has implemented the 1990 Act and whether
the Department's financial resources are adequate for enforcement of
the reporting requirements. On the fifth of March of this year, I held
a hearing on security on campus as chairman of the Senate Labor, Health
and Human Services and Education Appropriations Subcommittee, to
examine the Department of Education's enforcement of campus crime
reporting requirements. The Assistant Secretary for Postsecondary
Education for the U.S. Department of Education, David Longanecker,
testified that: ``Generally the issue of campus is one of the foremost
difficult areas that we have found campuses are having a difficult time
with, and it is a particular issue for an urban institution.''
Secretary Longanecker went on to say that sidewalks and public lands
are excluded from the Department's current definition of campus.
Further, testimony at the hearing showed that buildings which are used
for commercial purposes where other parts are used for educational
purposes do not fall within the Department's interpretation of
``campus,'' which, my own personal view, is an incorrect one. As one of
the authors of the 1990 law, I believe that the omission of such
information violates the spirit of the law and is a disservice to
parents and students, especially for parents who send their children to
college in urban settings, where commercial property such as food shops
and retail stores and city streets thread through the entire campus. I
believe it is preposterous to suggest that if a student fell victim to
a crime say on a sidewalk which he or she was using to get to class
would go unreported.

The Campus Crime Disclosure Act of 1998 clarifies the law as to what
constitutes a college or university campus. From now on, institutions
would have to report to parents, students, and other members of the
general public a more precise assessment of the criminal activity on
campus. Specifically, a campus will be interpreted to mean: any
building or property owned and controlled by the institution or owned
by a student organization recognized by the institution, any public
property such as sidewalks, streets, parking facilities, and other
thoroughfares that provide access to the facilities of the institution,
and any property owned or

[[Page S5228]]

controlled by the institution that is not in close proximity to the
campus must still be reported on. The bill also makes clear that all
dormitories and residential facilities, whether on or off-campus, which
are owned or operated by the institution, fall under the definition of
campus.
My legislation gives the Secretary of Education stronger enforcement
authority. Should an institution fail to report crime data, the
Department of Education can fine that institution up to $25,000.
According to a study conducted by the General Accounting Office, 63
institutions of higher education were in violation of the Crime
Awareness and Campus Security Act of 1990. Yet, the Department of
Education did not take any punitive action against these institutions.
The inclusion of fines will provide the Department with the necessary
tool to ensure that all schools fulfill the intention of the law.
I encourage my colleagues to join me in support of the Campus Crime
Disclosure Act of 1998 to enhance security on campus. The bill is
urgently needed to steer the U.S. Department of Education in the right
direction as it monitors crime on America's college campuses. Quite
simply, everyone benefits from clear and accurate reporting of the
risks facing college students.
Mr. President, I ask unanimous consent that a copy of the text of the
bill be printed in the Record as well as a section-by-section analysis.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2100

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 ``Campus Crime Disclosure Act
of 1998''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) According to the General Accounting Office, 63
institutions of higher education were in violation of the
amendments made by the Crime Awareness and Campus Security
Act of 1990 since the enactment of such Act in 1990. The
Department of Education has not taken punitive action against
these institutions.
(2) The Department of Education's interpretation of the
statutory definition of campus has enabled institutions of
higher education to underreport the instances of crimes
committed against students.
(3) In order to improve public awareness of crimes
committed on college and university campuses, it is essential
that Congress act to clarify existing law and to discourage
underreporting of offenses covered by the amendments made by
the Crime Awareness and Campus Security Act of 1990.

SEC. 3. ADDITIONAL CRIME CATEGORIES.

(a) In General.--Section 485(f)(1) of the Higher Education
Act of 1965 (20 U.S.C. 1092(f)(1)) is amended--
(1) by amending subparagraph (F) to read as follows:
``(F) 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
criminal offenses reported to campus security authorities or
local police agencies, and of referrals of persons for campus
disciplinary action, for the following:
``(i) Murder.
``(ii) Sex offenses, forcible or nonforcible.
``(iii) Robbery.
``(iv) Aggravated assault.
``(v) Burglary.
``(vi) Motor vehicle theft.
``(vii) Manslaughter.
``(viii) Larceny.
``(ix) Arson.
``(x) Liquor law violations, drug-related violations, and
weapons violations.'';
(2) by striking subparagraph (H); and
(3) by redesignating subparagraph (I) as subparagraph (H).
(b) Conforming Amendments.--Section 485(f) of the Higher
Education Act of 1965 (20 U.S.C. 1092(f)) is amended--
(1) in the matter preceding subparagraph (A) of paragraph
(4), by striking ``paragraphs (1)(F) and (1)(H)'' and
inserting ``paragraph (1)(F)''; and
(2) in paragraph (6), by striking ``paragraphs (1)(F) and
(1)(H)'' and inserting ``paragraph (1)(F)''.

SEC. 4. TIMELY MANNER.

Section 485(f)(3) of the Higher Education Act of 1965 (20
U.S.C. 1092(f)(3)) is amended by adding at the end the
following: ``Such reports shall be readily available to
students and employees through various mediums such as
resident advisors, electronic mail, school newspapers, and
announcement postings throughout the campus.''.

SEC. 5. DEFINITION OF CAMPUS.

Subparagraph (A) of section 485(f)(5) of the Higher
Education Act of 1965 (20 U.S.C. 1092(f)(5)) is amended to
read as follows: ``(A) For purposes of this section the term
`campus' means--
``(i) any building or property owned or controlled by an
institution of higher education within the same reasonably
contiguous geographic area of the institution, including a
building or property owned by the institution, but controlled
by another person, such as a food or other retail vendor;
``(ii) any building or property owned or controlled by a
student organization recognized by the institution;
``(iii) all public property that is within the same
reasonably contiguous geographic area of the institution,
such as a sidewalk, a street, other thoroughfare, or parking
facility, that provides immediate access to facilities owned
or controlled by the institution;
``(iv) any building or property owned, controlled, or used
by an institution of higher education in direct support of,
or related to the institution's educational purposes, that is
used by students, and that is not within the same reasonably
contiguous geographic area of the institution; and
``(v) all dormitories or other student residential
facilities owned or controlled by the institution.''.

SEC. 6. REPORTING REQUIREMENTS.

Section 485(f) of the Higher Education Act of 1965 (20
U.S.C. 1092) is amended further by adding at the end the
following:
``(8)(A) The Secretary shall report to the appropriate
committees of Congress each institution of higher education
that the Secretary determines is not in compliance with the
reporting requirements of this subsection.
``(B) The Secretary shall provide to an institution of
higher education that the Secretary determines is having
difficulty, or is not in compliance, with the reporting
requirements of this subsection--
``(i) data and analysis regarding successful practices
employed by institutions of higher education to reduce campus
crime; and
``(ii) technical assistance.
``(9) For purposes of reporting the statistics described in
paragraph (1)(F), an institution of higher education shall
distinguish, by means of a separate category, any criminal
offenses, and any referrals for campus disciplinary actions,
that occur--
``(A) on publicly owned sidewalks, streets, or other
thoroughfares, or in parking facilities, that provide
immediate access to facilities owned by the institution and
are within the same reasonably contiguous geographic area of
the institution; and
``(B) in dormitories or other residential facilities for
students, or in other facilities affiliated with the
institution.''.

SEC. 7. FINES.

Section 485(f) of the Higher Education Act of 1965 (20
U.S.C. 1092(f)) is amended further by adding after paragraph
(9) (as added by section 6) the following:
``(10)(A) Upon determination, after reasonable notice and
opportunity for a hearing, that an institution of higher
education--
``(i) has violated or failed to carry out any provision of
this subsection or any regulation prescribed under this
subsection; or
``(ii) has engaged in substantial misrepresentation of the
nature of the institution's activities under this subsection,
the Secretary shall impose a civil penalty upon the
institution of not to exceed $25,000 for each violation,
failure, or misrepresentation.
``(B) Any civil penalty may be compromised by the
Secretary. In determining the amount of such penalty, or the
amount agreed upon in compromise, the appropriateness of the
penalty to the size of the institution of higher education
subject to the determination, and the gravity of the
violation, failure, or misrepresentation shall be considered.
The amount of such penalty, when finally determined, or the
amount agreed upon in compromise, may be deducted from any
sums owing by the United States to the institution
charged.''.
____

The Campus Crime Disclosure Act of 1998--Summary

The Campus Crime Disclosure Act of 1998 amends the Higher
Education Act of 1965 to increase public awareness concerning
crime on college and university campuses.
Section 1. Title: ``Campus Crime Disclosure Act of 1998.''
Section 2. Findings.
Section 3. Additional Crime Categories.
Adds reporting requirements for offenses such as
manslaughter, larceny, arson, and for arrests or persons
referred for campus disciplinary action for liquor law
violations, drug-related violations, and weapons violations.
Section 4. Definition of Campus.
This section responds to the Department of Education's
interpretation of the 1990 campus crime reporting law by
modifying the definition of campus to include: any building
or property owned and controlled by the institution or by a
student organization recognized by the institution within the
contiguous area of the institution, any public property such
as sidewalks, streets, parking facilities, and other
thoroughfares that provide access to the facilities of the
institution, any building or property owned or controlled by
the institution that is not within the contiguous area but
used for educational purposes. The bill also makes clear that
all dormitories and residential facilities (on or off-campus)
which are owned or operated by the institution, fall under
the definition of campus.
Section 5. Reporting Requirements.
Adds three additional reporting requirements: (1) the
Secretary of Education must report back to Congress when
schools are

[[Page S5229]]

found in noncompliance, (2) the Secretary shall provide
technical assistance to schools concerning compliance with
reporting requirements and the implementation of campus
security procedures, and (3) requires institutions to include
in their reported statistics: crimes committed on public
property such as streets and sidewalks and student
residences.
Section 6. Fines.
Mandates for the first time that the Secretary of Education
shall impose civil penalties of up to $25,000 on institutions
which fail to comply with the Act's reporting requirements.
______

By Mr. BENNETT (for himself, Ms. Moseley-Braun, and Mr. Shelby):
S. 2101. A bill to amend the Public Health Service Act to provide for
research and services with respect to lupus; to the Committee on Labor
and Human Resources.

the lupus research and care amendments of 1998

Mr. BENNETT. Mr. President, I rise today to introduce the
Lupus Research and Care Amendments of 1998. This legislation would
authorize additional funds for lupus research and grants for state and
local governments to support the delivery of essential services to low-
income individuals with lupus and their families. The National
Institute of Health (NIH) spent about $33 million on lupus research
last year. I believe that we need to increase the funds that are
available for research of this debilitating disease.
Lupus is not a well-known disease, nor is it well understood, yet at
least 1,400,000 Americans have been diagnosed with lupus and many more
are either misdiagnosed or not diagnosed at all. More Americans have
lupus than AIDS, cerebral palsy, multiple sclerosis, sickle-cell anemia
or cystic fibrosis. Lupus is a disease that attacks and weakens the
immune system and is often life threatening. Lupus is nine times more
likely to affect women than men. African-American women are diagnosed
with lupus two to three times more often than Caucasian women. Lupus is
also more prevalent among certain minority groups including Latinos,
Native Americans and Asians.
Because lupus is not well understood, it is difficult to diagnose,
leading to uncertainty on the actual number of patients suffering from
lupus. The symptoms of lupus make diagnosis difficult because they are
sporadic and imitate the symptoms of many other illnesses. If diagnosed
and with proper treatment, the majority of lupus cases can be
controlled. Unfortunately, because of the difficulties in diagnosing
lupus and inadequate research, many lupus patients suffer debilitating
pain and fatigue. The resulting effects make it difficult, if not
impossible, for individuals suffering from lupus to carry on normal
everyday activities including work. Thousands of these debilitating
cases needlessly end in death each year.
Title I of the Lupus Research and Care Amendments of 1998 authorizes
$45 million in grants starting in fiscal year 1999 to be earmarked for
lupus research at NIH. This new authorization would amount to less than
one-half of 1 percent of NIH's total budget but would greatly enhance
NIH's research.
Title II of the Lupus Research and Care Amendments of 1998 authorizes
$40 million in grants to state and local governments as well as to
nonprofit organizations starting in fiscal year 1999. These grants
would support the delivery of essential services to low-income
individuals with lupus and their families.
I would urge all my colleagues, Mr. President, to join Senator
Moseley-Braun, Senator Shelby, and myself in sponsoring this
legislation to increase funding available to fight lupus.
______

By Mr. FEINGOLD (for himself, Mr. Jeffords, Mr. Leahy, and Mr.
Wellstone):

S. 2102. A bill to promote democracy and good governance in Nigeria,
and for other purposes; to the Committee on Foreign Relations.

nigeria democracy and civil society empowerment act

Mr. FEINGOLD. Mr. President, I introduce a sorely needed piece
of foreign policy legislation, the Nigeria Democracy and Civil Society
Empowerment Act of 1998. As the Ranking Democrat of the Senate
Subcommittee on Africa, I have long been concerned about the collapsing
economic and political situation in Nigeria. Nigeria, with its rich
history, abundant natural resources and wonderful cultural diversity,
has the potential to be an important regional leader. But, sadly, it
has squandered that potential and the good will of the world with
repressive policies, human rights abuses and corruption.
The legislation I am introducing today provides a clear framework for
U.S. policy toward that troubled West African nation. The Nigeria
Democracy and Civil Society Empowerment Act declares that the United
States should encourage the political, economic and legal reforms
necessary to ensure the rule of law and respect for human rights in
Nigeria and should aggressively support a timely and effective
transition to democratic, civilian government for the people of
Nigeria. I am pleased to have Senators Jeffords, Leahy and Wellstone
join me as cosponsors of this legislation.
This bill draws heavily from legislation introduced in the 104th
Congress by the former chair of the Senate Subcommittee on Africa,
Senator Kassebaum. I joined 21 other Senators as a proud co-sponsor of
that bill. A companion measure to my bill was introduced earlier this
week in the House by the distinguished chair of the House International
Relations Committee, Mr. Gilman of New York, and a distinguished member
of that Committee and of the Congressional Black Caucus, Mr. Payne of
New Jersey. I commend both of my House colleagues for their strong
leadership on this important issue and I appreciate the opportunity to
work with them toward passage of this legislation and the broader goal
of a freer Nigeria.
Mr. President, the Nigeria Democracy and Civil Society Empowerment
Act provides by law for many of the sanctions that the United States
has had in place against Nigeria for a number of years. It includes a
ban on most foreign direct assistance, a ban on the sale of military
goods and military assistance to Nigeria, and a ban on visas for top
Nigerian officials. It would allow the President to lift any of these
sanctions if he is able to certify to the Congress that specific
conditions, which I will call ``benchmarks,'' regarding the transition
to democracy have taken place in Nigeria. These benchmarks include free
and fair democratic elections, the release of political prisoners,
freedom of the press, the establishment of a functioning independent
electoral commission, access for international human rights monitors
and the repeal of the many repressive decrees the Abacha regime has
pressed upon the Nigerian people.
This legislation also provides for $37 million in development
assistance over three years to support democracy and governance
programs and the activities of the U.S. Information Agency, and
mandates a larger presence for the U.S. Agency for International
Development. I want to emphasize that this bill authorizes no new
money. All of these funds would come out of existing USAID and USIA
appropriations. At the same time, the bill prohibits any U.S. resources
from being used to support an electoral process in Nigeria until it is
clear that any planned election will be free and legitimate.
Importantly, my bill requires the President to impose additional
sanctions at the beginning of 1999 if he cannot certify that a free and
fair election has taken place by the end of 1998. These new sanctions,
will include a ban on Nigerian participation in major international
sporting events, an expansion of visa restrictions on Nigerian
officials and the submission of a report that lists the senior
officials that fall under such restrictions.
Finally, the bill requires the Secretary of State to submit a report
on corruption in Nigeria, including the evidence of corruption by
government officials in Nigeria and the impact of corruption on the
delivery of government services in Nigeria, on U.s. business interests
in Nigeria, and on Nigeria's foreign policy. It would also require that
the Secretary's report include information on the impact on U.S.
citizens of advance fee fraud and other fraudulent business schemes
originating in Nigeria.
The intent of this legislation is two-fold. First, it will send an
unequivocal message to the ruling military junta in Nigeria that it's
continued disregard for democracy, human rights and the institutions of
civil society in Nigeria

[[Page S5230]]

is simply unacceptable. Second, the bill is a call to action to the
Clinton Administration which has yet to articulate a coherent policy on
Nigeria that reflects the brutal political realities there.
Nigeria has suffered under military rule for most of its nearly 40
years as an independent nation. By virtue of its size, geographic
location, and resource base, it is economically and strategically
important both in regional and international terms. Nigeria is critical
to American interests. But Nigeria's future is being squandered by the
military government of General Sani Abacha. Abacha presides over a
Nigeria stunted by rampant corruption, economic mismanagement and the
brutal subjugation of its people.

The abiding calamity in Nigeria occurs in the context of economic and
political collapse. Nigeria has the potential to be the economic
powerhouse on the African continent, a key regional political leader,
and an important American trading partner, but it is none of these
things. Despite its wealth, economic activity in Nigeria continues to
stagnate. Even oil revenues are not what they might be, but they remain
the only reliable source of economic growth, with the United States
purchasing an estimated 41 percent of the output.
Corruption and criminal activity in this military-controlled economic
and political system have become common, including reports of drug
trafficking and consumer fraud schemes that have originated in Nigeria
and reached into the United States, including my home state of
Wisconsin.
After the military annulled the 1993 election of Moshood Abiola as
Nigeria's president--through what was considered by many observers to
be a free and fair election--Chief Abiola was thrown into prison, where
he remains, as far as we know, on the pretext of awaiting trial.
Reliable information about his situation and condition is difficult to
obtain. Chief Abiola's wife, Kudirat, was detained by authorities last
year and was later found murdered by the side of a road under
circumstances that suggest the military may have been responsible.
On October 1, 1995, General Abacha announced a so-called
``transition'' program whose goal was the return of an elected civilian
government in Nigeria by October 1998. But virtually none of the
institutions essential to a free and fair election--an independent
electoral commission, an open registration process, or open procedures
for the participation of independent political parties, for example--
has been put into place in Nigeria. Repression continues; political
prisoners remain in jail; the press remains muzzled; and the fruits of
Nigeria's abundant natural resources remain in the hands of Abacha's
supporters and cronies.
Even this flawed transition process--which in its best days moved at
a snail's pace--has now been completely destroyed by the recent
announcement that the fifth of the five officially sanctioned parties
has endorsed Gen. Abacha as their candidate. Now, what was to have been
a competitive presidential election has become a circus referendum on
Abacha himself. The general will allow an election so long as his name
is the only one on the ballot. This is little more than a sorry joke on
the premise of democracy!
Any criticism of this so-called transition process is punishable by
five years in a Nigerian prison. Reports from many international human
rights organizations and our own State Department document years of
similar brutality. Nigerian human rights activists and government
critics are commonly whisked away to secret trials before military
courts and imprisoned; independent media outlets are silenced; workers'
rights to organize are restricted; and the infamous State Security
[Detention of Persons] Decree #2, giving the military sweeping powers
of arrest and detention, remains in force.
Perhaps the most horrific example of repression by the Abacha
government was the execution of human rights and environmental activist
Ken Saro-Wiwa and eight others in November 1995 on trumped-up charges.
Since that barbaric spectacle, it appears the Abacha government has
been working even harder to tighten its grip on the country, wasting no
opportunity to subjugate the people of Nigeria.
Late last year, retired Major General Musa Yar'Adua, a former
Nigerian vice president and a prominent opponent of General Abacha,
died in state custody under circumstances that remain shrouded in
mystery. General Yar'Adua was one of 40 people arrested in 1995 during
a government sweep and sentenced to 25 years in prison for an alleged
coup plot widely believed to have been a pretext to silence government
critics. Just a few weeks ago, we received the disturbing news that
five Nigerians had been sentenced to death by a military tribunal amid
other unproven accusations of coup-plotting.
The Clinton Administration response to these events has been an
earnest muddle at best, and rudderless at worst. I welcome recent
efforts to complete the policy review process; in fact, I have been
pushing for its completion for quite some time, because I feel the
perceived ``lack'' of a policy with respect to Nigeria, for the past
two years or so, has been dangerous.
But, unfortunately, the long-awaited and oft-postponed principals'
meeting on this issue, which finally took place in April, has not
yielded any firm recommendations to the President. I have long urged
the Administration to take the toughest stance possible in support of
democracy in Nigeria, including a clear unequivocal statement that an
electoral victory for Abacha would be totally illegitimate and
unacceptable. The regime in Nigeria must know that anything less than a
transparent transition to civilian rule will be met with severe
consequences, including new sanctions as is mandated in this bill.
So I was particularly disappointed to hear the President remark
during his recent trip to Africa that General Abacha would be
considered acceptable by the United States if he chose to run in the
upcoming election as a civilian. My shock at that remark was tempered
somewhat by the efforts of numerous administration officials who
struggled to clarify the President's remarks. They insist that the U.S.
objective is to support a viable transition to civilian rule in
Nigeria, but my worst fears about that ominous remark by the President
have now come true. Abacha and his cronies seem to believe that the
United States would consider an Abacha victory in the upcoming
elections to be a viable, sustainable outcome. Why else would the plan
once touted as the basis for a democratic competitive presidential
election be downgraded into a rigged referendum on Abacha himself? As
planned now, the referendum will be one in which Abacha cannot lose and
the people of Nigeria cannot win.
Mr. President, the legislation I am introducing today represents an
effort to demonstrate our horror at the continued repression in
Nigeria, to encourage the ruling regime to take meaningful steps at
reform, to support those Nigerians who have worked tirelessly and
fearlessly for democracy and civilian rule and to move our own
government toward a Nigeria policy that vigorously reflects the best
American values.
I urge my colleagues to support this legislation, and I hope that we
will be able to consider it soon in the Committee on Foreign Relations.
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. 2102

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 ``Nigerian Democracy and
Civil Society Empowerment Act''.

SEC. 2. FINDINGS AND DECLARATION OF POLICY.

(a) Findings.--Congress makes the following findings:
(1) The continued rule of the Nigerian military
government, in power since a 1993 coup, harms the lives of
the people of Nigeria, undermines confidence in the Nigerian
economy, damages relations between Nigeria and the United
States, and threatens the political and economic stability of
West Africa.
(2) The transition plan announced by the Government of
Nigeria on October 1, 1995, which includes a commitment to
hold free and fair elections, has precluded the development
of an environment in which such elections would be considered
free and fair, nor was the transition plan itself developed
in a free and open manner or with the participation of the
Nigerian people.
(3) The United States Government would consider a free
and fair election in Nigeria

[[Page S5231]]

one that involves a genuinely independent electoral
commission and an open and fair process for the registration
of political parties and the fielding of candidates and an
environment that allows the full unrestricted participation
by all sectors of the Nigerian population.
(4) In particular, the process of registering voters and
political parties has been significantly flawed and subject
to such extreme pressure by the military so as to guarantee
the uncontested election of the incumbent or his designee to
the presidency.
(5) The tenure of the ruling military government in
Nigeria has been marked by egregious human rights abuses,
devastating economic decline, and rampant corruption.
(6) Previous and current military regimes have turned
Nigeria into a haven for international drug trafficking rings
and other criminal organizations.
(7) On September 18, 1997, a social function in honor of
then-United States Ambassador Walter Carrington was disrupted
by Nigerian state security forces. This culminated a campaign
of political intimidation and personal harassment against
Ambassador Carrington by the ruling regime.
(8) Since 1993, the United States and other members of
the international community have imposed limited sanctions
against Nigeria in response to human rights violations and
political repression.
(9) According to international and Nigerian human rights
groups, at least several hundred democracy and human rights
activists and journalists have been arbitrarily detained or
imprisoned, without appropriate due process of law.
(10)(A) The widely recognized winner of the annulled June
6, 1993, presidential election, Chief Moshood K. O. Abiola,
remains in detention on charges of treason.
(B) General Olusegun Obassanjo (rt.), who is a former
head of state and the only military leader to turn over power
to a democratically elected civilian government and who has
played a prominent role on the international stage as an
advocate of peace and reconciliation, remains in prison
serving a life sentence following a secret trial that failed
to meet international standards of due process over an
alleged coup plot that has never been proven to exist.
(C) Internationally renowned writer, Ken Saro-Wiwa, and 8
other Ogoni activists were arrested in May 1994 and executed
on November 10, 1995, despite the pleas to spare their lives
from around the world.
(D) Frank O. Kokori, Secretary General of the National
Union of Petroleum and Natural Gas Workers (NUPENG), who was
arrested in August 1994, and has been held incommunicado
since, Chief Milton G. Dabibi, Secretary General of Staff
Consultative Association of Nigeria (SESCAN) and former
Secretary General of the Petroleum and Natural Gas Senior
Staff Association (PENGASSAN), who was arrested in January
1996, remains in detention without charge, for leading
demonstrations against the canceled elections and against
government efforts to control the labor unions.
(E) Among those individuals who have been detained under
similar circumstances and who remain in prison are Christine
Anyanwu, Editor-in-Chief and publisher of The Sunday Magazine
(TSM), Kunle Ajibade and George Mbah, editor and assistant
editor of the News, Ben Charles Obi, a journalist who was
tried, convicted, and jailed by the infamous special military
tribunal during the reason trials over the alleged 1995 coup
plot, the ``Ogoni 21'' who were arrested on the same charges
used to convict and execute the ``Ogoni 9'' and Dr. Beko
Ransome-Kuti, a respected human rights activist and leader of
the pro-democracy movement and Shehu Sani, the Vice-Chairman
of the Campaign for Democracy.
(11) Numerous decrees issued by the military government
in Nigeria suspend the constitutional protection of
fundamental human rights, allow indefinite detention without
charge, revoke the jurisdiction of civilian courts, and
criminalize peaceful criticism of the transition program.
(12) As a party to the International Covenant on Civil
and Political Rights (ICCPR) and the African Charter on Human
and Peoples' Rights, and a signatory to the Harare
Commonwealth Declaration, Nigeria is obligated to grant its
citizens the right to fairly conduct elections that guarantee
the free expression of the will of the electors.
(13) Nigeria has played a major role in restoring
elected, civilian governments in Liberia and Sierra Leone as
the leading military force within the Economic Community of
West African States (ECOWAS) peacekeeping force, yet the
military regime has refused to allow the unfettered return of
elected, civilian government in Nigeria.
(14) Despite organizing and managing the June 12, 1993,
elections, successive Nigerian military regimes nullified
that election, imprisoned the winner a year later, and
continue to fail to provide a coherent explanation for their
actions.
(15) Nigeria has used its military and economic strength
to threaten the land and maritime borders and sovereignty of
neighboring countries, which is contrary to numerous
international treaties to which it is a signatory.
(b) Declaration of Policy.--Congress declares that the
United States should encourage political, economic, and legal
reforms necessary to ensure rule of law and respect for human
rights in Nigeria and support a timely and effective
transition to democratic, civilian government in Nigeria.

SEC. 3. SENSE OF CONGRESS.

(a) International Cooperation.--It is the sense of
Congress that the President should actively seek the
cooperation of other countries as part of the United States
policy of isolating the military government of Nigeria.
(b) United Nations Human Rights Commission.--It is the
sense of Congress that the President should instruct the
United States Representative to the United Nations Commission
on Human Rights (UNCHR) to use the voice and vote of the
United States at the annual meeting of the Commission--
(1) to condemn human rights abuses in Nigeria; and
(2) to press for the continued renewal of the mandate of,
and continued access to Nigeria for, the special rapporteur
on Nigeria, as called for in Commission Resolution 1997/53.
(c) Special Envoy for Nigeria.--It is the sense of
Congress that, because the United States Ambassador to
Nigeria, a resident of both Lagos and Abuja, Nigeria, is the
President's representative to the Government of Nigeria,
serves at the pleasure of the President, and was appointed by
and with the advice and consent of the Senate, the President
should not send any other envoy to Nigeria without prior
notification of Congress and should not designate a special
envoy to Nigeria without consulting Congress.

SEC. 4. ASSISTANCE TO PROMOTE DEMOCRACY AND CIVIL SOCIETY IN
NIGERIA.

(a) Development Assistance.--
(1) In general.--Of the amounts made available for fiscal
years 1999, 2000, and 2001 to carry out chapter 1 of part I
of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et
seq.), not less than $10,000,000 for fiscal year 1999, not
less than $12,000,000 for fiscal year 2000, and not less than
$15,000,000 for fiscal year 2001 should be available for
assistance described in paragraph (2) for Nigeria.
(2) Assistance described.--
(A) In general.--The assistance described in this
paragraph is assistance provided to nongovernmental
organizations for the purpose of promoting democracy, good
governance, and the rule of law in Nigeria.
(B) Additional requirement.--In providing assistance
under this subsection, the Administrator of the United States
Agency for International Development shall ensure that
nongovernmental organizations receiving such assistance
represent a broad cross-section of society in Nigeria and
seek to promote democracy, human rights, and accountable
government.
(3) Grants for promotion of human rights.--Of the amounts
made available for fiscal years 1999, 2000, and 2001 under
paragraph (1), not less than $500,000 for each such fiscal
year should be available to the United States Agency for
International Development for the purpose of providing grants
of not more than $25,000 each to support individuals or
nongovernmental organizations that seek to promote, directly
or indirectly, the advancement of human rights in Nigeria.
(b) USIA Information Assistance.--Of the amounts made
available for fiscal years 1999, 2000, and 2001 under
subsection (a)(1), not less than $1,000,000 for fiscal year
1999, $1,500,000 for fiscal year 2000, and $2,000,000 for
fiscal year 2001 should be made available to the United
States Information Agency for the purpose of supporting its
activities in Nigeria, including the promotion of greater
awareness among Nigerians of constitutional democracy, the
rule of law, and respect for human rights.
(c) Staff Levels and Assignments of United States
Personnel in Nigeria.--
(1) Finding.--Congress finds that staff levels at the
office of the United States Agency for International
Development in Lagos, Nigeria, are inadequate.
(2) Sense of congress.--It is the sense of Congress that
the Administrator of the United States Agency for
International Development should--
(A) increase the number of United States personnel at
such Agency's office in Lagos, Nigeria, from within the
current, overall staff resources of such Agency in order for
such office to be sufficiently staffed to carry out
subsection (a); and
(B) consider placement of personnel elsewhere in Nigeria.

SEC. 5. PROHIBITION ON ECONOMIC ASSISTANCE TO THE GOVERNMENT
OF NIGERIA; PROHIBITION ON MILITARY ASSISTANCE
FOR NIGERIA; REQUIREMENT TO OPPOSE MULTILATERAL
ASSISTANCE FOR NIGERIA.

(a) Prohibition on Economic Assistance.--
(1) In general.--Economic assistance (including funds
previously appropriated for economic assistance) shall not be
provided to the Government of Nigeria.
(2) Economic assistance defined.--As used in this
subsection, the term ``economic assistance''--
(A) means--
(i) any assistance under part I of the Foreign Assistance
Act of 1961 (22 U.S.C. 2151 et seq.) and any assistance under
chapter 4 of part II of such Act (22 U.S.C. 2346 et seq.)
(relating to economic support fund); and
(ii) any financing by the Export-Import Bank of the
United States, financing and assistance by the Overseas
Private Investment Corporation, and assistance by the Trade
and Development Agency; and
(B) does not include disaster relief assistance, refugee
assistance, or narcotics control assistance under chapter 8
of part I of the Foreign Assistance Act of 1961 (22 U.S.C.
2291 et seq.).

[[Page S5232]]

(b) Prohibition on Military Assistance or Arms
Transfers.--
(1) In general.--Military assistance (including funds
previously appropriated for military assistance) or arms
transfers shall not be provided to Nigeria.
(2) Military assistance or arms transfers.--The term
``military assistance or arms transfers'' means--
(A) assistance under chapter 2 of part II of the Foreign
Assistance Act of 1961 (22 U.S.C. 2311 et seq.) (relating to
military assistance), including the transfer of excess
defense articles under section 516 of that Act (22 U.S.C.
2321j);
(B) assistance under chapter 5 of part II of the Foreign
Assistance Act of 1961 (22 U.S.C. 2347 et seq.) (relating to
international military education and training);
(C) assistance under the ``Foreign Military Financing
Program'' under section 23 of the Arms Export Control Act (22
U.S.C. 2763); or
(D) the transfer of defense articles, defense services,
or design and construction services under the Arms Export
Control Act (22 U.S.C. 2751 et seq.), including defense
articles and defense services licensed or approved for export
under section 38 of that Act (22 U.S.C. 2778).
(c) Requirement To Oppose Multilateral Assistance.--
(1) In general.--The Secretary of the Treasury shall
instruct the United States executive director to each of the
international financial institutions described in paragraph
(2) to use the voice and vote of the United States to oppose
any assistance to the Government of Nigeria.
(2) International financial institutions described.--The
international financial institutions described in this
paragraph are the African Development Bank, the International
Bank for Reconstruction and Development, the International
Development Association, the International Finance
Corporation, the Multilateral Investment Guaranty Agency, and
the International Monetary Fund.

SEC. 6. EXCLUSION FROM ADMISSION INTO THE UNITED STATES OF
CERTAIN NIGERIAN NATIONALS.

Notwithstanding any other provision of law, the Secretary
of State shall deny a visa to, and the Attorney General shall
exclude from the United States, any alien who is--
(1) a current member of the Provisional Ruling Council of
Nigeria;
(2) a current civilian minister of Nigeria not on the
Provisional Ruling Council;
(3) a military officer currently in the armed forces of
Nigeria;
(4) a person in the Foreign Ministry of Nigeria who holds
Ambassadorial rank, whether in Nigeria or abroad;
(5) a current civilian head of any agency of the Nigerian
government with a rank comparable to the Senior Executive
Service in the United States;
(6) a current civilian advisor or financial backer of the
head of state of Nigeria;
(7) a high-ranking member of the inner circle of the
Babangida regime of Nigeria on June 12, 1993;
(8) a high-ranking member of the inner circle of the
Shonekan interim national government of Nigeria;
(9) a civilian who there is reason to believe is
traveling to the United States for the purpose of promoting
the policies of the military government of Nigeria;
(10) a current head of a parastatal organization in
Nigeria; or
(11) a spouse or minor child of any person described in
any of the paragraphs (1) through (10).

SEC. 7. ADDITIONAL MEASURES.

(a) In General.--Unless the President determines and
certifies to the appropriate congressional committees by
December 31, 1998, that a free and fair presidential election
has occurred in Nigeria during 1998 and so certifies to the
appropriate committees of Congress, the President, effective
January 1, 1999--
(1) shall exercise his authority under section 203 of the
International Emergency Economic Powers Act (50 U.S.C. 1702)
to prohibit any financial transaction involving the
participation by a Nigerian national as a representative of
the Federal Republic of Nigeria in a sporting event in the
United States;
(2) shall expand the restrictions in section 6 to include
a prohibition on entry into the United States of any employee
or military officer of the Nigerian government and their
immediate families;
(3) shall submit a report to the appropriate
congressional committees listing, by name, senior Nigerian
government officials and military officers who are suspended
from entry into the United States under section 6; and
(4) shall consider additional economic sanctions against
Nigeria.
(b) Actions of International Sports Organizations.--It is
the sense of Congress that any international sports
organization in which the United States is represented should
refuse to invite the participation of any national of Nigeria
in any sporting event in the United States sponsored by that
organization.

SEC. 8. WAIVER OF PROHIBITIONS AGAINST NIGERIA IF CERTAIN
REQUIREMENTS MET.

(a) In general.--The President may waive any of the
prohibitions contained in section 5, 6, or 7 for any fiscal
year if the President makes a determination under subsection
(b) for that fiscal year and transmits a notification to
Congress of that determination under subsection (c).
(b) Presidential Determination Required.--A determination
under this subsection is a determination that--
(1) the Government of Nigeria--
(A) is not harassing or imprisoning human rights and
democracy advocates and individuals who criticize the
government's transition program;
(B) has established a new transition process developed in
consultation with the pro-democracy forces, including the
establishment of a genuinely independent electoral commission
and the development of an open and fair process for
registration of political parties, candidates, and voters;
(C) is providing increased protection for freedom of
speech, assembly, and the media, including cessation of
harassment of journalists;
(D) has released individuals who have been imprisoned
without due process or for political reasons;
(E) is providing access for independent international
human rights monitors;
(F) has repealed all decrees and laws that--
(i) grant undue powers to the military;
(ii) suspend the constitutional protection of fundamental
human rights;
(iii) allow indefinite detention without charge,
including the State of Security (Detention of Persons) Decree
No. 2 of 1984; or
(iv) suspend the right of the courts to rule on the
lawfulness of executive action; and
(G) has unconditionally withdrawn the Rivers State
internal security task force and other paramilitary units
with police functions from regions in which the Ogoni ethnic
group lives and from other oil-producing areas where violence
has been excessive; or
(2) it is in the national interests of the United States
to waive the prohibition in section 5, 6, or 7, as the case
may be.
(c) Congressional Notification.--Notification under this
subsection is written notification of the determination of
the President under subsection (b) provided to the
appropriate congressional committees not less than 15 days in
advance of any waiver of any prohibition in section 5, 6, or
7, subject to the procedures applicable to reprogramming
notifications under section 634A of the Foreign Assistance
Act of 1961 (22 U.S.C. 2394-1).

SEC. 9. PROHIBITION ON UNITED STATES ASSISTANCE OR
CONTRIBUTIONS TO SUPPORT OR INFLUENCE ELECTION
ACTIVITIES IN NIGERIA.

(a) Prohibition.--
(1) In general.--No department, agency, or other entity
of the United States Government shall provide any assistance
or other contribution to any political party, group,
organization, or person if the assistance or contribution
would have the purpose or effect of supporting or influencing
any election or campaign for election in Nigeria.
(2) Person defined.--As used in paragraph (1), the term
``person'' means any natural person, any corporation,
partnership, or other juridical entity.
(b) Waiver.--The President may waive the prohibition
contained in subsection (a) if the President--
(1) determines that--
(A) the climate exists in Nigeria for a free and fair
democratic election that will lead to civilian rule; or
(B) it is in the national interests of the United States
to do so; and
(2) notifies the appropriate congressional committees not
less than 15 days in advance of the determination under
paragraph (1), subject to the procedures applicable to
reprogramming notifications under section 634A of the Foreign
Assistance Act of 1961 (22 U.S.C. 2394-1).

SEC. 10. REPORT ON CORRUPTION IN NIGERIA.

Not later than 3 months after the date of the enactment
of this Act, and annually for the next 5 years thereafter,
the Secretary of State shall prepare and submit to the
appropriate congressional committees, and make available to
the public, a report on governmental corruption in Nigeria.
This report shall include--
(1) evidence of corruption by government officials in
Nigeria;
(2) the impact of corruption on the delivery of
government services in Nigeria;
(3) the impact of corruption on United States business
interests in Nigeria;
(4) the impact of advance fee fraud, and other fraudulent
business schemes originating in Nigeria, on United States
citizens; and
(5) the impact of corruption on Nigeria's foreign policy.

SEC. 11. APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.

Except as provided in section 6, in this Act, the term
``appropriate congressional committees'' means--
(1) the Committee on International Relations of the House
of Representatives;
(2) the Committee on Foreign Relations of the Senate; and
(3) the Committees on Appropriations of the House of
Representatives and the Senate.
______

By Mrs. FEINSTEIN (for herself, Mr. Hatch, and Mrs. Boxer):
S. 2103. A bill to provide protection from personal intrusion for
commercial purposes; to the Committee on the Judiciary.

Personal Privacy Protection Act

Mrs. FEINSTEIN. Mr. President, today, along with the Chairman of the

[[Page S5233]]

Judiciary Committee, Senator Hatch, and Senators Boxer and Kerry, I am
introducing the Personal Privacy Protection Act. This legislation
narrowly targets threatening and endangering harassment and privacy
abuses undertaken by the stalker press.
Freedom of the press is the bedrock of American Democracy. But there
is something wrong when a person cannot visit a loved one in the
hospital, walk their child to school, or be secure in the privacy of
their own home without being dangerously chased, provoked, or
trespassed upon by photographers trying to capture pictures of them to
sell to the tabloids.
When people find themselves in the public eye due to a personal
tragedy or circumstances beyond their control, they should not be put
into personal fear of bodily injury by tabloid media persistently
chasing them. And just because a person makes their living on
television or in the movies should not mean they forfeit all rights to
personal privacy. There is a line between legitimate news gathering and
invasion of privacy; between snapping a picture of someone in a public
place and chasing them to the point where they fear for their safety;
between reporting the news and trespassing on private property.
Unfortunately, today that line is crossed more and more frequently by
an increasingly aggressive cadre of fortune-seekers with cameras.
I began the process of developing this legislation together with
Senator Boxer more than a year ago, after meeting with members of the
Screen Actors Guild and hearing about the abuses people suffer every
day at the hands of the stalker press--photographers using telephoto
lenses to peer into private homes, cars chasing them off the road,
having their children stalked and harassed. The tragic death of
Princess Diana last August brought the seriousness of the problem home
with a blunt force that stunned the world.
This legislation is narrowly drafted. It is not aimed at, nor would
it affect, the overwhelming majority of those in the media, but is
specifically aimed at abusive, threatening tactics employed by some who
do not respect where the line is between what is public and what is
private.
The Personal Privacy Protection Act would do two basic things. First,
it would make it a crime, punishable by a fine and up to a year in
prison, to persistently follow or chase someone in order to photograph,
film, or record them for commercial purposes, in a manner that causes a
reasonable fear of bodily injury. Cases in which the persistent
following or chasing actually caused serious bodily injury would be
punishable by up to 5 years in prison, and where the actions caused
death, by up to 20 years in prison. The legislation would also allow
victims of such actions to bring a civil suit to recover compensatory
and punitive damages and for injunctive and declaratory relief.

Second, the legislation would allow civil actions to be brought
against those who trespass on private property in order to photograph,
film, or record someone for commercial purposes. In such cases, the
bill would allow victims to bring suit in Federal court to recover
compensatory and punitive damages and to obtain injunctive and
declaratory relief.
Furthermore, in certain specified circumstances, the bill would
prevent ``technological trespass.'' Specifically, the legislation would
allow a civil action where a visual or auditory enhancement device is
used to capture images or recordings that could not otherwise have been
captured without trespassing. This provision would apply only to images
or recordings of a personal or familial activity, captured for
commercial purposes, and only where the subject had a reasonable
expectation of privacy. In such cases, the victim would be allowed to
bring suit in Federal court to recover compensatory and punitive
damages and to obtain injunctive and declaratory relief. In the case of
trespass or technological trespass, only a civil suit by the victim
would be allowed; no criminal penalty would be prescribed.
This legislation is needed because existing laws fail to protect
against dangerous and abusive tactics. Although existing laws may cover
some instances of abusive harassment or trespass by the stalker press,
victims cannot be certain of protection. Existing state laws form at
best a patchwork of protection, and courts often make an exception for
activity undertaken ostensibly for ``news gathering'' purposes.
For example, state and local harassment law are often not codified
and may require exhaustive litigation to enforce. These vary from state
to state and from jurisdiction to jurisdiction, and often do not apply
in cases involving the media. Some statutes require proof of an intent
to harass; and courts in some jurisdictions may allow a broad ``news
gathering'' exception.
Similarly, reckless endangerment statutes in some states prohibit
recklessly engaging in conduct which creates a substantial risk of
serious physical injury to another person. However, these laws are not
uniform and their application is very spotty when it comes to dealing
with abusive media practices.
Federal, state, and local anti-stalking ordinances often contain
loopholes and generally do not apply to activities undertaken for
commercial purposes. The Federal anti-stalking ordinance and 28 of the
49 state anti-stalking ordinances--including California's--require
proof of the criminal intent to cause fear in order to prosecute.
Existing state trespass laws may be insufficient to protect an owner
from an invasion of privacy. For example, an Oregon Court of Appeals
upheld a jury verdict for a TV news crew that filmed a police raid in
executing a warrant to search the owner's home, despite the fact that
the TV crew had entered the property without permission, because the
jury found that the intrusion was not ``highly offensive' so as to
invade the owner's privacy.

Furthermore, existing trespass laws fail to protect against
technological trespass using intrusive technology such as telephoto
lenses and parabolic microphones aimed at bedrooms, living rooms, and
fenced backyards in which people ought to have an expectation of
privacy. Because trespass law requires actual physical invasion, it
does not protect against such invasive tactics.
In crafting this legislation, we worked with some of the most
renowned Constitutional scholars and First Amendment advocates in the
nation, including Erwin Chemerinsky of the University of Southern
California Law School, Cass Sunstein of the Chicago School of Law, and
Lawrence Lessig of Harvard Law School. At their recommendation, we took
the approach of plugging loopholes in existing, long-recognized laws
prohibiting harassment and trespassing, rather than creating new
provisions out of whole cloth, in order to craft a constitutional bill
that fully respects First Amendment and other constitutional rights.
This bill does so. The Constitutional scholars concurred unanimously
that this legislation is narrowly drafted to withstand constitutional
challenge on First Amendment, federalism, or any other grounds.
Mr. President, finally, I should mention that we worked closely with
Representative Sonny Bono on this legislation prior to his untimely
death, and it was Representative Bono's intention to introduce
companion legislation in the House of Representatives. I am deeply
saddened that he is not alive today to do so.
I urge my colleagues to support this legislation in order to protect
against invasive, harassing, and endangering behavior that can threaten
any one of us who, for whatever reason, finds him or herself in the
public spotlight. I ask unanimous consent that the text of the bill be
included in the Record, along with the letters mentioned previously.
There being no objection, the items were ordered to be printed in the
Record, as follows:

S. 2103

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 ``Personal Privacy
Protection Act''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress makes the following findings:
(1) Individuals and their families have been harassed and
endangered by being persistently followed or chased in a
manner that puts them in reasonable fear of bodily injury,
and in danger of serious bodily injury or even death, by
photographers, videographers, and audio recorders attempting
to capture images or other reproductions of their private
lives for commercial purposes.

[[Page S5234]]

(2) The legitimate privacy interests of individuals and
their families have been violated by photographers,
videographers, and audio recorders who physically trespass in
order to capture images or other reproductions of their
private lives for commercial purposes, or who do so
constructively through intrusive modern visual or auditory
enhancement devices, such as powerful telephoto lenses and
hyperbolic microphones that enable invasion of private areas
that would otherwise be impossible without trespassing.
(3) Such harassment and trespass threatens not only
professional public persons and their families, but also
private persons and their families for whom personal
tragedies or circumstances beyond their control create media
interest.
(4) Federal legislation is necessary to protect
individuals and their families from persistent following or
chasing for commercial purposes that causes reasonable fear
of bodily injury, because such harassment is not directly
regulated by applicable Federal, State, and local statutory
or common laws, because those laws provide an uneven
patchwork of coverage, and because those laws may not cover
such activities when undertaken for commercial purposes.
(5) Federal legislation is necessary to prohibit and
provide proper redress in Federal courts for trespass and
constructive trespass using intrusive visual or auditory
enhancement devices for commercial purposes, because
technological advances such as telephoto lenses and
hyperbolic microphones render inadequate existing common law
and State and local regulation of such trespass and invasion
of privacy.
(6) There is no right, under the first amendment to the
Constitution of the United States, to persistently follow or
chase another in a manner that creates a reasonable fear of
bodily injury, to trespass, or to constructively trespass
through the use of intrusive visual or auditory enhancement
devices.
(7) This Act, and the amendments made by this Act, do not
in any way regulate, prohibit, or create liability for
publication or broadcast of any image or information, but
rather use narrowly tailored means to prohibit and create
liability for specific dangerous and intrusive activities
that the Federal Government has an important interest in
preventing, and ensure a safe and secure private realm for
individuals against intrusion, which the Federal Government
has an important interest in ensuring.
(8) This Act protects against unwarranted harassment,
endangerment, invasion of privacy, and trespass in an
appropriately narrowly tailored manner without abridging the
exercise of any rights guaranteed under the first amendment
to the Constitution of the United States, or any other
provision of law.
(9) Congress has the affirmative power under section 8 of
article I of the Constitution of the United States to enact
this Act.
(10) Because this Act regulates only conduct undertaken
in order to create products intended to be and routinely
transmitted, bought, or sold in interstate or foreign
commerce, or persons who travel in interstate or foreign
commerce in order to engage in regulated conduct, the Act is
limited properly to regulation of interstate or foreign
commerce.
(11) Photographs and other reproductions of the private
activities of persons obtained through activities regulated
by this Act, and the amendments made by this Act, are
routinely reproduced and broadcast in interstate and
international commerce.
(12) Photographers, videographers, and audio recorders
routinely travel in interstate commerce in order to engage in
the activities regulated by this Act, and the amendments made
by this Act, with the intent, expectation, and routine result
of gaining material that is bought and sold in interstate
commerce.
(13) The activities regulated by this Act, and the
amendments made by this Act, occur routinely in the channels
of interstate commerce, such as the persistent following or
chasing of subjects in an inappropriate manner on public
streets and thoroughfares or in airports, and the use of
public streets and thoroughfares, interstate and
international airports, and travel in interstate and
international waters in order to physically or constructively
trespass for commercial purposes.
(14) The activities regulated by this Act, and the
amendments made by this Act, substantially affect interstate
commerce by threatening the careers, livelihoods, and rights
to publicity of professional public persons in the national
and international media, and by thrusting private persons
into the national and international media.
(15) The activities regulated by this Act, and the
amendments made by this Act, substantially affect interstate
commerce by restricting the movement of persons who are
targeted by such activities and their families, often forcing
them to curtail travel or appearances in public spaces, or,
conversely, forcing them to travel in interstate commerce in
order to escape from abuses regulated by this Act, and the
amendments made by this Act.
(b) Purposes.--The purposes of this Act are--
(1) to protect individuals and their families against
reasonable fear of bodily injury, endangerment, trespass, and
intrusions on their privacy due to activities undertaken in
connection with interstate and international commerce in
reproduction and broadcast of their private activities;
(2) to protect interstate commerce affected by such
activities, including the interstate commerce of individuals
who are the subject of such activities; and
(3) to establish the right of private parties injured by
such activities, as well as the Attorney General of the
United States and State attorneys general in appropriate
cases, to bring actions for appropriate relief.

SEC. 3. CRIMINAL OFFENSE.

(a) In General.--Chapter 89 of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 1822. Harassment for commercial purposes

``(a) Definitions.--In this section:
``(1) For commercial purposes.--
``(A) In general.--The term `for commercial purposes'
means with the expectation of sale, financial gain, or other
consideration.
``(B) Rule of construction.--For purposes of this
section, a visual image, sound recording, or other physical
impression shall not be found to have been, or intended to
have been, captured for commercial purposes unless it was
intended to be, or was in fact, sold, published, or
transmitted in interstate or foreign commerce, or unless the
person attempting to capture such image, recording, or
impression moved in interstate or foreign commerce in order
to capture such image, recording, or impression.
``(2) Harasses.--The term `harasses' means persistently
physically follows or chases a person in a manner that causes
the person to have a reasonable fear of bodily injury, in
order to capture by a visual or auditory recording instrument
any type of visual image, sound recording, or other physical
impression of the person for commercial purposes.
``(b) Prohibition and Penalties.--Whoever harasses any
person within the United States or the special maritime and
territorial jurisdiction of the United States--
``(1) if death is proximately caused by such harassment,
shall be imprisoned not less than 20 years and fined under
this title;
``(2) if serious bodily injury is proximately caused by
such harassment, shall be imprisoned not less than 5 years
and fined under this title; and
``(3) if neither death nor serious bodily injury is
proximately caused by such harassment, shall be imprisoned
not more than 1 year, fined under this title, or both.
``(c) Cause of Action.--Any person who is legally present
in the United States and who is subjected to a violation of
this section may, in a civil action against the person
engaging in the violation, obtain any appropriate relief,
including compensatory damages, punitive damages, and
injunctive and declaratory relief. In any civil action or
proceeding to enforce a provision of this section, the court
shall allow the prevailing party reasonable attorney's fees
as part of the costs. In awarding attorney's fees, the court
shall include expert fees as part of the attorney's fees.
``(d) Limitation on Defenses.--It is not a defense to a
prosecution or civil action under this section that--
``(1) no image or recording was captured; or
``(2) no image or recording was sold.
``(e) Use of Images.--Nothing in this section may be
construed to make the sale, transmission, publication,
broadcast, or use of any image or recording of the type or
under the circumstances described in this section in any
otherwise lawful manner by any person subject to criminal
charge or civil liability.
``(f) Limitation.--Only a person physically present at
the time of, and engaging or assisting another in engaging
in, a violation of this section is subject to criminal charge
or civil liability under this section. A person shall not be
subject to such charge or liability by reason of the conduct
of an agent, employee, or contractor of that person or
because images or recordings captured in violation of this
section were solicited, bought, used, or sold by that person.
``(g) Law Enforcement Exemption.--The prohibitions of
this section do not apply with respect to official law
enforcement activities.
``(h) Savings.--Nothing in this section shall be taken to
preempt any right or remedy otherwise available under
Federal, State or local law.''.
(b) Technical Amendment.--The analysis for chapter 89 of
title 18, United States Code, is amended by adding at the end
the following:

``1822. Harassment for commercial purposes.''.

SEC. 4. PERSONAL INTRUSION FOR COMMERCIAL PURPOSES.

(a) Definition of For Commercial Purposes.--
(1) In general.--In this section, the term `for
commercial purposes' means with the expectation of sale,
financial gain, or other consideration.
(2) Rule of construction.--For purposes of this section,
a visual image, sound recording, or other physical impression
shall not be found to have been, or intended to have been,
captured for commercial purposes unless it was intended to
be, or was in fact, sold, published, or transmitted in
interstate or foreign commerce, or unless the person
attempting to capture such image, recording, or impression
moved in interstate or foreign commerce in order to capture
such image, recording, or impression.

[[Page S5235]]

(b) Trespass for Commercial Purposes and Invasion of
Legitimate Interest in Privacy for Commercial Purposes.--
(1) Trespass for commercial purposes.--It shall be
unlawful to trespass on private property in order to capture
any type of visual image, sound recording, or other physical
impression of any person for commercial purposes.
(2) Invasion of legitimate interest in privacy for
commercial purposes.--It shall be unlawful to capture any
type of visual image, sound recording, or other physical
impression for commercial purposes of a personal or familial
activity through the use of a visual or auditory enhancement
device, even if no physical trespass has occurred, if--
(A) the subject of the image, sound recording, or other
physical impression has a reasonable expectation of privacy
with respect to the personal or familial activity captured;
and
(B) the image, sound recording, or other physical
impression could not have been captured without a trespass if
not produced by the use of the enhancement device.
(c) Cause of Action.--Any person who is legally present
in the United States who is subjected to a violation of this
section may, in a civil action against the person engaging in
the violation, obtain any appropriate relief, including
compensatory damages, punitive damages and injunctive and
declaratory relief. A person obtaining relief may be either
or both the owner of the property or the person whose visual
or auditory impression has been captured. In any civil action
or proceeding to enforce a provision of this section, the
court shall allow the prevailing party reasonable attorney's
fees as part of the costs. In awarding attorney's fees, the
court shall include expert fees as part of the attorney's
fees.
(d) Limitation on Defenses.--It is not a defense to an
action under this section that--
(1) no image or recording was captured; or
(2) no image or recording was sold.
(e) Use of Images.--Nothing in this section may be
construed to make the sale, transmission, publication,
broadcast, or use of any image or recording of the type or
under the circumstances described herein in any otherwise
lawful manner by any person subject to criminal charge or
civil liability.
(f) Limitation.--Only a person physically present at the
time of, and engaging or assisting another in engaging in, a
violation of this section is subject to civil liability under
this section. A person shall not be subject to such liability
by reason of the conduct of an agent, employee, or contractor
of that person, or because images or recordings captured in
violation of this section were solicited, bought, used, or
sold by that person.
(g) Law Enforcement Exemption.--The prohibitions of this
section do not apply with respect to official law enforcement
activities.
(h) Savings.--Nothing in this section shall be taken to
preempt any right or remedy otherwise available under
Federal, State, or local law.

SEC. 5. SEVERABILITY.

If any provision of this Act, an amendment made by this
Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, the amendments made by this Act, and
the application of the provisions of such to any person or
circumstance shall not be affected thereby.
____

University of Chicago Law School,

Chicago, IL, April 30, 1998.
Hon. Dianne Feinstein,
Senate Judiciary Committee, Technology, Terrorism, and
Government Information Subcommittee, Washington, DC.
Dear Senator Feinstein: This is in response to a request
for my views on issues of federalism raised by the current
effort to prevent harassment and invasion of privacy by
certain photographers and journalists. In brief: From the
standpoint of the constitutional structure, I believe that
these efforts reflect an entirely legitimate exercise of
national power. I spell out those reasons in short compass
here.
There can be no doubt that in its current form, the
proposal is constitutional under the commerce clause. Each of
the provisions is carefully drafted to apply if and only if
there is a clear nexus with interstate commerce. Thus under
existing law, the constitutional question is a simple one,
and there is no plausible basis for legal objection.
The more plausible objection is not about technical law but
about the spirit of the federal structure. A critic might
claim that state law already protects against certain
harassing and invasive behavior, and that state law,
statutory or common, can easily be adapted to provide
stronger protections. Since the several states are generally
in the business of preventing against trespass and
threatening behavior, why should the federal government
intervene? Isn't this the kind of problem best handled at the
state level?
These questions would be good ones if they are taken to
suggest that state law could, in theory, take care of many of
the underlying problems. But the questions are not good ones
if they are taken to suggest that in practice, state law
does, or will do, all that should be done. There are three
important points here.
First, state law is both highly variable and in many places
ill-defined--a complex mixture of statutory and common law, a
mixture that does not, in many places, give a clear signal
against the kind of conduct that the proposed legislation
would ban. For example, the standards for reckless
endangerment are extremely variable. Nor is it at all clear
that most state trespass law prohibits the use of high-
technology methods to get access to people's private
enclaves. In state court, the common law of trespass is in a
notorious and continuing state of flux. So long as the
commerce clause is satisfied, there is an entirely legitimate
national interest in giving a clear signal that certain
behavior is not to be tolerated amidst uncertain and
divergent state practices.
Second, the national government often supplements or builds
on state law in order to give stronger deterrence. In many
states, for example, there are special laws protecting
against racial discrimination, environmental harm, or
uncompensated invasions of private property. But by itself,
this is not an argument that the national government should
not provide such measures as well. Congress often acts in
order to provide the kind of deterrence that national law--
with the availability of federal prosecutors and federal
courts--is uniquely in a position to provide. The simple
truth is that harassing and invasive practices have not been
adequately deterred by state law and the national government
can provide further protection. So long as the commerce
clause is satisfied, this is a perfectly ordinary and
entirely acceptable exercise of national power.
Third, it is important to see that the commercial
incentives for engaging in harassing or invasive behavior are
emphatically national incentives. If a photographer employed
by the National Enquirer chases a movie star or an ordinary
person in California, the potential profits are national, and
it is the national nature of the profits that makes such
behavior so likely. In addition, the nature of the harm tends
to involve interstate activity, with movement of people and
products across state lines to procure the relevant
photograph (when a photograph is involved). If both profits
and harms were limited to a single state, it might make more
sense to say that each state can handle the problem on its
own. But since both profits and harms are national in
character, it is far less likely that states are able to do
so, as actual practice has tended to show.
I conclude that there is no legal objection to the bill
from the standpoint of federalism. I also conclude that the
bill fits well within proper practice from the standpoint of
maintaining Congress' limited place in the federal structure.
In short, this is a national problem calling for a national
response.
Sincerely,
Cass R. Sunstein.
____

Harvard Law School,

Cambridge, MA, December 7, 1997.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, D.C.
Dear Senator Feinstein: I have reviewed the draft
legislation entitled ``The Protection From Personal Intrusion
for Commercial Purposes Act,'' and wanted to write to express
my support for legislation. In my view, the legislation
represents a balanced and constitutional approach to an
increasingly important problem. It has been drafted, I
believe, to avoid jeopardizing First Amendment values, and
has a firm constitutional foundation in the Commerce Power,
and also, in my view, in Congress' Section Five power under
the Fourteenth Amendment.
The draft bill proposes three changes to strengthen privacy
protections nationally. First, the statute establishes a
criminal penalty for harassing conduct engaged in for
commercial purposes. Second, the statute establishes a civil
penalty for trespass for commercial purposes. And third, the
statute establishes a civil penalty for invasions of
legitimate interests in privacy for commercial purposes. I
consider each provision briefly below.
1. Harassment for commercial purposes
The aim of this provision is to target the repeated and
intentional chasing or following of a person in order to
record impressions of that person for commercial purpose. The
statute would make such conduct criminal, and prescribes
enhanced penalties if death or serious bodily harm is
proximately caused by such conduct.
A number of points about this provision are important to
consider.
(1) The statute is targeting traditionally prohibited
conduct, though more narrowly than might ordinarily be
expected. The statute is more narrow first because it
addresses conduct engaged in for commercial purposes only,
and second because it targets chasing or following only for
purposes of recording visual and auditory impressions. Both
limitations might be said to raise problems of
underinclusiveness. In both cases, however, no constitutional
problem is presented.
The first narrowing (to commercial purposes) is
jurisdictionally required, as the conduct aimed at here is
only that affecting interstate commerce. Even it Congress
could regulate more broadly, the choice to narrow the scope
of its regulation does not reveal any illegitimate content
based purpose in selectively proscribing speech conduct. See
generally Elena Kagan, The Changing Faces of First Amendment
Neutrality: R.A.V. v. St.

[[Page S5236]]

Paul, Rust v. Sullivan, and the Problem of Content-Based
Underinclusion, 1992 Sup. Ct. Rev. 29. For the same reason, I
do not believe the second narrowing (to visual and auditory
impressions) raises any significant First Amendment concern.
(2) This is a criminal statute, so one should expect the
courts to read the scope of proscribed conduct narrowly. That
means that the statute is likely to be applied only to people
who intentionally engage in this form of conduct. I believe
the statute makes that clear, since in the definition of
``harasses,'' ``persistently'' modifies ``follows or
chases.'' That modifier will give courts adequate room to
narrow the statute to conduct that is properly within its
scope.
(3) Finally, because the statute only punishes conduct
which proximately causes serious harm, the statute will not
penalize conduct which results in serious harm, but is
actually, or legally, ``caused'' by something else. By using
the term ``proximately,'' the statute again invites courts to
narrow the application of the statute to cases where the
legally relevant cause of the harm is the conduct being
regulated.
2. Trespass for commercial purposes
The second protection for privacy added by this bill is a
protection against trespass for commercial purposes. While
the protection of property has traditionally been a function
for state regulation, the proposed statute limits the
protection to trespasses engaged in for commercial purposes,
and by definition, commercial purposes affecting interstate
commerce.
There is a long history of support for a provision such as
this, especially in the context of civil rights statutes.
Congress can well take note of a weakness in the patchwork of
state protection against trespass, and supplement such
protections with a federal statute. In my view, this statute
would fit that form.
3. Invasions of legitimate interests in privacy for
commercial purposes
The final section of this proposed bill protects against
the invasion of ``legitimate interests in privacy'' for
commercial purposes. While I believe this provision is
constitutional, it is the most innovative of the three, and
deserves special attention.
The interesting aspect of this statute is its method for
specifying the type of invasion that is not permitted. The
baseline for the statute's protection is the common law
protection against trespass. Historically, trespass law was
the foundation of our privacy jurisprudence, and this statute
is faithful to that tradition.
The innovation in the statute is to extend trespass law to
protect interests that are invaded simply because of
technological advances--advances that make it possible to
capture visual and auditory impressions that would not have
been capturable with older technologies. The statute protects
traditional interests against these new technologies.
In a sense, the statute aims at translating our traditional
protections of privacy into a context where technology has
given eavesdroppers a power that they would not originally
have had.
In my view, such an effort by Congress is important, and
laudable. It is important because we should not allow
constitutional rights to be hostage to technology. If
technology advances, jeopardizing our constitutional
protections, then it is appropriate to adjust rights to
compensate for changes in technology. See Lawrence Lessig,
Reading the Constitution in Cyberspace, 45 Emory L. J. 869,
871-75 (1996).
More importantly, it is laudable that Congress take the
lead in this process. Of course historically, the Supreme
Court has also taken part in keeping the constitution up to
date, translating old provisions to take account of current
problems. But it has always done so with hesitation, since
the act of updating often requires political judgments that
it doesn't feel well positioned to make.
Far better if those judgments are made by Congress. And in
my view, this proposed statute does just that. It represents
an effort by Congress to take the lead in the protection of
privacy against the threats that changing technology
presents. Whatever one's view about the Court doing the same,
it is emphatically the role of Congress to support this
tradition of translation.
If there are other questions, I can answer, please don't
hesitate to contact me.
With kind regards,
Lawrence Lessig.
____

USC,

The Law School,

Los Angeles, CA, Nov. 26, 1997.
Senator Diane Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: At the request of Mr. Richard Pfohl
of your staff, I have reviewed the proposed bill to prohibit
harassment for commercial purposes and to create a cause of
action for personal intrusion for commercial purposes. The
bill is narrowly written and does not violate the First
Amendment. Moreover, even in light of the Supreme Court's
decisions restricting the scope of Congress' commerce power,
the bill is likely to be upheld as within the scope of
congressional authority.
At the outset, it is important to note that the bill does
not prohibit anything from being published or broadcast. Nor
does it create any liability for the publication or broadcast
of any image or information. Both parts of the bill expressly
state: ``Nothing in this section may be construed to make the
sale, transmission, publication, broadcast, or use of any
image or recording of the type or under the circumstances
described in this section in any otherwise lawful manner by
any person subject to criminal charge or civil liability.''
These provisions are reinforced by sections in both parts
of the bill that limit liability to those ``physically
present at the time of, and engaging or assisting another in
engaging in violation of this section.'' No liability is
allowed ``because images or recordings captured in violation
of this section were solicited, bought, used, or sold by that
person.''
I emphasize these provisions because they make it clear
that the bill does not restrict speech or create liability
for any publication or broadcast. Rather, the bill prohibits
and creates liability for specific dangerous and intrusive
activity. At most, the effect on the press is indirect in
limiting certain conduct in the gathering of information.
In general, the Supreme Court has held that content-neutral
laws that have the effect of restricting speech must meet
intermediate scrutiny; that is, they must be shown to be
substantially related to an important government purpose.
Turner Broadcast System v. Federal Communication Commission,
114 S.Ct. 2445, 2458 (1994). Although I think that there is a
strong argument that the bill does not restrict speech at
all, even if a court found that it did, intermediate scrutiny
would be met. The government has an important interest in
stopping persistently physically following or chasing a
person ``in a manner that causes the person to have a
reasonable fear of bodily injury.'' This is simply an
extension of the prohibition of assaults; there is no First
Amendment right for the media to engage in an assault in
gathering information. Similarly, there is an important
interest in preventing trespass or intrusion on to private
property, physically or with technology. There is no First
Amendment right for the media to trespass in gathering
information.
Although the Supreme Court has recognized that ``without
some protection for seeking out the news, freedom of the
press could be eviscerated,'' Branzburg v. Hayes, 408 U.S.
665, 681 (1972), the Court also consistently has refused to
find that the First Amendment provides the press any right to
violate the law in gathering information. The Court has
explained that ``the First Amendment does not guarantee the
press a constitutional right of special access to information
not available to the public generally.'' Id. at 684. No
member of the public has a right to commit an assault or a
trespass; nor can the press in gathering information. As the
Court declared in Associated Press v. NLRB, 301 U.S. 103,
132-33 (1937): ``The business of the Associated Press is not
immune from regulation because it is an agency of the press.
The publisher of a newspaper has no special immunity from the
application of general laws. He has no special privilege to
invade the rights and liberties of others. He must answer for
libel. He may be punished for contempt of court. He is
subject to the anti-trust laws. Like others he must pay
equitable and nondiscriminatory taxes on his business. The
regulation here in question has no relation whatever to the
impartial distribution of news.''
The Supreme Court expressly held that the press is not
exempt from general laws in Cohen v. Cowles Media Co., 501
U.S. 663 (1991). A newspaper published the identity of a
source who had been promised that his name would not be
disclosed. The Court rejected the argument that holding the
newspaper liable for breach of contract would violate the
First Amendment. The Court stressed that the case involved
the application of a general law that in no way was motivated
by a desire to interfere with the press. The Court said:
``Generally applicable laws do not offend the First Amendment
simply because their enforcement against the press has
incidental effects on its ability to gather and report the
news. [E]nforcement of such general laws against the press is
not subject to stricter scrutiny than would be applied to
enforcement against other persons or organizations.'' Id. at
669-70.
The bill prohibits anyone from persistently following
another in a manner that reasonably creates fear of bodily
injury or committing a trespass for purposes of capturing a
visual or auditory recording. There is no First Amendment
right to engage in such activity and no First Amendment basis
for an exemption to such a narrowly tailored law.
The other possible constitutional challenge to the bill
would be on the ground that it exceeds the scope of Congress'
commerce clause authority. From 1936 until April 26, 1995,
the Supreme Court did not find one federal law
unconstitutional as exceeding the scope of Congress' commerce
power. Then in United States v. Lopez, 115 S.Ct. 1624 (1995),
the Supreme Court declared unconstitutional the Gun-Free
School Zones Act of 1990 which made it a federal crime to
have a gun within 1,000 feet of a school. After reviewing the
history of decisions under the commerce clause, the Court
identified three types of activities that Congress can
regulate under this power. First, Congress can ``regulate the
use of the channels of interstate commerce.'' Id. at 1629.
Second, the Court said that Congress may regulate persons or
things in interstate commerce and ``to protect the
instrumentalities of interstate commerce.'' 115 S.Ct. at
1629. Finally, the Court said that

[[Page S5237]]

Congress may ``regulate those activities having a substantial
relation to interstate commerce.'' Id. at 1629-30.
The bill is limiting to regulating commercial activity in
that it prohibits and creates liability for ``harrassment for
commercial purposes'' and ``trespass and invasion of
legitimate interest in privacy for commercial purposes.''
Commercial purposes is defined as activity ``with the
expectation of sale, financial gain, or other
consideration.'' In Lopez, the Court emphasized the absence
of commercial activity in the law or its application.
Moreover, the bill fits within the categories articulated
in Lopez. Through fact-finding, Congress should be able to
document that those who engaged in such activity are engaged
in interstate commerce. This, too, is different from Lopez,
where the Court stress the lack of any evidence linking the
prohibited conduct to interstate commerce.
Please let me know if I can be of further assistance.
Sincerely,
Erwin Chemerinsky.
____

University of Chicago Law School,

Chicago, IL, Nov. 24, 1997.
Senator Dianne Feinstein,
Senate Judiciary Committee,
Technology, Terrorism, and Government Information
Subcommittee, Washington, DC.
Dear Senator Feinstein: This letter is in response to your
request for my views on the constitutionally of the proposed
statute designed to protect against harassment and invasion
of privacy by exploitative photographers, sound recorders,
and film crews. The bill would create a new federal criminal
and civil offense and two additional grounds for federal
civil liability. I believe that the bill is constitutional as
drafted. Here is a brief analysis of the legal issues.
The first question is whether the federal government has
the authority to enact a measure of this kind. The most
likely candidate is the commerce clause. Under the commerce
clause, the federal government does have this authority,
especially in light of the fact that the bill, as written,
requires a clear connection between the interstate commerce
and the harassing and invasive action. See the rules of
construction in sections 2 and 4. In fact this connection is
stronger than that in several of the cases in which the Court
has upheld congressional action under the commerce clause.
See Wickard v. Filburn, 317 U.S. 111 (1942); United States v.
Darby, 312 U.S. 100 (1941). United States v. Lopez, 115 S.
Ct. 1624 (1995), is not to the contrary, for in that case,
Congress did not require any connection between interstate
commerce and the prohibited possession of firearms on or near
school property. It is conceivable that the bill might be
challenged in some cases in which a photographer did not move
in interstate commerce and did not sell anything in
interstate commerce but intended to do so (see the rules of
construction). But under the cases cited above, its probably
constitutional even under such circumstances, because the
photographer would be part of a ``class'' of participants in
interstate commerce.
The second question is whether the bill violates the first
amendment. Here it is important to distinguish between a
constitutional challenge to the bill ``on its face'' and a
challenge to the bill ``as applied.'' I believe that a facial
challenge would fail. The bill is content neutral, see Turner
Broadcasting Inc. v. FCC, 114 S. Ct. 2445 (1994); its
prohibitions apply regardless of the particular content of
the underlying material. This is especially important, since
the Court treats content-neutral restrictions more hospitably
than content-based restrictions. See id. Moreover, the bill
is directed at action, not at speech itself; speech itself is
left unregulated by the bill. In a way the constitutional
attack on the bill amounts to a claimed first amendment right
of access to private arenas and to information a right that
the Court has generally denied. See Pell v. Procunier, 417
U.S. 817 (1974); Houchins v. KQED, 438 U.S. 1 (1978);
Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
To be sure, this is not the end of the matter: A content-
neutral restriction on action may create constitutional
problems if the action would result in restrictions on the
production of speech, as this bill would undoubtedly do.
Imagine, for example, a law that defined ``trespass'' to
include any effort to take photographs near the White House
or the Supreme Court. Cf. United States v. Kokinda, 497 U.S.
720 (1990). In assessing the validity of such a restriction,
some relevant questions are whether the restriction is
justified by sufficient government interests, whether there
are less restrictive alternatives for protecting those
interests, and whether the restriction on the production of
speech is small or large. See id. In most cases covered by
the bill, the restriction would be amply justified. If a
photographer has chased someone in such a way as to produce a
reasonable fear of bodily injury, the government has a strong
reason to provide protection, and the bill is a narrow
tailored means of doing so. Thus section 2, adding the new
criminal offense, seems on firm ground.
Section 4 is designed to ensure that photographers do not
engage in trespasses, or the equivalent of trespasses, in
order to invade people's privacy without their consent. This
section is also supported by the strong government interest
in ensuring that people have a secure private realm, one into
which those using the channels of interstate commerce do not
enter without consent. In most of its applications, section 4
is also likely to be constitutional. Assume, for example,
that a photographer has trespassed into the private property
of a movie star in order to take pictures of a dinner or a
romantic encounter. Since the images are themselves
unregulated (see section 4(d)), the government almost
certainly has sufficient grounds to forbid this kind of
behavior, a trespass at common law. Although the Supreme
Court has subjected some common law rules to first amendment
limitations, it has never held that the law of trespass, even
though it restricts activity that would produce speech,
generally raises constitutional questions. Thus I conclude
that section 4 is constitutional in most of its likely
applications.
There are some contexts in which harder questions might be
raised. Assume, for example, that a presidential candidate is
engaged in unlawful activity on private property, and that a
journalist and a photographer have used technological devices
in order to obtain a record of that activity. Under section
4(b)(2), there has been a kind of federal tort, giving rise
of compensatory and punitive damages. It is possible that the
special first amendment liability in such cases. Cf. New York
Times v. Sullivan, 376 U.S. 254 (1964). Thus a series of
cases might be imagined in which section 4, and conceivably
even section 2, would give rise to a reasonable
constitutional challenge as applied. This is true, however,
of a large range of generally permissible statutes; the
question for present purposes is whether the bill would be
constitutional on its face. I conclude that it would be.
I hope that these brief remarks are helpful.
Sincerely,
Cass R. Sunstein.

____________________