[Congressional Record Volume 144, Number 122 (Tuesday, September 15, 1998)]
[Senate]
[Pages S10383-S10386]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. WYDEN (for himself, Mr. Daschle, Mr. Smith of Oregon, Mr. 
        Baucus, Mr. Craig, Mr. Johnson, and Mr. Burns):
  S. 2472. A bill to amend the Federal Land Policy and Management Act 
of 1976 to exempt the holder of a right-of-way on public lands granted, 
issued, or renewed for an electric energy generation, transmission, or 
distribution system from certain strict liability requirements 
otherwise imposed in connection with such a right-of-way; to the 
Committee on Energy and Natural Resources.


                       rights-of-way legislation

 Mr. WYDEN. Mr. President, I am pleased to be joined by 
Senators Daschle, Smith of Oregon, Baucus, Burns, Johnson, and Craig, 
in introducing legislation making an important adjustment to the way 
the Government manages rights-of-way over federal lands. The provisions 
in this bill address the situation involving liability standards for 
electric utilities that utilize federal rights-of-ways to provide 
electricity to rural communities.

  I am pleased to be working on this issue with my good friends and 
colleagues from Oregon, Bob Smith and Peter DeFazio. Chairman Smith has 
introduced similar legislation in the House of Representatives, which 
received a hearing in the House Resources Committee earlier this year. 
During that hearing, one of my constituents, Mr. Bill Kopacz of 
Midstate Electric in LaPine, Oregon testified on the need to reform the 
current federal policy of requiring strict liability for fires that 
occur in right-of-ways.
  Under strict liability, the holder of a right of way is responsible 
for all injury, loss, or damage, including fire suppression costs, 
caused by the holder of the right of way without regard to the holder's 
negligence.
  The problem that this legislation addresses is best illustrated by 
the experience of the Midstate Electric Cooperative of LaPine, Oregon.
  As a matter of prudent maintenance, Midstate trims or removes trees 
on right-of-ways that pose a risk of falling onto electric lines. On 
federal rights-of-way, the cooperative consults with the appropriate 
land management agency--which of course must approve these management 
actions. After proposing the removal of a number of trees on a Forest 
Service right-of-way in 1984, Midstate was told by the agency that it 
could cut some down, but had to leave other specified trees standing. 
Of course the predictable happened--one of the trees that Midstate had 
proposed cutting, which the Forest Service had refused to allow to be 
removed, fell into a power line and started a fire.
  In the end it cost more than $326,850 to put that fire out--and 
Midstate Electric got the bill. Since the fire resulted from a 
management decision of the Forest Service, Midstate went to court in an 
attempt to appropriately assign the financial liability of fighting the 
fire. Midstate lost the court action because of a ruling which 
interpreted right-of-way contracts as holding the co-op and other 
right-of-way lessees to a strict liability standard.
  The 1976 Federal Land Policy and Management Act provided federal 
agencies with the authority to impose strict liability for costs 
associated with hazards on federal lands. Prior to 1976, agencies 
recovered costs associated with hazards, such as costs required to put 
out a fire, on the basis of normal negligence.
  This bill would replace that strict liability standard in favor of a 
normal negligence standard that is routinely used in private right-of-
way contracts. The new standard will say: if you caused it, you are 
responsible for it. Rural electric cooperatives, investor-owned 
utilities and municipalities are not looking to pass the buck to the 
American taxpayer. If they are negligent in maintaining federal rights-
of-way, they should bear the responsibility. However, by enforcing any 
standard more rigid than that, the land management agencies are 
purposefully transferring cost to private citizens.
  The minimum impact of the current strict liability policy is higher 
electric rates for those rural communities who live in close proximity 
to public lands. The possibility exists, however, of even more punitive 
impacts in the form of the loss of insurance coverage for entities with 
federal rights-of-way liability.
  In my judgement, this legislation restores an appropriate balance to 
the shared responsibility of both the land manager and the utility in 
reducing the natural hazards along a right of

[[Page S10384]]

way. As we saw in the Midstate case, because the Forest Service bears 
no exposure to costs associated with fire and risk prevention, the 
Forest Service simply did not allow the full use of measures to reduce 
those risks.
  This legislation will not only benefit the state of Oregon. Utilities 
all through the United States have rights-of-way permits with our land 
management agencies. This proposal is of interest in states such as 
California, Idaho, Florida, Minnesota, Montana, Wyoming and 
Pennsylvania. I believe my proposal is fair and balanced legislation 
that protects our rural communities. I look forward to working with my 
colleagues and the Administration to perfect this legislation in the 
waning days of the 105th Congress.
                                 ______
                                 
      By Mr. BREAUX:
  S. 2473. A bill to amend the Internal Revenue Code of 1986 to 
increase the deduction for meal and entertainment expenses of small 
businesses; to the Committee on Finance.


                            tax legislation

  Mr. BREAUX. Mr. President, today I introduce a very important bill 
for small businesses and the self-employed in Louisiana and throughout 
our country. My bill would restore the 80 percent deduction for 
business meals and entertainment expenses, thus eliminating a tax 
burden that has seriously hampered many small businesses in our 
country.
  Small business is a powerful economic engine, both nationwide and in 
Louisiana. Small businesses have helped to create the prosperity that 
we have all enjoyed in the last few years. They are leaders in the 
innovation and technology development that will sustain our economy in 
the 21st century. Nationwide, small business employs 53 percent of the 
private work force, contributes 47 percent of all sales in the country, 
and is responsible for 50 percent of the private gross domestic 
product.
  For these reasons, I believe the tax code should encourage, not 
discourage, small business development and growth. For the more than 
225,000 self-employed and for the thousands of small businesses in 
Louisiana, business meals and entertainment take the place of 
advertising, marketing, and conference meetings. These expenses are a 
core business development cost. As such, a large percentage of these 
costs should be deductible.
  For many years, businesses were allowed to deduct 100 percent of 
business meals and entertainment expenses. In 1987, this deduction was 
reduced to 80 percent. The deduction was further reduced in 1994 to 50 
percent because of the misconception that these meals were ``three 
martini lunches.''
  Contrary to this perception, studies show that the primary 
beneficiary of the business meal deduction is not the wealthy business 
person. Studies indicate that over two-thirds of the business meal 
spenders have incomes of less than $60,000 and 37 percent have incomes 
below $40,000. Low to moderately priced restaurants are the most 
popular types for business meals, with the average check equaling less 
than $20. In addition, 50 percent of most business meals occur in small 
towns and rural areas.
  In 1995, just one year after the deduction was reduced to 50 percent, 
the White House Conference on Small Business established the 
restoration of the deduction as one of its top priorities for boosting 
small business. In Louisiana alone, it is expected that the positive 
economic impact of this proposal could exceed $67 million in 
industries, such as the travel and restaurant industry, that employ 
over 120,000 people. I urge my colleagues to support this legislation.
  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. 2473

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

     SECTION 1. SMALL BUSINESSES ALLOWED INCREASED DEDUCTION FOR 
                   MEAL AND ENTERTAINMENT EXPENSES.

       (a) In General.--Subsection (n) of section 274 of the 
     Internal Revenue Code of 1986 (relating to only 50 percent of 
     meal and entertainment expenses allowed as deduction) is 
     amended by adding at the end the following new paragraph:
       ``(4) Special rule for small businesses.--
       ``(A) In general.--In the case of any taxpayer which is a 
     small business, paragraph (1) shall be applied by 
     substituting `the applicable percentage (as defined in 
     paragraph (3)(B))' for `50 percent'.
       ``(B) Small business.--For purposes of this paragraph, the 
     term `small business' means, with respect to expenses paid or 
     incurred during any taxable year--
       ``(i) any corporation which meets the requirements of 
     section 55(e)(1) for such year, and
       ``(ii) any partnership or sole proprietorship which would 
     meet such requirements if it were a corporation.''
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to taxable years beginning after December 31, 
     1998.
                                 ______
                                 
      By Mr. D'AMATO:
  S. 2475. A bill to amend title IV of the Employee Retirement Income 
Security Act of 1974 to protect the rights of participants and 
beneficiaries of terminated pension plans; to the Committee on Labor 
and Human Resources.


            pension plan participant protection act of 1998

 Mr. D'AMATO. Mr. President, today I am introducing legislation 
to strengthen protections to retirees who, through no fault of their 
own, find themselves without a job or the pension they worked hard for 
because their company went under.
  This situation happened in 1991 when Pan Am World Airways went out of 
business leaving 45,000 employees--15,000 of which reside in New York 
State--jobless and without their promised pensions. For the last seven 
years these hardworking Americans have fought a losing battle with the 
Pension Benefits Guaranty Corporation (PBGC) to get a fair benefit 
calculation and appeals process. In addition to former Pan Am 
employees, this issue affects hundreds of thousands of former employees 
of companies whose pension plans have been taken over by the PBGC.
  Our senior citizens are a valuable resource to this country. Many of 
them are entitled to receive private pensions as a result of their 
loyal years of service to their employers. In 1974, the Employee 
Retirement Income Security Act (ERISA) was enacted to provide certain 
basic protections to retirees regarding their pensions.
  In general, private employers are required to act as fiduciaries with 
respect to most of their activities in connection with their pension 
plans. Those fiduciaries are prohibited from commingling plan assets, 
must provide regular disclosure concerning plan assets and are required 
to act ``solely in the interest'' of the participants. Participants may 
bring suit, in Federal Court, if required information is not provided 
within 30 days of request. A participant may seek a determination of 
the amount of his or her benefit, in Federal Court, if the plan fails 
or refuses to render a determination as to the amount of benefit the 
participant is entitled to receive under the plan.
  ERISA also created a Federal agency, the PBGC, to pay benefits to 
participants in pension plans who are unable to pay such benefits. PBGC 
functions as an insurer, collecting premiums from solvent plans and 
paying benefits to participants in failed plans. Since the enactment of 
ERISA, the PBGC has become the Trustee of plans involving more than one 
million participants.
  While the PBGC does an admirable job with respect to its obligations 
to continue payments to participants in terminated plans, those 
participants do not enjoy the same legal protections guaranteed to all 
plan participants under ERISA. In general, PBGC performs its functions 
as a government agency and not as a fiduciary.
  Mr. President, in plans trusteed by the PBGC, participants have no 
right to disclosure regarding the amount of their benefits and may not 
appeal an adverse determination until an appealable decision is 
rendered--which in many cases does not occur for more than ten years. 
Once issued, the PBGC decisions must be appealed within 45 days or a 
participant may lose all rights. If a determination is appealed, 
participants must follow a complicated and time consuming appeals 
process. Many of our senior citizens are confused and overwhelmed by 
this process and as a result, inadvertently surrender many valuable 
legal rights.
  In addition, under current law, the PBGC is permitted to commingle 
funds from all of the retirement plans that it terminates and may use 
those retirement funds to pay for expenses of other

[[Page S10385]]

plans as well as its general overhead expenses.
  At a minimum, our senior citizens, in plans trusteed by the PBGC, 
need and deserve the same protections accorded to every other 
participant in a plan covered by ERISA. This bill restores some of 
those protections and requires that the PBGC issue an appealable 
decision within one year of the date the PBGC becomes the Trustee of a 
plan. The bill provides for the establishment of participants' 
committees to represent the interests of the participants and permits 
such committee to serve as Trustee of the terminated plan. Where more 
than one group seeks appointment as Trustee the federal courts would be 
required to select the Trustee that would best serve the interests of 
the participants.
  My bill also establishes a participant advocates office to assist 
participants with explanations, benefits disputes and, if necessary, to 
appeal adverse determinations by the PBGC. In addition, the bill 
clarifies existing law, empowering the federal courts to remove a 
Trustee in the event the Trustee commits any breach of it fiduciary 
duty.
  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. 2475

       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 ``Pension Plan Participant 
     Protection Act of 1998''.

     SEC. 2. DUTIES OF THE PENSION BENEFIT GUARANTY CORPORATION 
                   WHILE SERVING AS TRUSTEE OF TERMINATED PLAN.

       (a) In General.--Section 4042(d)(3) of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1342(d)(3)) 
     is amended--
       (1) by inserting ``(A)'' after ``(3)''; and
       (2) by adding at the end the following new subparagraphs:
       ``(B) The corporation is subject to the same requirements 
     of reporting and disclosure in connection with a pension plan 
     for which the corporation is serving as trustee pursuant to 
     this section as those of any plan administrator of an 
     employee pension benefit plan under part 1 of subtitle B of 
     title I.
       ``(C) The corporation is subject to the same fiduciary 
     duties in connection with a pension plan for which the 
     corporation is serving as trustee pursuant to this section, 
     including the determination and payment of plan benefits, as 
     those of any fiduciary of an employee pension benefit plan 
     under part 1 of subtitle B of title I. The corporation shall 
     maintain such separate books and records and retain such 
     separate counsel on its behalf as may be necessary for 
     carrying out such duties.
       ``(D) For purposes of applying part 5 of subtitle B of 
     title I in the enforcement of subparagraphs (B) and (C)--
       ``(i) any civil monetary penalty which may be assessed by 
     the Secretary of Labor against the corporation under any 
     provision of section 502(c) shall be assessed in the full 
     amount specified in such provision,
       ``(ii) a civil action against the corporation as fiduciary 
     under section 502(a)(2) for relief under section 409 may be 
     brought by any affected party, and, in any such action by an 
     affected party in which the corporation is removed as 
     trustee, the replacement trustee shall be selected by the 
     court from any list of qualified candidates which may be 
     provided by such affected party, and
       ``(iii) any review under section 502 by a district court of 
     the United States of a benefit determination by the 
     corporation shall be de novo.
       ``(E) In any case in which the corporation serves as 
     trustee for a terminated pension plan pursuant to this 
     section, the corporation shall issue its final determination 
     regarding any benefit payable under the plan not later than 
     one year after the date of the corporation's appointment as 
     trustee. Any failure by the corporation to comply with the 
     requirements of this subparagraph shall be deemed an action 
     of the corporation upon which a cause of action may be 
     brought against the corporation under section 4003(f)(1).''.
       (b) Conforming Amendment.--Section 4023 of such Act (29 
     U.S.C. 1323) is amended--
       (1) by inserting ``(a)'' after ``Sec. 4023.''; and
       (2) by adding at the end the following new subsection:
       ``(b) Subsection (a) shall not apply with respect to the 
     corporation while the corporation is serving in its fiduciary 
     capacity in accordance with section 4042(d)(3)(B).''.

     SEC. 3. PARTICIPANTS' COMMITTEES.

       (a) In General.--Subtitle C of title IV of the Employee 
     Retirement Income Security Act of 1974 is amended by 
     inserting after section 4048 (29 U.S.C. 1348) the following 
     new section:


                       ``participants' committees

       ``Sec. 4049. (a) In General.--
       ``(1) Appointment of committee.--Except as provided in 
     paragraph (3), as soon as practicable after the appointment 
     of a trustee under section 4042, the trustee shall appoint a 
     committee of participants under the plan.
       ``(2) Requests for adequate representation.--On request of 
     an affected party, the court may order the appointment of 
     additional committees of participants if necessary to assure 
     adequate representation of participants. The trustee shall 
     appoint any such committee.
       ``(3) Small businesses.--On request of an affected party in 
     a case in which the plan sponsor is a small business and for 
     cause, the court may order that a committee of participants 
     not be appointed.
       ``(b) Membership.--A committee of participants appointed 
     under subsection (a) shall ordinarily consist of the persons, 
     willing to serve, that were in pay status under the plan as 
     of the date of the termination of the plan and have the seven 
     largest nonforfeitable benefits under the plan, or of the 
     members of a committee organized by participants before such 
     date, if such committee was fairly chosen and is 
     representative of the participants of the plan.
       ``(c) Powers and Duties of Committees.--
       ``(1) Appointment of attorneys, accountants, etc.--At a 
     scheduled meeting of a committee appointed under subsection 
     (a), at which a majority of the members of such committee are 
     present, and with the court's approval, such committee may 
     select and authorize the employment by such committee of one 
     or more attorneys, accountants, or other agents to represent 
     or perform services for such committee.
       ``(2) Preclusion of conflicts of interest.--An attorney or 
     accountant employed to represent a committee appointed under 
     subsection (a) may not, while employed by such committee, 
     represent any other entity having an adverse interest in 
     connection with the case. Representation of one or more 
     participants of the same class as represented by the 
     committee shall not per se constitute the representation of 
     an adverse interest.
       ``(3) Specific powers.--A committee appointed under 
     subsection (a) may--
       ``(A) consult with the trustee concerning the 
     administration of the case,
       ``(B) investigate the acts, conduct, assets, liabilities, 
     and financial condition of the plan, the operation of the 
     plan sponsor's financial operations, and the desirability of 
     the continuance of the plan, and any other matter relevant to 
     the case,
       ``(C) participate in the formulation of the plan for 
     distribution of plan assets, advise those represented by such 
     committee of such committee's determinations as to any plan 
     for distribution of the plan's assets, and collect and file 
     with the court acceptances or rejections of the plan for 
     distribution of plan assets,
       ``(D) request the court for the appointment of the 
     committee or any other person as an alternative trustee, and
       ``(E) perform such other services as are in the interest of 
     plan participants and beneficiaries.
       ``(4) Meeting with trustee.--As soon as practicable after 
     the appointment of a committee under subsection (a), the 
     trustee shall meet with such committee to transact such 
     business as may be necessary and proper.''.
       (b) Conforming Amendment.--The table of contents in section 
     1 of such Act is amended by inserting after the item relating 
     to section 4048 the following new item:

``Sec. 4049. Participants' committees.''.

     SEC. 4. TRUSTEESHIP OF TERMINATED PLANS.

       (a) In General.--Section 4042(c) of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1342(c)) is amended--
       (1) by inserting ``(1)'' after ``(c)''; and
       (2) by inserting before paragraph (3) the following new 
     paragraph:
       ``(2) The court may appoint the corporation, a 
     participants' committee, or any other person to serve as 
     trustee under paragraph (1). Upon the application of any two 
     or more of the foregoing to serve as trustee, the 
     determination of the court of which to appoint shall be based 
     on its determination of which applicant is most qualified to 
     carry out the fiduciary duties of the trustee with respect to 
     participants and beneficiaries without conflicts of 
     interest.''.
       (b) Payment or Reimbursement of Reasonable Fees and 
     Expenses.--Section 4042(h) of such Act (29 U.S.C. 1342(h)) is 
     amended by adding at the end the following new paragraph:
       ``(3) The reasonable fees and expenses of a trustee 
     appointed under this section (other than the corporation), of 
     any participants' committee, and of any counsel, accountants, 
     actuaries, and other professional service personnel shall be 
     paid, directly or by means of reimbursement, from the assets 
     of the terminated plan.''.

     SEC. 5. PARTICIPANT'S ADVOCATE.

       (a) In General.--Subtitle D of title IV of the Employee 
     Retirement Income Security Act of 1974 is amended by adding 
     after section 4071 (29 U.S.C. 1371) the following new 
     section:


                   ``office of participant's advocate

       ``(a) In General.--The Secretary of Labor shall establish 
     in the Department of Labor an Office of Participant's 
     Advocate, to be headed by a Participant's Advocate.
       ``(b) Functions.--The Participant's Advocate shall, upon 
     request of participants of terminated pension plans--
       ``(1) counsel participants and beneficiaries of such plans 
     in connection with their rights to benefits thereunder, and
       ``(2) provide legal representation before the corporation 
     and in court to such participants

[[Page S10386]]

     who have been denied benefits by the corporation.
       ``(b) Fees.--The Office shall require only such fees for 
     its services as may be prescribed in regulations of the 
     Secretary of Labor.
       ``(c) Staff.--The Participant's Advocate shall appoint such 
     attorneys, actuaries, and accountants as may be necessary to 
     assist the Participant's Advocate in carrying out the 
     functions of the Office, and may appoint such additional 
     personnel as may be necessary to provide adequate support for 
     the Office.
       ``(d) Notice.--Each notice of a benefit determination 
     issued by the corporation to a participant or beneficiary 
     under a terminated pension plan shall include a notice (in 
     such form as shall be prescribed in regulations of the 
     Secretary of Labor) describing the services of the 
     Participant's Advocate's Office.''.
       (b) Conforming Amendment.--The table of contents in section 
     1 of such Act is amended by inserting after the item relating 
     to section 4071 the following new item:

``Sec. 4071. Office of Participant's Advocate.''.
       (c) Effective Date.--The Secretary of Labor shall establish 
     the Office of Participant's Advocate pursuant to the 
     amendments made by this section not later than one year after 
     the date of the enactment of this Act.

     SEC. 6. RULES GOVERNING TRUSTEESHIP BY THE CORPORATION.

       (a) In General.--Section 4042 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1342) is amended by 
     adding at the end the following new subsection:
       ``(i) In any case in which the corporation serves as 
     trustee of a terminated pension plan under this section--
       ``(1) the corporation shall segregate assets of the 
     terminated plan from the assets of any other plan or any 
     other assets held by the corporation,
       ``(2) the corporation may not use any assets of the plan 
     for any purpose other than payment of benefits or reasonable 
     administrative expenses directly attributable to the 
     termination and administration of the plan, excluding any 
     generally applicable overhead expenses of the corporation, 
     and
       ``(3) the corporation shall obtain the services of 
     independent contractors in connection with the termination or 
     administration of the plan only through a competitive bidding 
     process.''.

     SEC. 7. EFFECTIVE DATE.

       The amendments made by this Act shall apply with respect to 
     plan terminations--
       (1) the termination date for which occurs on or after 
     January 1, 1990, and
       (2) for which the final distribution of assets occurs on or 
     after the date of the enactment of this Act.
                                 ______
                                 
      By Mr. ABRAHAM (for himself, Mr. Hatch, Mr. DeWine, Mr. 
        Hutchinson, and Mr. Brownback):
  S. 2476. A bill for the relief of Wei Jengsheng; to the Committee on 
the Judiciary.


                wei jengsheng freedom of conscience act

 Mr. ABRAHAM. Mr. President, today I seek my colleagues' 
support for the Wei Jengsheng Freedom of Conscience Act. This bill will 
grant lawful permanent residence to writer and philosopher Wei 
Jengsheng, one of the most heroic individuals the international human 
rights community has known.
  For years, Mr. President, Wei has stood up to an oppressive Chinese 
government, calling for freedom and democracy through speeches, 
writings, and as a prominent participant in the Democracy Wall 
movement. His dedication to the principles we hold dear, and on which 
our nation was founded, brought him 15 years of torture and 
imprisonment at the hands of the Chinese communist regime. Seriously 
ill, Wei was released only after great international public outcry. Now 
essentially exiled, he lives in the United States on a temporary visa 
and cannot return to China without facing further imprisonment.
  Mr. President, granting Wei permanent residence will show that 
America stands by those who are willing to stand up for the principles 
we cherish. It also will help Wei in his continuing fight for freedom 
and democracy in China.
  I woul like to thank Senators Hatch, DeWine, Hutchinson, and 
Brownback for cosponsoring this bill. I should note also that this 
legislation has been endorsed by important human rights groups such as 
Laogai Research Foundation and Human Rights in China.
  I urge my colleagues to send a strong signal about America's 
commitment to human rights, human freedom, and the dignity of the 
individual by passing this bill to grant Wei Jengsheng lawful permanent 
residence in the United States.

                          ____________________