[Congressional Record Volume 144, Number 151 (Wednesday, October 21, 1998)]
[Senate]
[Pages S12741-S12810]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  OMNIBUS CONSOLIDATED AND EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR 
                  FISCAL YEAR 1999--CONFERENCE REPORT

  The PRESIDENT pro tempore. Under the previous order, the clerk will 
report the conference report.
  The assistant legislative clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     4328), have agreed to recommend and do recommend to their 
     respective Houses this report, signed by a majority of the 
     conferees.


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                                                                        JOHN W. WARNER, Chairman.
----------------------------------------------------------------------------------------------------------------


[[Page S12742]]

  The Senate proceeded to consider the conference report.
  (The conference report is printed in the House proceedings of the 
Record of October 19, 1998.)
  Mr. LOTT. Mr. President, if there is no objection, I would like to 
engage in a colloquy with the distinguished Chairman of the 
Appropriations Committee, the senior Senator from Alaska.
  Mr. STEVENS. I would be happy to.
  Mr. LOTT. I understand that this bill contains a provision which 
prohibits the FBI from charging a user fee or gun tax on all firearms 
purchases that take place once the national instant criminal background 
check system takes effect on November 30 of this year--Is that correct?
  Mr. STEVENS. Yes. The Brady Act did not intend, nor did it authorize 
the Department of Justice to charge a tax or fee to law abiding 
citizens to exercise their Second Amendment right. The National Instant 
Check System (NICS) is a national criminal justice program which was 
designed to quickly screen prospective firearms purchasers--weeding out 
prohibited gun pruchases while ensuring that the sale of a firearm to a 
law-abiding citizen could go forth without significant delay. The NICS 
is a federal program of benefit to all citizens and therefore the cost 
should be and will be borne by the federal government in view of the 
absence of any enabling provision relating to assessment of a user fee 
to gun owners.
  Mr. LOTT. I am pleased to hear that, since I supported the 
establishment and the creation of a national instant check program. It 
was certainly my understanding that this program was meant to 
facilitate gun purchases by law abiding Americans and not cause a 
chilling effect on our rights. We have provided millions of dollars--
including $42 million in this bill--for the FBI to implement NICS 
pursuant to the law. As I also remember, NICS is specifically 
prohibited from becoming a repository of approved firearms transfer 
records and firearms owners? Is that correct?
  Mr. STEVENS. Again the Senator is correct. The establishment of NICS 
contained important elements in the law designed to protect the privacy 
of individual law-abiding gun owners. One of the greatest concerns and 
legitimate fears of law abiding gun owners is that the federal 
government will create a federal gun owner registration system where 
law abiding gun owners exercise of their constitutional rights will be 
carefully monitored. This is why there are a number of provisions in 
law which prohibit such action by the government. One such law is the 
Firearms Owners Protection Act, passed in 1986, which specifically 
prohibits any record of firearms owners and firearms purchases from 
being maintained or recorded, for any period of time, in a facility 
owned, managed, or controlled by the United States government.
  Mr. LOTT. I thank the Senator for making that point clear. Is it not 
also the case that the Brady law itself includes a prohibition on the 
centralization and creation of a federal gun registration system?
  Mr. STEVENS. Yes, the Brady Act clearly states that upon approval of 
a firearm transaction, the instant check system shall ``destroy all 
records of the system with respect to the call (other than the 
identifying number and the date the number was assigned) and all 
records of the system relating to the transfer.'' 18 U.S.C. 
Sec. 922(t)(2). Additionally, Section 103 of the Brady Act prohibits 
the establishment of a firearms registration system to prevent any 
records generated by the instant check system from being transferred to 
a facility owned, managed or controlled by the United States 
government.

  Mr. LOTT. Well, let me understand something. Does that mean that the 
FBI or the Department of Justice would be able to collect and maintain 
all personally identifying information on transactions relating to 
approved firearms transfers for one and one half years, or for any 
period of time?
  Mr. STEVENS. The national instant criminal background check system 
clearly prohibits such action by the FBI. The centralization and 
retention of firearms transaction information and records on firearm 
owners would create a de facto system of firearms registration which 
has clearly not intended by the Brady Act or any other provision of 
federal law. In fact it was specifically prohibited.
  Mr. LOTT. Specifically, though, is the NICS statute clear on this 
prohibition of maintaining an audit log or other repository of approved 
firearms transaction and personal information on firearms owners? Is 
there any doubt as to Congress' intent in this regard?
  Mr. STEVENS. I do not believe the law could be any clearer. The NICS 
statute is transparent and unambiguous on the point that the instant 
check system ``shall destroy'' such records. Subsection (t)(2) of 18 
United States Code, Section 922, is clearly drafted so that destruction 
of an approved firearms transaction and personal identifying records 
shall occur contemporaneously upon the system's approval of the 
firearms transfer, the assignment of a unique identifying number, and 
upon the immediate voice or electronic conveyance of such approval and 
unique identifying number to the federal firearms dealer making the 
NICS inquiry.
  Mr. LOTT. Is there any information that the FBI is permitted to 
maintain from an approved firearms transaction that goes through NICS?
  Mr. STEVENS. The only information or records on approved firearms 
transfers that the FBI is permitted to maintain in a central registry 
is the ``NICS Transaction Number'' (NTN) and the date the transaction 
was requested. See, 18 U.S.C. Sec. 922(t)(2)(C).
  Mr. LOTT. I would like to be sure that the rights of law abiding gun 
owners are not violated by FBI's operation of NICS. Do you have any 
suggestions in this regard, to ensure that the laws are being followed?
  Mr. STEVENS. I suggest that a General Accounting Office (GAO) audit 
be conducted periodically to ensure Americans that the retention of 
information and records run through the NICS is not being maintained, 
for any purpose, unlawfully.
  Mr. LOTT. I certainly would second that recommendation. This matter 
is too important to the American people to allow any opportunity for 
abuse.
                                  ____

  Mr. DASCHLE. Mr. President, the statement of managers contains 
language concerning the proposed HCFA rule that would defer to state 
law on the issue of physician supervision of nurse anesthetists. As I 
understand it, this is non-statutory language, and nothing in the bill 
would prohibit HCFA from moving forward with the publication of the 
final rule on this issue. I would like to ask my colleague from North 
Dakota, who is a member of the Committee on Appropriations, is that his 
understanding of the language as well?
  Mr. DORGAN. Mr. President, the language to which my colleague refers 
is only included in the statement of managers and does not have a 
binding effect on HCFA. As a matter of law, nothing in the bill or the 
report language would prohibit HCFA from moving forward with the final 
rule.
  Mr. DASCHLE. Mr. President, then it would be correct that HCFA could 
base its final decision on data or information that is already 
available, rather than conducting any new studies. My concern here is 
to ensure that HCFA is neither discouraged from nor delayed in moving 
forward in publishing a final rule. It is my understanding that nothing 
in the report language of this year's Labor/HHS Appropriations bill 
would prevent HCFA from moving ahead and that any further review of 
data could follow HCFA's publication of a final rule.
  Mr. DORGAN. Mr. President, the Senator is correct. The statement of 
managers does not mandate, as a matter of law, any further studies by 
HCFA on this issue. Nor would HCFA be impeded from moving forward with 
issuing a final rule regarding the physician supervision issue. In 
fact, the language clearly states it is not intended to discourage or 
delay HCFA from moving forward.
  I know this issue is particularly important to some of us because 
nurse anesthetists are the sole anesthesia providers in 70% of rural 
hospitals. Finalizing this proposed rule is critical to rural America.
  Mr. CONRAD. Mr. President, I appreciate the responses from my 
colleague from North Dakota, and I wish to briefly comment on this 
matter. As the

[[Page S12743]]

sponsor in previous congresses of legislation that would require HCFA 
to defer to state law on this issue, I am pleased that HCFA has finally 
issued a proposed rule that would in fact defer to state law. This 
issue has been hanging over us for many years, and it seems that the 
only way to finally resolve it is for HCFA to publish its final rule 
based upon the proposed rule and let the states decide. As a member of 
the Senate Finance Committee, I would add that we included a provision 
in our Medicare package in 1995 that would defer to state law on the 
issue of physician supervision of nurse anesthetists. That provision 
was not included in the final package as a result of an agreement 
between the two associations to focus on a reimbursement issue instead. 
However, I want to emphasize earlier comments that HCFA should neither 
be discouraged nor delayed in moving forward in publishing a final 
rule.
  Mr. DORGAN. Mr. President, I share my colleague from North Dakota's 
position on the nurse anesthetist issue and thank him for his comments. 
I believe that HCFA should move forward and issue a final rule removing 
the physician supervision requirement and defer to state law.
  Mr. DASCHLE. Mr. President, I thank my colleagues for their comments 
regarding the statement of managers' language on nurse anesthetists, an 
issue important to all of us, and know we all will follow the issue 
closely in the months to come.
  Mr. STEVENS. Mr. President, I would like to engage the distinguished 
Senator form New Mexico, the chairman of the Energy and Water 
Development Subcommittee, on the subject of funding which is provided 
in P.L. 105-245 for the existing joint U.S.--Russian program, for the 
development of gas reactor technology to dispose of excess weapons-
derived plutonium.
  As the chairman of the subcommittee knows, the purpose of this 
program is to develop a new reactor technology which is not only more 
efficient in burning weapons plutonium but is melt-down proof and more 
thermally efficient than existing reactors. Because of the promise of 
this technology, the Russians are very enthusiastic about it and the 
French nuclear company Framatome and the Japanese company Fuji Electric 
have been active participants. Further, because most of the technical 
work on this program is being performed by Russian nuclear scientists 
and engineers, program costs are reduced considerably the those same 
Russian scientist and engineers are engaged in stimulating non-nuclear 
weapons work.
  It is my understanding that this unique and innovative U.S.--Russian 
program to destroy weapons plutonium is the result of the very 
considerable expense and efforts of a particular U.S. company over 
several years. Is this also the Subcommittee Chairman's understanding?
  Mr. DOMENICI. Yes, it is.
  Mr. STEVENS. Is it also the Senator's understanding that from all 
indications, this program has been well run and has an existing and 
effective management structure with both U.S. and Russian 
representation?
  Mr. DOMENICI. Yes it certainly is. I would note that Secretary of 
Energy Pena noted and has appreciated the cooperation that has occurred 
in this area under the current partnership program. In a joint 
statement signed on March 11 of this year, Secretary Pena and Deputy 
Minister of Minatom Mr. Ryabev specified those areas in which further 
scientific research will be necessary; plutonium fuel, neutron physics, 
and materials. That joint statement was an important indicator of the 
success and purpose of the gas reactor partnership and future efforts 
should be consistent with that statement.
  Mr. STEVENS. Then I would like to ask the Senator from New Mexico his 
understanding of language in the report that states that of the $5 
million made available for this program in Fiscal Year 1999, $2 million 
is for ``work to be performed in the United States by the Department of 
Energy and other U.S. contractors.'' Specifically, is it the Senator's 
understanding or intent that the Department of Energy should receive 
most of this money or impose a new management structure over this 
program that is working so well and is so well accepted by the 
Russians?
  Mr. DOMENICI. I thank the Senator from Alaska for raising this key 
issue. I can assure the Senator it is my wish that the Department of 
Energy utilize the already established partnership that created this 
important program and has management it so well.
  Mr. STEVENS. I thank the distinguished Senator from New Mexico for 
this clarification.
  Mr. GRASSLEY. Mr. President, Otto von Bismarck, former Chancellor of 
Germany, once said, ``Laws are like sausages. It is better not to see 
them being made.'' Yet even Bismarck would have gagged over how this 
bill evolved.
  Several times in recent years, I have disparaged the process of 
eleventh-hour budgeting because it inevitably leads to one thing: a 
rising tide that lifts all spending. All the Republican programs get 
higher funding, all the Democrat programs get more funding. The budget 
busts apart at the seams. The taxpayers are the losers.
  And it's not just the budget process. Bismarck would have croaked had 
he seen how the normal legislative process--bad as it is--was bypassed, 
becoming a free-for-all. It's as if the Clinton Administration and the 
Congress had a power outage, and the looters came from everywhere and 
picked the taxpayers' pockets clean. The legislative process was 
stripped of its integrity.
  This isn't an ``omnibus'' bill; it's an ``ominous'' bill.
  Many of us in this body have brought the good news home to our 
constituents. We have delivered the first balanced budget in a 
generation. We created surpluses as far as the eye can see. The debt is 
finally being paid down. Our children have a brighter future because of 
it. And Social Security will be saved for the Baby Boomer generation. 
This is the vision we had when we passed the bipartisan Balanced Budget 
Act of 1997.
  I intend to vote against this bill. The reason is because it 
threatens that vision. A vision we committed to just one year ago. 
Specifically, there are three reasons I oppose it. First, it threatens 
what we accomplished last year. It compromises the Balanced Budget Act. 
This bill proves that the Clinton White House and Congress can never 
resist the temptation to spend money, even though we've promised to 
save the money for Social Security and to pay down the debt. That 
signifies a total lack of fiscal discipline.
  Second, it squanders the surplus. It would soak up $21 billion of it 
in the coming year alone. This is just one month after the announcement 
of the nation's first surplus in 29 years. Both sides were patting each 
other on the back. Meanwhile, we couldn't wait to spend it. We could 
have and should have found offsets for this money. I predict that in 
coming years, this will be Congress' way around the budget agreement--
Call any program an emergency and the budget agreement is by-passed.
  Third, the bill, is a budget-buster. Maybe not technically, maybe not 
now. But in pushing $4.1 billion of spending decisions into next year, 
it's the first die cast in ensuring another rising tide of spending 
next year. In addition, it's not really clear what the budgetary impact 
is of all the legislative mushrooms we're passing in this budget. The 
funding for these programs is like fertilizer. And next year these 
mushrooms become BIG mushrooms. And that creates further budgetary 
pressures for more spending.
  In short, Mr. President, this process shows we have reverted to the 
same attitude, the same mindset, the same practice, that brought us 
monumental debt levels in the first place.
  Moreover, I deplore the intellectual dishonesty of the President of 
the United States. For nine months, I have been applauding his stated 
commitment to save the surplus to ensure the viability of Social 
Security. Then he pushes for a budget that spends $21 billion of that 
surplus in just one year. The following day, the President appears in 
the Rose Garden and announces we've agreed to a budget deal, and saved 
Social Security in the process.
  Mr. President, this cynical statement by the President, and the 
precedent it sets, hasn't saved Social Security. It has threatened 
Social Security. It has opened up the flood gates. It ensures future 
raids on future surpluses. And the President now has no moral authority 
to use those surpluses exclusively for Social Security. He squandered 
that moral authority.

[[Page S12744]]

  It is also intellectually dishonest of the President to oppose tax 
cuts, using the argument that tax cuts would jeopardize Social 
Security, yet assume that spending the surplus would not.
  These reasons, Mr. President, constitute why I am seriously 
disappointed in this process, and in this budget. I regret my vote 
against it because there are many provisions in this bill that I fully 
support. Some of them I am even responsible for.
  For instance, there is approximately $300 million for Iowa farmers in 
additional relief. The relief package includes AMTA payments, disaster 
assistance and new operating loans. In addition, there is tax relief 
for farmers, including Permanent Income Averaging, accelerated health 
insurance premium deductibility, and a 5-year net operating loss carry-
back.
  There are other provisions I fought for and support. Chief among them 
are:
  Home health care funding; Education funding for new teachers; Head 
Start funding; IMF reforms and funding; Extension of Chapter 12 
bankruptcy provisions for family farmers; LIHEAP funding at levels 
beyond the administration's request; Anti-drug funding; and, Roads and 
highways funding, at the highest levels in history.
  These are all provisions that I worked hard for, supported and that I 
believe are essential. However, they could have been paid for without 
this revival of the practice of incrementally mortgaging the future.
  The easy thing for me to do would be to vote for this bill. But when 
the process of governing breaks down and puts our commitments and our 
future at risk; when Congress's recent fiscal discipline falls apart; 
and, when our elected leadership abdicates its responsibilities of 
governing, it's time, in my view, to say ``no.''


                  district of columbia appropriations

  Mr. FAIRCLOTH. Mr. President, I rise to make a few remarks concerning 
the conference report on the Columbia appropriations, fiscal year 1999. 
This conference report is the product of a productive debate between 
the Senate and House subcommittees. This is a good bill, a bipartisan 
bill, and I urge my colleagues to support it.
  I want to thank my subcommittee members, Senator Boxer, the ranking 
member, and Senator Hutchison for their hard work and assistance in 
putting the Senate bill together. I would also like to thank the 
chairman of the Senate Appropriations Committee, Senator Stevens, and 
the distinguished ranking member, Senator Byrd, for their guidance and 
support.
  Mr. President, the conference report largely ratifies the consensus 
budget for local funds adopted by the Mayor, the Council, and the 
Financial Authority. The Congress created that budget process, and it 
has imposed some much needed fiscal discipline on the District's 
budget. Instead of drowning in red ink, the budget of the Nation's 
Capital is now solidly in the black, with a surplus of over 
$300,000,000 for fiscal year 1998.
  The conference report appropriates over $372,000,000 for 
implementation of the National Capital Revitalization and Self-
Government Improvement Act of 1997. With the exception of the capital 
budget for the District court system, the conference report supports 
the President's budget request for implementation of the act.
  The conferees did not provide the $50,000,000 requested by the 
President to capitalize the National Capital Revitalization Corporation 
[NCRC]. The Congress has not been consulted as to either the 
composition of the Board of the NCRC, its duties, the scope of its 
activities, the relationship between the NCRC and other Federal or 
local agencies, the relationship between the NCRC and Congress, or the 
extent to which actions taken by the NCRC may conflict with previous 
economic incentives adopted by the Congress on behalf of the District. 
Despite these concerns, the President's nonemergency supplemental 
request included $25,000,000 to capitalize the NCRC.
  The District of Columbia was recently named the worst city in the 
country to raise children. The children of our Nation's Capital deserve 
better. Our conference report provides $7,000,000 to pay for new 
facilities at the Boys Town operations in the District; over 
$15,000,000 for public charter schools; and $200,000 for mentoring 
services for at-risk children.
  The conference report also provides funding for several nonprofit 
organizations located in the District of Columbia. These projects have 
broad bipartisan support and will bolster the District's downtown 
revitalization efforts.
  The conference report provides over $75,000,000 in Federal funds to 
improve public safety and repair a crumbling infrastructure in the 
Nation's Capital. Included in this amount is over $18,000,000 for 
repairs to the District's public safety facilities, including badly 
needed capital improvements to Metropolitan Police Department [MPD] 
facilities. In addition, the conference report provides the United 
States Park Police with $8,500,000 for a new helicopter, which will 
assist the MPD in meeting the District's public safety needs. In 
addition, the conference report appropriates $25,000 to expand the 
subway station next to the planned Washington Convention Center.
  Perhaps most important, the conference report includes $25,000,000 to 
continue the work of management reform. If there is one reason why the 
Nation's Capital has any hope of recovery, it is because District 
agencies which have been mismanaged for years are finally being 
reformed and restructured. The Financial Authority and the District's 
Chief Management Officer, Camille Barnett, are now midway through the 
process of cleaning up the largest agencies of the District government. 
While the District is making headway in reversing years of 
mismanagement, much work needs to be done to improve service delivery 
to District residents. The funds provided in this bill will go toward 
projects that will enhance government efficiency and service delivery, 
such as expanded emergency medical services and technology 
modernization.
  The conference report prohibits the use of Federal and local funds 
for the implementation of a needle exchange program; for abortion; and 
for a ballot initiative to legalize controlled substances. It also 
provides badly needed adoption reforms for the District of Columbia.
  This conference report would not have been possible without the hard 
work and cooperation of my friend, Congressman Charles Taylor, the 
chairman of the House Subcommittee on the District of Columbia. We are 
confident that this conference report will be supported by the Senate, 
the House of Representatives, and the President.


                     section 139 of interior title

  Mr. BINGAMAN. Mr. President, I would like to express my appreciation 
to the managers of the Interior title of the Omnibus Appropriations Act 
for including section 139, which ratifies payments made by small 
refiners under preexisting onshore and offshore royalty-in-kind 
programs. I was pleased to work with Senators Enzi, Domenici, Thomas, 
Johnson, and Landrieu on this issue. My office served as the point of 
contact between the Minerals Management Service and the small refiners 
in negotiating the final text of this section, which was then included 
by the managers in the bill, so I would like to make two observations 
in relation to it. The purpose of this section is to relieve small 
refiners of potential additional financial obligations that they are 
not in a position to bear, and to avoid the likelihood that a number of 
small refiners who participated in a federal program to increase their 
access to crude oil for refining would be forced into bankruptcy over a 
question as to whether the amount invoiced by government for that crude 
oil was correct or not. I do not believe that anything in this section 
should be construed as expressing congressional intent on any question 
other than the one of whether small refiners should be relieved of this 
potential problem. In my opinion, this section does not constitute a 
congressional view for or against the use of posted prices for the 
valuation of crude oil produced from federal leases.


                     cwc implementation act of 1998

 Mr. HELMS. Mr. President, following Senate approval of the 
resolution of ratification for the Chemical Weapons Convention (CWC) 
and subsequent ratification of the treaty by the President, it became 
necessary for the United States to enact legislation to implement its 
various domestic obligations. The Foreign Relations and Judiciary 
Committees of the Senate immediately fulfilled their obligation to 
prepare implementing legislation once the treaty

[[Page S12745]]

had been ratified. On May 23, 1997, the full Senate passed S. 610--
``the Chemical Weapons Convention Implementation Act of 1997.'' Soon 
thereafter, on November 12, 1997, the House of Representatives passed 
the implementing legislation, together with sanctions on Russian firms 
that are assisting Iran's ballistic missile program.
  I regret that it has taken so long to enact the implementing 
legislation into law, if for no other reason than that I expect 
numerous U.S. companies to challenge the constitutionality of the 
treaty and overturn it in the courts. Unfortunately, final resolution 
of the legal issues surrounding the CWC, as well as full U.S. 
compliance with the treaty, has been delayed this entire session of 
Congress because of President Clinton's opposition to the unrelated 
missile sanctions provisions of the bill. Indeed, the President sought 
to delay and derail CWC implementing legislation throughout the entire 
spring. The President alone is responsible for putting the United 
States into noncompliance by delaying and then ultimately vetoing the 
bill (on June 23, 1998).
  It is important that those who are frustrated with the slow pace of 
U.S. implementation of the CWC understand that the Congress has 
discharged its obligation to provide implementing legislation for the 
President's signature not once--but twice. It is the President, not 
Congress, who has blocked speedy and complete adherence to the treaty.
  For the record, I note that two trade associations were directly 
involved in the crafting of the CWC's implementing legislation. The 
President and CEO of the Chemical Manufacturers Association wrote to me 
on May 7, 1998, stating that S. 610 was ``a reasonable approach to meet 
U.S. obligations under the CWC and protect industry's interests.'' The 
Vice President for Regulatory Affairs of the American Forest and Paper 
Association wrote to Senator Hatch on May 21, 1997, offering its 
support for S. 610 since the bill ``contains a number of provisions 
that the forest products industry believes are crucial to ensuring that 
implementation of the CWC is reasonable and meets the stated purpose of 
the treaty.''
  I submit the following assessment which details the most significant 
provisions of the implementing legislation, together with an 
explanation of the Senate's rationale.

       Section 3. Definitions. Section 3 specifically lists those 
     chemical formulae (and a few bio-toxins) falling under the 
     terms: ``Schedule 1 chemical agent''; ``Schedule 2 chemical 
     agent''; and ``Schedule 3 chemical agent''. Any chemical not 
     listed in Section 3 as either a Schedule 1, 2, or 3 chemical 
     agent is not subject to the any of the requirements under the 
     legislation relating to such chemical agents (e.g. data 
     declaration and routine inspections).
       The Annex on Chemicals of the CWC excludes some chemicals 
     which are capable of being used as chemical weapons 
     precursors, but which also have wide commercial applications. 
     As a result, verification measures are not applied under the 
     Convention to those chemicals. For this reason, if the CWC 
     were to be expanded in scope, the most likely candidates for 
     addition to the Annex are dual-use chemicals which are 
     produced in large commercial quantities for purposes not 
     prohibited under the Convention. The addition of these 
     chemicals to the Annex on Chemicals likely would increase the 
     number of businesses affected by the Convention's 
     verification regime, entailing additional reporting and data 
     declarations from companies, and subjecting additional 
     facilities to routine inspections.
       Thus the implementing legislation is deliberately 
     structured to ensure that a change in law will be required 
     before any provision of the Verification Annex can be applied 
     to any new chemical or biological substance added to the 
     Annex on Chemicals. This will provide both the Congress and 
     the American public sufficient opportunity to examine 
     proposals by the executive branch to expand the CWC. Indeed, 
     depending upon the extent to which the addition of a chemical 
     (or other type of substance) is judged to substantively 
     increase the scope of application of the CWC, such a change 
     also might require the advice and consent of the Senate.
       The American Forest and Paper Association specifically 
     supported the requirement that ``additions or deletions from 
     the list would only be permitted by legislative amendment, 
     and not through the administrative regulatory process.''
       Section 102. No Abridgement of Constitutional Rights. This 
     section makes clear that the Federal Government may not force 
     anyone to waive any Constitutional right as a condition for 
     entering into a contract with the federal government or as a 
     condition for receiving any other form of benefits from the 
     government. This provision works in conjunction with Section 
     308, which amends The Office of Federal Procurement Policy 
     Act. Many of the companies subject to the reporting and 
     inspection requirements of the CWC work under contract to the 
     federal government. Sections 102 and 308 protect these 
     companies by prohibiting the government from imposing, as a 
     condition of a contract, the requirement that they must agree 
     to warrantless searches under the CWC or forego any other 
     Constitutional right (such as the right to challenge the 
     constitutionality of the CWC). The same protections apply to 
     individuals receiving benefits from the United States.
       Section 103. Civil Liability of the United States. Section 
     103 is necessary to address Fifth Amendment problems which 
     arise with respect to the CWC. The Convention requires that 
     the United States provide foreign inspectors with intrusive 
     access into numerous U.S. businesses; this, together with the 
     mandatory data declaration requirements, holds at risk trade 
     secrets and critical proprietary information. For instance, 
     the authority of inspectors to collect data and take samples 
     for analysis may constitute a form of illegal seizure and the 
     taking of private property without compensation. But the CWC 
     contains no provisions to ensure just compensation to those 
     whose property has been taken.
       Proprietary information is often the basis for a chemical 
     company's competitive edge. As a practical matter, a wide 
     variety of things are considered proprietary or sensitive. 
     For instance, the following are often considered to be 
     ``trade secrets'': (1) the formula of a new drug or specialty 
     chemical; (2) a synthetic route that requires the fewest 
     steps or the cheapest raw materials; (3) the form, source, 
     composition, and purity of raw materials or solvents; (4) a 
     new catalyst that improves the selectivity, efficiency, or 
     yield of a reaction; (5) the precise order and timing with 
     which chemicals are fed into a reactor; (6) subtle changes in 
     pressure or temperature at key steps in a process; (7) 
     isolation methods that give the highest yields consistent 
     with good recycling of solvents and reagents; (8) expansion 
     and marketing plans; (9) raw materials and suppliers; (10) 
     manufacturing cost data; (11) prices and sales figures; (12) 
     names of technical personnel working on a particular project; 
     and (13) customer lists.
       The theft of any one of these items could result in a loss 
     of revenue and investment that could damage a large company, 
     and drive a small one out of business. Because some trade 
     secrets are not all that complex, even simple visual 
     inspection could reveal proprietary information of great 
     value to a competitor. During routine inspections, for 
     example, companies will run the risk that a skilled chemical 
     engineer equipped with knowledge of the target facility and a 
     list of specific questions to be answered will learn a great 
     deal about that business' activities.
       The Fifth Amendment provides that no private property shall 
     ``be taken for public use without just compensation.'' As one 
     noted constitutional scholar, Ronald Rotunda, warned the 
     Foreign Relations Committee on March 31, 1997: ``If the 
     federal government would simply take this property, the 
     Constitution requires that it pay just compensation. If the 
     federal government sets up a legal structure that allows 
     international inspectors to make off with intellectual 
     property, there is a `taking' for purposes of the just 
     compensation clause.''
       The CWC, however, does not provide for just compensation in 
     the event of misuse of treaty inspection rights. In the 
     absence of a treaty-mandated remedy, the only means of 
     guaranteeing Fifth Amendment protections is to hold the 
     federal government liable for the legal structure it has 
     created by ratifying the CWC. It is the federal government, 
     after all, which approved a treaty giving foreign nationals 
     access to U.S. facilities, thereby creating the potential for 
     the taking of private property.
       Section 103 provides U.S. companies and citizens with the 
     right to bring a civil action for money damages against the 
     United States for the actions of foreign inspectors and other 
     OPCW employees (as well as U.S. government personnel) 
     undertaken pursuant to, or under the color of the CWC or the 
     implementing legislation. It precludes the federal government 
     from raising sovereign immunity as a defense, and establishes 
     a process whereby, once a prima facie case has been 
     established that proprietary information has been divulged or 
     taken, the burden to disprove the claim falls upon the United 
     States. In so doing, Section 103 establishes a reasonable 
     standard of evidence to be used in resolving this type of 
     civil action, given the ambiguity that often surrounds 
     suspicions of the theft of trade secrets.
       Section 103 defers action on a civil claim for one year, 
     providing a period of time for the United States to pursue 
     diplomatic and other remedies to seek redress for the claim. 
     However, once the claim moves forward, Section 103 
     establishes a clear policy and process by which the U.S. 
     government shall pursue recoupment of all funds paid in 
     satisfaction of any tort or taking for which the U.S. has 
     been held liable. In particular, the United States will 
     impose severe sanctions on all foreign entities (both 
     governmental and private) involved in the theft of the trade 
     secret in question. Sanctions against foreign governments can 
     be waived by the President on a case-by-case basis, though 
     sanctions against foreign persons are lifted only once the 
     U.S. has received ``full and complete compensation.''
       These provisions are designed to operate together with the 
     requirements of Condition

[[Page S12746]]

     16 of the resolution of ratification for the CWC. Pursuant to 
     that condition, in the event that ``persuasive information'' 
     becomes available indicating that a U.S. citizen has suffered 
     financial losses or damages due to the unauthorized 
     disclosure of confidential business information, the 
     President is required to secure a waiver of immunity from 
     jurisdiction for any foreign person responsible for financial 
     losses or damages to a U.S. citizen, or to withhold half of 
     the U.S. contribution to the OPCW until the situation has 
     been resolved ``in a manner satisfactory to the United States 
     person who has suffered the damages. . .''
       Section 302. Facility Agreements. Section 302 prohibits the 
     United States from concluding facility agreements which would 
     prohibit U.S. businesses from withholding consent to an 
     inspection request for any reason or no reason (thereby 
     triggering a requirement for a search warrant under Section 
     305). It also ensures that representatives from U.S. 
     companies may participate in preparations for the negotiation 
     of a facility agreement, and may observe such negotiations to 
     the maximum extent practicable.
       Section 303. Authority to Conduct Inspections. In addition 
     to providing the legal basis by which U.S. companies may be 
     inspected by foreign personnel, Section 303 ensures that at 
     least one special agent of the Federal Bureau of 
     Investigation shall accompany each inspection conducted under 
     the Convention. This ensures a minimum of protection against 
     the possible theft of trade secrets for U.S. companies.
       Section 303 also prohibits OSHA or EPA employees from 
     escorting or otherwise accompanying inspection teams, and 
     requires that the number of U.S. government personnel be kept 
     to the minimum number necessary. The Administration asserted, 
     in response to a question for the record before the Senate 
     Select Committee on Intelligence, that the U.S. Government 
     would be permitted ``to use information or materials obtained 
     during inspections in regulatory, civil, or criminal 
     proceedings conducted for the purpose of law enforcement, 
     including those that are not directly related to enforcement 
     of the CWC.'' This alarmed many companies.
       The American Forest and Paper Association stated its 
     support for Section 302(b)(2)(B), noting that ``[t]he treaty 
     should not be used as an omnibus vehicle for regulatory 
     inspections unrelated to its intended purpose. We believe 
     that it would be inappropriate to include such government 
     officials [from OSHA and EPA] on an international 
     inspection team formed for the purposes set out in the CWC 
     and would merely serve to detract from the intent of the 
     inspection.''
       By barring EPA and OSHA officials from participating in CWC 
     inspections, Section 303 prevents the Administration from 
     using the Convention to gain a degree of access to facilities 
     which it otherwise is denied. As Professor Rotunda noted in 
     his March 31, 1997, letter: ``Searches that violate the 
     Fourth Amendment are not cured of the violation by the simple 
     expedient of a treaty ratification or an executive 
     agreement.''
       Finally, Section 303 establishes a reasonable legal 
     standard by which the President is expected to evaluate the 
     risk posed by an individual inspector to the national 
     security or economic well-being of the United States. The 
     President has the right under the CWC to object to an 
     individual serving as an inspector in the United States. 
     Section 303 obligates him to give ``great weight to his 
     reasonable belief that . . . the participation of such an 
     individual as a member of an inspection team would pose a 
     risk to the national security or economic well-being of the 
     United States.''
       As has been noted, the CWC provides inspectors from foreign 
     countries unprecedented access to U.S. facilities--both 
     commercial and government-related. The risk that trade 
     secrets or national security secrets could be stolen during 
     an inspection is very high. In particular, because chemicals 
     covered by the CWC are used in a variety of aerospace 
     activities--from the manufacture of advanced composites and 
     ceramics to additives for paints and fuels--dozens of defense 
     contractors are targeted for routine inspections under the 
     CWC. Thus a threat to proprietary information often also will 
     constitute a threat to national security information.
       Certainly a number of countries intend to use CWC 
     inspections for commercial espionage. Several incidents of 
     concern have already occurred in this respect. For this 
     reason, the Senate adopted a common-sense approach to the 
     standard of evidence required by the President in exercising 
     the right of inspector refusal. A decision to apply a higher 
     evidentiary standard than ``reasonable belief'' would be 
     inconsistent with Section 303.
       Section 304. Procedures for Inspections. Section 304 
     contains a number of critical protections for U.S. companies. 
     First, Section 304 (b)(3)(B) requires that notification of a 
     challenge inspection pursuant to Article IX of the Convention 
     ``shall also include all appropriate evidence of reasons 
     provided by the requesting state party to the Convention for 
     seeking the inspection. The requirement for specific 
     identification of the reasons for a challenge inspection will 
     enable companies to formulate their own views on the extent 
     to which ``probable cause'' exists for such an inspection. As 
     the Committee's analysis of Sections 305 makes clear, the CWC 
     does not require a foreign country to demonstrate ``probable 
     cause'' when it initiates a challenge inspection of a 
     commercial U.S. facility. For this reason, the Congress has 
     adopted implementing legislation which specifically raises 
     the question of the constitutionality of the CWC's challenge 
     inspection regime and provides for expedited review by the 
     courts (under Section 503). Many in the Senate expect the 
     Supreme Court to rule against the constitutionality of the 
     sweeping inspection rights under Article IX of the CWC.
       Section 304(f) allows the U.S. company or person to be 
     inspected to determine who shall take samples during an 
     inspection. It also reiterates the requirement, imposed 
     pursuant to the resolution of ratification of the CWC, that 
     ``[n]o sample collected in the United States may be 
     transferred for analysis to any laboratory outside the 
     territory of the United States.'' This provision mirrors the 
     Presidential certification requirement contained in Condition 
     18 of the resolution of ratification for the CWC.
       The CWC explicitly affords an inspection team the right to 
     take samples on-site and, pursuant to Part II paragraph 
     (E)(55) of the Verification Annex, ``if it deems necessary, 
     to transfer samples for analysis off-site at laboratories 
     designated by the Organization.'' As Part II paragraph 
     (E)(57) makes clear: ``when off-site analysis is to be 
     performed, samples shall be analysed in at least two 
     designated laboratories.''
       In agreeing to both Condition 18 of the CWC's resolution of 
     ratification and Section 304(f) of the implementing 
     legislation, the Executive Branch acknowledged that the 
     United States intends to field two OPCW-designated 
     laboratories. Specifically, the Department of Defense intends 
     to field a mobile laboratory which will be available to 
     analyze samples taken in the United States. While sample 
     residue left in the laboratory's equipment would preclude it 
     from leaving U.S. territory, the lab is intended to serve as 
     a counterpart to a second mobile laboratory operated by the 
     OPCW (which could be deployed to countries unable to secure 
     OPCW approval for a facility).
       There is no treaty-requirement that analysis be done in 
     laboratories operated by countries other than the one where a 
     sample was taken. The United States may legally preclude the 
     transfer of samples overseas while still meeting the CWC 
     requirement that samples-analysis be conducted in two 
     designated laboratories.
       Some have argued that Section 304(f) sets a ``dreadful 
     example'' prompting countries to deny foreign inspectors the 
     ability to send chemical samples abroad for analysis at 
     independent laboratories. Such arguments fail to recognize 
     several key points. First, any country that succeeds in 
     obtaining OPCW accreditation for two laboratories has the 
     treaty-right to insist that samples be analyzed ``in 
     country,'' regardless of U.S. policy.
       Second, opponents of sampling limitations overstate the 
     scientific capacity and technical capability of proliferant 
     countries to secure OPCW approval for two laboratories. To 
     date, the OPCW has not given approval to any lab in any 
     country; certainly no country has secured approval for two. 
     Indeed, only a handful of western European countries, and 
     perhaps Russia and China, have the ability to field two 
     approved laboratories. The former countries pose no 
     proliferation concern, and both Russia and China are capable 
     of completely concealing their chemical warfare program from 
     international inspectors (making sampling irrelevant). Thus 
     the argument that U.S. strictures on sampling transfers 
     will undo the CWC's verification regime are unsupportable.
       Third, those who criticize Section 304(f) overstate the 
     value of sampling analysis to U.S. nonproliferation efforts. 
     On March 1, 1989, then-Director of Central Intelligence, 
     Judge William Webster, pointed out the ease with which 
     chemical weapons production can be concealed: ``. . . within 
     fewer than 24 hours, some say 8\1/2\ hours, it would be 
     relatively easy for the Libyans to make the site [at Rabta] 
     appear to be a pharmaceutical facility. All traces of 
     chemical weapons production could be removed in that amount 
     of time.'' Similarly, delays of just a few hours have 
     undercut UNSCOM's efforts to prove Iraqi chemical and 
     biological concealment activities.
       In contrast, the CWC gives proliferant countries five days 
     of advance warning to conceal their activities before a 
     challenge inspection team must be allowed on-site. Very 
     simple techniques, such as the production of pesticides on a 
     line used to manufacture nerve agent (e.g. production of the 
     pesticide methyl-parathion instead of the nerve agent sarin), 
     will reduce or eliminate the utility of sampling analysis.
       Fourth, the over-focus on analysis to be done by 
     ``independent'' laboratories ignores UNSCOM's experience with 
     Iraq's VX program. In the case of samples taken from warheads 
     believed to be weaponized with VX, ``independent'' 
     laboratories in France, Switzerland, and the United States 
     have given contradictory and inconsistent analyses. This has 
     only complicated U.S. efforts to prove to the international 
     community that Saddam Hussein's nerve agent program is far 
     more advanced than admitted by Iraq. This has occurred 
     despite UNSCOM's relatively unfettered ability--at least in 
     comparison with the CWC--to take samples when and where it 
     pleases. Because the CWC's timeframes provide cheating 
     nations with ample opportunity to mask chemical warfare 
     signatures, analysis of samples at foreign laboratories is 
     guaranteed to make U.S. efforts to prove noncompliance 
     harder, not easier. This

[[Page S12747]]

     will be the case regardless of whether sampling analysis is 
     done ``in-country.''
       Fifth, in addition to overselling the value of sampling 
     analysis to the CWC's verification regime, opponents of 
     Section 304(f) persist in ignoring the threat that such 
     procedures pose to legitimate commercial activities. A loss 
     of proprietary information through sample analysis would 
     bankrupt many chemical, pharmaceutical, and biotechnology 
     industries. Moreover, chemical formulas, which are the type 
     of proprietary information put at greatest risk by sampling, 
     often are not patented. This is done to preserve competitive 
     advantage and to prevent disclosure pursuant to Freedom of 
     Information Act (FOIA) requests. But the lack of a patent 
     also will make it harder for U.S. companies to prove that a 
     trade secret has been stolen.
       The Congressional Office of Technology Assessment estimated 
     in August, 1993, that the U.S. chemical industry loses 
     approximately $3-6 billion per year in counterfeited 
     chemicals and chemical products. A U.S. pharmaceutical firm 
     spends on average about $350 million to research and develop 
     a new compound. Clearly, while it is difficult to assess the 
     potential dollar losses associated with the CWC, information 
     gleaned from sampling analysis could be worth millions of 
     dollars to foreign competitors. Equally troubling is the fact 
     that the CWC does not require the return of samples to the 
     country from which they were taken, but instead gives the 
     Technical Secretariat of the OPCW responsibility over final 
     disposition. This further increases the possibility that 
     proprietary information contained in the sample will be 
     compromised.
       As Kathleen Bailey, then-Senior Fellow at Lawrence 
     Livermore Laboratories, warned in testimony before the 
     Foreign Relations Committee: ``Experts in my laboratory 
     recently conducted experiments to determine whether or not 
     there would be a remainder inside of the equipment that is 
     used for sample analysis on-site. They found out that, 
     indeed, there is residue remaining. And if the equipment were 
     taken off-site, off of the Lawrence Livermore Laboratory 
     site, or off of the site of a biotechnology firm, for 
     example, and further analysis were done on those residues, 
     you would be able to get classified and/or proprietary 
     information.''
       Numerous other distinguished witnesses expressed concern 
     regarding the threat to trade secrets posed by the CWC's 
     intrusiveness, including Donald Rumsfeld, former Secretary of 
     Defense and President and former Chairman and CEO of G.D. 
     Searle and Company; James Schlesinger, former Secretary of 
     Defense and former Director of Central Intelligence; 
     Lieutenant General William Odom, former Director of the 
     National Security Agency; Lieutenant General James Williams, 
     former Director of the Defense Intelligence Agency; Edward J. 
     O'Malley, former Assistant Director of Federal Bureau of 
     Investigation, Chief of Counterintelligence; and Bruce 
     Merrifield, former Assistant Secretary of Commerce for 
     Technology. It was on the basis of the testimony of these 
     individuals, and the concerns expressed by numerous companies 
     and industries (ranging from members of the Chemical 
     Manufacturers Association and the Aerospace Industries 
     Association to other types of companies such as the one that 
     manufactures special ink for the dollar bill) that the 
     Congress chose to prohibit the transfer of samples overseas 
     for analysis.
       Section 305. Warrants. Section 305 builds upon Condition 28 
     of the resolution of ratification for the CWC, which required 
     the President to certify to Congress that, for any challenge 
     inspection where consent has been withheld, the United States 
     ``will first obtain a criminal search warrant based upon 
     probable cause, supported by oath or affirmation, and 
     describing with particularity the place to be searched and 
     the persons or things to be seized. . . .'' Further, the 
     President certified pursuant to Condition 28 that an 
     administrative search warrant issued by a United States 
     magistrate judge would be required for involuntary routine 
     inspections.
       Accordingly, Section 305 requires Administrative search 
     warrants for routine inspections where consent has been 
     withheld. It limits routine inspections to no more than one 
     per year per plant site. Additionally, for Schedule 3 
     facilities and sites working with discrete organic chemicals, 
     Section 305 requires the federal government to affirm in 
     an affadavit, prior to obtaining an administrative search 
     warrant, that a given routine inspection: (1) ``will not 
     cause the number of routine inspections in the United 
     States to exceed 20 in a calendar year;'' and (2) the 
     facility to be inspected was selected randomly by the 
     Technical Secretariat, taking into account equitable 
     geographic distribution of inspections and other relevant 
     information relating to the site in question. Finally, 
     Section 305 requires that the federal government stipulate 
     in its affadavit that the routine inspection will not 
     exceed the time limits specified in the Convention unless 
     the owner, operator, or agent in charge of the plant 
     agrees.
       Section 305 requires criminal search warrants for any 
     challenge inspection where consent has been withheld. In 
     seeking the warrant, the federal government is required to 
     provide to the judge of the United States all appropriate 
     evidence or reasons showing probable cause to believe that a 
     violation of the implementing legislation (and thus the 
     treaty) is occurring.
       In the event that a frivolous challenge inspection is 
     initiated against the United States, perhaps in retribution 
     for a U.S.-initiated inspection, the federal government may 
     prove unable to provide sufficient probable cause to obtain a 
     criminal search warrant. Under the CWC, a country wishing to 
     initiate a challenge inspection is not required to provide 
     any supporting evidence. The request for an inspection simply 
     is made; unless 31 of 41 members of the Executive Council of 
     the OPCW vote against it proceeding within 12 hours of such a 
     request, the challenge inspection will move forward. Thus the 
     ``screen'' against frivolous or abusive inspections is of a 
     political, rather than evidentiary, nature. Moreover, review 
     under the CWC of whether the challenge inspection request was 
     within the scope of the CWC, or whether the right to request 
     a challenge inspection had been abused, is allowed only 
     retroactively (following conclusion of the inspection). 
     Therefore nothing in the Convention prevents a challenge 
     inspection from being initiated against a U.S. company 
     without ``probable cause'' having been demonstrated.
       As will be discussed in connection with Section 503, the 
     courts will ultimately serve as the final arbiter over 
     questions of the CWC's constitutionality.
       Section 307. National Security Exception. Section 307 
     allows the President to deny any inspection request that 
     ``may pose a threat to the national security interests of the 
     United States.'' This simple provision is designed to protect 
     the United States from frivolous inspections.
       A recent Stimson Center report makes the claim that ``[t]he 
     national security exception negates the treaty obligation to 
     accept a challenge inspection at any U.S. location.'' This 
     statement incorrectly asserts that the United States has such 
     an obligation. Condition 28 of the resolution of ratification 
     clearly established that the United States will not agree to 
     a broad treaty obligation to accept a challenge inspection at 
     any U.S. location. Rather, the United States will agree to 
     inspections under Article IX of the CWC only in those cases 
     where either consent to an inspection has been given, or 
     probable cause has been demonstrated and a criminal search 
     warrant obtained. Under any other circumstances, no access 
     will be given.
       Thus the argument made against Section 307 is flawed on its 
     face. Moreover, the CWC explicitly gives the United States 
     the right, for instance, under paragraph 41 of Part X of the 
     Verification Annex, to ``take such measures as are necessary 
     to protect national security.'' Indeed, as paragraph 38 makes 
     clear, access to sensitive facilities must be negotiated 
     between the inspection team and the inspected State Party; 
     moreover, the inspection team is obligated to use of the 
     least intrusive procedures possible. Under paragraph 42, 
     should the United States provide ``less than full access to 
     places, activities, or information'' the United States incurs 
     the obligation to ``make every reasonable effort to provide 
     alternative means to clarify the possible non-compliance 
     concern that generated the challenge inspection.''
       Section 307 clarifies the fact that the President has the 
     right, both under the Constitution and pursuant to the 
     treaty, to deny a potentially-damaging inspection. However, 
     the exercise of such a denial must be made ``consistent with 
     the objective of eliminating chemical weapons.'' Thus the 
     President is obligated to provide alternative means of 
     clarifying non-compliance concerns, and must consider the 
     implications of a denial for the operation of the CWC, and 
     for U.S. nonproliferation efforts. The national security 
     interests of the United States, however, must remain 
     paramount.
       Section 402. Prohibition Relating to Low Concentrations of 
     Schedule 2 and Schedule 3 Chemicals. The CWC does not define 
     the term ``low concentration'' as it relates to Schedule 2 
     and Schedule 3 chemicals. Section 402 establishes the intent 
     of the United States to interpret this term to mean a 10 
     percent concentration of a Schedule 2 chemical and an 80 
     percent concentration of a Schedule 3 chemical (measured 
     either by volume or total weight, whichever yields the lesser 
     percent). In setting the percentages at these levels, Section 
     402 ensures that Schedule 2 chemicals, which are of direct 
     concern for chemical weapons production, are captured in low 
     concentrations. It also recognizes the broad range of 
     commercial uses for Schedule 3 chemicals, and reduces the 
     regulatory impact of the CWC on many industries.
       No chemical is placed on Schedule 2 of the CWC unless it 
     meets specific criteria: (1) it must be lethal enough that it 
     could be used as a chemical weapon by itself; (2) it can 
     serve as a precursor in the final stage of the manufacture of 
     a chemical weapon, or otherwise is important to the 
     production of a chemical weapon; and (3) is not produced ``in 
     large commercial quantities.'' Obviously, such chemicals 
     should be tightly controlled even at relatively dilute 
     levels.
       Schedule 3, on the other hand, contains seventeen chemicals 
     which are produced in large commercial quantities for use in 
     production of various organic chemicals and agricultural 
     products. Additionally, these chemicals are used to make 
     gasoline additives, pharmaceuticals, detergents, flame 
     retardant materials, and dyestuffs, among other things. There 
     are 17 compounds on Schedule 3.
       Schedule 3A (4), Chloropicrin, has important uses for the 
     disinfection of cereals and grains, considerably increasing 
     the potential storage life. It is also used as a soil 
     insecticide to sterilize the soil before the planting of 
     crops that are very sensitive to weed competition.

[[Page S12748]]

       Schedule 3B (5), Phosphorous oxychloride, is used as an 
     insecticide, as a chlorinating agent, flame retardant, 
     gasoline additive, hydraulic fluid, organic synthesis, 
     plasticizer, and as dopant for semiconductors.
       Phosphorous trichloride, Schedule 3B (6), is used in 
     dyestuffs, surfactants, plasticizers, gasoline additives, 
     insecticides, and in organic synthesis.
       Phosphorous pentachloride, Schedule 3B (7), is used as a 
     pesticide, in plastics, and in organic synthesis.
       Trimethyl phosphite, Schedule 3B (8), is used in 
     insecticides, organic synthesis, veterinary drugs.
       Triethyl phosphite, Schedule 3B (9), is used in insecticide 
     synthesis, as a lubricant additive, in organic synthesis, and 
     as a plasticizer.
       Schedule 3B (10), Dimethyl phosphite, is used in 
     insecticide production, as a lubricant additive, in organic 
     synthesis, and as a veterinary drug.
       Diethyl phosphite (Schedule 3B (11)) is used in the 
     production of insecticides, as a gasoline additive, as a 
     paint solvent, in the synthesis of pharmaceuticals, and in 
     organic synthesis.
       Sulfur monochloride (Schedule 3B (12)) is used extensively 
     as an intermediate and chlorinating agent in the production 
     of dyes and insecticides. It is also used for cold 
     vulcanisation of rubber, in the treatment of vegetable oils 
     and for hardening soft woods, in pharmaceuticals, organic 
     synthesis, as a polymerization catalyst, and in the 
     extraction of gold from ores.
       Thionyl Chloride, Schedule 3B (14), is used in batteries, 
     engineering plastics, pesticides, as a catalyst, surfactant, 
     chlorinating agent, and in organic synthesis of herbicides, 
     drugs, vitamins, and dyestuffs. Common agricultural products 
     involving this chemical are: Fenvalerate, Endosulfan, 
     Methidathion, Flucythrinate, Fluvalinate, Lethane, 
     Diphenamit, Napromaide, Propamide, Tridiphane, Topan, and 
     Pipertain.
       Schedule 3B (17), Triethanolamine, is another chemical with 
     a widespread use. Because of its surface active properties it 
     is added to waxes and polishes and is used as a solvent for 
     herbicides, shellac and various dyes. It is also used for 
     producing emulsions of various oils, paraffins and waxes, as 
     well as for breaking up emulsion. It is an important 
     ingredient of the cutting oil used for metal shaping. Further 
     uses include in detergents, cosmetics, corrosion inhibitors, 
     as a plasticizer, rubber accelerator, and in organic 
     synthesis.
       As can be seen from this partial listing, the majority of 
     these chemicals are used in agriculture, the automobile 
     industry, and pharmaceuticals production. The vast majority 
     are used as herbicides or insecticides/pesticides. A decision 
     to lower the percentage associated with ``low 
     concentrations'' of Schedule 3 chemicals would dramatically 
     increase the number of agricultural companies and facilities 
     subject to the CWC's onerous reporting and inspection 
     requirements. The costs resulting from such a dramatic 
     expansion of the CWC's scope would invariably be passed by 
     such companies to the one consumer who can least afford an 
     increase in operating costs at this time--the U.S. farmer.
       Section 403. Prohibition Relating to Unscheduled Discrete 
     Organic Chemicals and Coincidental Byproducts in Waste 
     Streams. Section 403 exempts from reporting and inspection 
     any ``unscheduled discrete organic chemical'' that is a 
     ``coincidental byproduct . . . that is not isolated or 
     captured for use or sale . . . and is routed to, or escapes, 
     from the waste stream of a stack, incinerator, or wastewater 
     treatment system or any other waste stream.''
       The CWC does not list unscheduled discrete organic 
     chemicals. Instead, it generally defines these substances as: 
     ``any chemical belonging to the class of chemical compounds 
     consisting of all compounds of carbon except for its oxides, 
     sulfides and metal carbonates, identifiable by chemical name, 
     by structural formula, if known, and by Chemical Abstracts 
     Service registry number if assigned.'' This definition 
     captures thousands of chemical compounds--so many that it is 
     impossible to list them. The CWC's sweeping definition of a 
     ``discrete organic chemical'' captures thousands of U.S. 
     companies under its reporting and inspection obligations.
       However, that number would expand exponentially without 
     Section 403's exclusion of discrete organic chemicals which 
     form as a byproduct in a variety of manufacturing processes. 
     The declaration and inspections costs under the CWC would 
     fall on a far broader number of U.S. companies. Moreover, the 
     costs of compliance for these additional companies will be 
     far greater. Companies must declare the aggregate tonnage of 
     discrete organic chemicals produced. If ``production'' is 
     defined as the formation of coincidental byproducts in a 
     waste stream, however, many companies would find it costly, 
     and perhaps impossible, to comply with the treaty.
       The paper industry, in particular, has expressed concern 
     over the ``discrete organic chemical category,'' warning that 
     various chemicals such as methanol, phenol, methyl ethyl 
     ketone, and methyl mercaptan are formed in the process of 
     paper manufacturing. The American Forest and Paper 
     Association warned on May 25, 1994, that ``pulp digester 
     gases containing methanol are vented, and some methanol will 
     also be lost as fugitive air emissions from the wastewater 
     treatment system. Methanol is only one component of these 
     streams; it is not isolated or captured for use or sale.''
       Without Section 403, numerous industries are at risk of 
     being required to measure and report on countless chemical 
     interactions in waste streams, and to undergo international 
     inspection to verify the accuracy of their data. On May 21, 
     1997, the American Forest and Paper Association reiterated 
     its concern over the broad scope of the CWC and stated its 
     support for Section 403: ``We strongly support the 
     prohibition of requirements under the treaty for chemical 
     byproducts that are coincidently manufactured. Due to the 
     broad nature of the category of `discrete organic chemicals,' 
     as defined by the treaty, it is critical to recognize that 
     inclusion of coincidental byproducts of manufacturing 
     processes that are not captured or isolated for use or sale 
     would exceed the stated purpose of the CWC.''
       Section 503. Expedited Judicial Review. Section 503 allows 
     for U.S. citizens to challenge the constitutionality of any 
     provision of the implementing legislation (and, therefore, 
     the CWC). Such a challenge must be given priority in its 
     disposition, and a prompt hearing by a full Court of Appeals 
     sitting en banc must be given to a final order entered by a 
     district court.
       In reviewing the constitutionality of legislation, the 
     courts often assume that Congress has exercised its 
     independent judgment and that the legislation in question is 
     constitutional. However, as the legislative history of the 
     CWC makes clear, Congress expressed numerous misgivings about 
     the constitutionality of the CWC (and thus about the 
     implementing legislation required). These concerns were 
     articulated in hearings before the Committees on Foreign 
     Relations and Judiciary, and in correspondence between the 
     Senate, Executive Branch, and U.S. businesses. As has been 
     noted elsewhere, the Senate expressed some specific concerns 
     over the constitutionality of the CWC as conditions in the 
     resolution of ratification. The resolution also included 
     Condition 12, which makes clear that nothing in the CWC 
     authorizes or requires legislation, or any other action 
     prohibited by the Constitution of the United States, as 
     interpreted by the United States.
       Many in the Congress are convinced that the Chemical 
     Weapons Convention is incompatible with the Fourth and Fifth 
     Amendment rights of Americans. It therefore is expected that 
     the courts will hold that some, or all, of the CWC and its 
     implementing legislation is unconstitutional and issue the 
     appropriate injunctions. 


         American Competitiveness and Workforce Improvement Act

  Mr. ABRAHAM. Mr. President, as part of the omnibus appropriations 
bill the Senate today will pass the ``American Competitiveness and 
Workforce Improvement Act.'' This legislation represents a bipartisan 
compromise resulting from tough negotiations between the House and the 
Senate, and between Congress and the White House. The bill will be 
included in this form rather than being adopted freestanding because of 
a last minute objection from Senator Harkin that has prevented it from 
being brought to the floor on its own. Given the 78 to 20 vote for the 
American Competitiveness Act prior to the agreement with the White 
House, and the 288 to 133 vote in the bill's favor just a few weeks ago 
in the House of Representatives, it is clear the legislation would have 
passed with overwhelming support in the Senate had it been permitted to 
come to a separate vote.
  I believe that the passage of the American Competitiveness and 
Workforce Improvement Act today is a great victory for American workers 
and for the businesses that employ them.
  This legislation will protect the competitiveness of American 
business in the global marketplace and improve economic and career 
opportunities for American citizens.
  Let me start by describing the history of this legislation. This past 
February, the Senate Judiciary Committee held a hearing at my request 
to examine high technology labor market needs. We heard from leaders at 
America's top high technology firms that they simply could not find 
enough qualified professionals to fill the jobs they needed filled. 
They also emphasized that many of the individuals they hired on H-1B 
temporary visas not only filled important jobs, but also typically 
created jobs for many Americans through their skills and innovations.
  At that time, the 65,000 cap on H-1B visas was projected to be 
reached as early as June. Instead, it was reached the first week of 
May.
  In March, I introduced S. 1723, the American Competitiveness Act, to 
increase the cap on H-1B visas for foreign born professionals. In 
April, that bill passed the Senate Judiciary Committee on a 12 to 6 
bipartisan vote. Then in May, the bill passed on a 78 to 20 vote of the 
full Senate.
  Some time after that, the House Judiciary Committee passed out an H-
1B

[[Page S12749]]

visa bill as well. However, many who supported the increase in 
principle found that the House version included so many conditions on 
the use of H-1B visas that they would have more than negated the 
benefits of raising the cap. Negotiations ensued between the House and 
Senate over these provisions, brokered by the leadership of both 
chambers. The hope was to find a compromise.
  In the end, a compromise was reached that retained the core features 
of the Senate bill but also found common ground with the House by 
focusing increased attention and requirements on employers, more than 
15% of whose workforce are in this country on H-1B visas. The 
compromise also imposed a fee to be paid by the employer on each visa, 
the proceeds of which would be used for job training and scholarships.
  On account of this last provision, the compromise bill was required 
to originate in the House. Accordingly, it was incorporated into a 
proposed amendment, whose text was worked out by me and by House 
Immigration Subcommittee Chairman Smith--a proposed amendment which 
Chairman Smith was going to offer as a substitute to H.R. 3736, the 
bill that had passed out of House Judiciary.
  As the House was preparing to take that bill up before the August 
recess, however, the White House issued a public veto threat and listed 
15 changes it was seeking to the bill. At that point, I was deputized 
to attempt to negotiate the remaining issues with the Administration, 
in consultation with Chairman Smith and the House and Senate 
leadership.
  After several weeks of negotiations, we reached agreement at 7:00 
p.m. on September 23. We and the Administration were able to reach an 
accommodation on most of the points it had raised. The Administration 
withdrew the remaining two points, points 6 and 7, that in our view 
could not be accommodated within the existing structure of the bill and 
the H-1B program. We instead agreed on a different approach with regard 
to the concerns underlying these two points, one that focused instead 
on clarifying current program requirements and toughening sanctions for 
willful violations of these requirements.
  Because the bill was scheduled to be taken up on the House floor the 
following day, the results of the agreement had to be quickly 
incorporated into a new substitute amendment to H.R. 3736. The 
substitute had to be filed by Chairman Smith that evening before the 
House went out at 8:30 p.m. so that it could be printed in the 
Congressional Record and be made available for Members to review the 
following morning. We met this deadline, the amendment was filed, and 
on September 24 the amendment was adopted and the bill passed by the 
House with the support of a majority of both the Republican and 
Democratic caucuses. That bill, with some technical corrections 
necessitated by a few omissions that resulted from the tight deadline 
under which the original version was produced, is now incorporated into 
Title IV of Division C of the Omnibus Appropriations Bill, titled The 
American Competitiveness and Workforce Improvement Act.
  Let me now turn to the reasons why I believe this bill remains needed 
and indeed timely. Mr. President, throughout this session of Congress I 
have come to the floor repeatedly to urge that we address the growing 
shortage of skilled workers for certain positions in our high 
technology sector. I have done this because I believe that the 
continued competitiveness of our high-tech sector is crucial for our 
economic well being as a nation, and for increased economic opportunity 
for American workers.
  The importance of high-tech for our economy is beyond doubt. The 
importance of high-tech for our economy is beyond doubt. According to 
the Department of Commerce's Bureau of Economic Analysis, high 
technology companies contributed over one-quarter of America's real 
economic growth between 1992 and 1997. Moreover, the declining prices 
of computers, software, and semiconductors have made a substantial 
contribution to our nation's low level of inflation, thereby improving 
the standard of living enjoyed by millions of Americans. Without IT 
industries to keep prices down, according to the Bureau of Economic 
Analysis, the inflation rate would have been much higher in 1997--3.1 
percent versus the actual level of only 2.0.
  But high technology firms are experiencing serious worker shortages. 
A study conducted by Virginia Tech estimates that right now we have 
more than 340,000 unfilled positions for highly skilled information 
technology workers. And, while Department of Labor figures project our 
economy will produce more than 1.3 million information technology jobs 
over the next 10 years, estimates are that our universities will not 
produce nearly that number of graduates in related fields. And this is 
not only what academic studies are telling us. Firms across the nation 
and across my home State of Michigan have been clamoring for people to 
fill these skilled positions.
  Of course, this issue is not only about shortages, it is about 
opportunities for innovation and expansion, since people with valuable 
skills, whatever their national origin, will always benefit our nation 
by creating more jobs for everyone.
  Mr. President, we want and need American companies to keep and expand 
major operations in this country. We do not want to see American jobs 
go overseas. But, if they are to keep their major operations in the 
United States, firms must find workers here who have the skills needed 
to fill important positions in their companies.
  To make that happen in the long term, we must do more as a nation to 
encourage our young people to choose high technology fields for study 
and for their careers. In the long run this is the only way we can stay 
competitive and protect American jobs.
  Through scholarships and job training, the American Competitiveness 
and Workforce Improvement Act will help us achieve this goal. It will 
provide money and training to low income students who choose to study 
subjects, including math, computer science and engineering, that are 
important to our high-tech economy. In this way the American 
Competitiveness and Workforce Improvement Act will help bridge the gap 
between current job skills and the requirements of high paying, 
important positions in our economy.
  However, over the short term, until we are producing more qualified 
high technology graduates, we must also take other steps to bridge the 
gap between high technology needs and high technology skills.
  We currently allow companies to hire a limited number of highly 
skilled foreign born professionals to fill essential roles. To do this 
they must go through a fairly onerous process to get one of the 65,000 
``H-1B'' temporary worker visas allotted by the INS. Unfortunately, 
last year our companies hit the 65,000 annual limit at the end of 
August. This year that limit was hit in May.
  This bill, in addition to providing significant incentives for 
Americans to enter the high technology sector, will temporarily raise 
the number of H-1B visas available for the next three years. These 
additional visas will enable companies to find the workers they need to 
keep facilities and jobs in the United States, and keep our high-tech 
industry competitive in the global marketplace.
  The legislation also includes a number of provisions ensuring that 
companies will not replace American workers with foreign born 
professionals, including increased penalties and oversight, as well as 
measures eliminating any economic incentive to hire a foreign born 
worker if there is an American available with the skills needed to fill 
the position.
  I would like to thank the members of my staff who worked long hours 
negotiating this compromise. I would also especially like to express my 
personal gratitude to my colleagues for their support for this 
important legislation. I would like to thank in particular Majority 
Leader Lott, Senator Hatch, Senator McCain, Senator Gramm, Senator 
Gorton, Senator Lieberman, and Senator Graham, as well as the many 
cosponsors of the bill, for their crucial support at key moments in 
this process. I am also grateful to Senator Kohl and Senator Feinstein 
for their support for this legislation in Committee. Finally, I would 
like to thank the Subcommittee's Ranking Member, Senator Kennedy, for 
the cooperation he showed in moving forward this piece of legislation 
despite disagreement with some aspects of the bill's content.

[[Page S12750]]

  In the House, I would like to extend special thanks to Speaker 
Gingrich, Majority Leader Armey, and Chairman Smith for helping to 
reach a compromise that has achieved a true consensus on this issue. 
Representatives David Dreier, Jim Rogan and David McIntosh also 
provided leadership and help at significant junctures in this process 
and I am also grateful for their important efforts.
  Because much of this legislation was developed after the conclusion 
of the regular Committee process, I have also prepared an explanatory 
document that performs the function commonly performed by the Committee 
Report of describing the legislation and the purpose and 
interrelationship of its various provisions in detail. I ask unanimous 
consent that this document be printed in the Record, along with a few 
pages of other materials to which the document makes reference.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   The American Competitiveness and Workforce Improvement Act of 1998


Section 401. Short Title; Table of Contents; Amendments to Immigration 
                          and Nationality Act

       This section specifies the short title, the ``American 
     Competitiveness and Workforce Improvement Act of 1998,'' the 
     table of contents for the legislation, and the rule that 
     unless otherwise specified, the legislation amends the 
     Immigration and Nationality Act.
     Subtitle A
       Subtitle A contains the changes the legislation is making 
     to current law regarding H-1B visas.


    Section 411. Temporary Increase in Access to Temporary Skilled 
                      Personnel Under H-1B Program

       This section specifies the new ceilings for these visas: 
     115,000 in FY 1999 and 2000, 107,500 in FY 2001, and 65,000 
     thereafter.


 Section 412. Protection Against Displacement of United States Workers 
                  in Case of H-1B Dependent Employers

       This section adds new statements that must be included on 
     certain H-1B applications and other provisions relating to 
     these new statements and related aspects of the H-1B program.
       Subsection 412(a) amends section 212(n)(1) of the 
     Immigration and Nationality Act to add three new statements 
     and provisions relating to these statements that must be 
     included on applications for H-1B visas filed by certain 
     employers on behalf of certain H-1B nonimmigrants. Subsection 
     412(b) contains various definitions relating to the new 
     statement requirements. Given the close nexus between these 
     two subsections, they are discussed here together, so as to 
     allow the discussion of the substantive provisions to be 
     illuminated by the discussion of the definitions.
       1. The ``non-displacement'' attestation. Subsection (a)(1) 
     first adds a new ``non-displacement'' attestation by amending 
     section 212(n)(1) of the Immigration and Nationality Act to 
     add a new subparagraph (E)(i). This provision requires a 
     covered employer to state that its hiring of the H-1B worker 
     is not displacing a U.S. worker. The term ``displace'' is 
     defined in new subparagraph (4)(B) of section 212(n), added 
     by section 412(b) of this legislation. That paragraph states 
     that an employer ``displaces'' a U.S. worker to hire the H-1B 
     if it lays off a U.S. worker with substantially the same 
     qualifications and experience who was doing essentially the 
     same job the H-1B worker is being brought in to do. This is a 
     slight change from a similar definition used in a related 
     context in an earlier version of this legislation passed by 
     the Senate, which imposed heightened penalties for a willful 
     violation of the prevailing wage attestation where the 
     employer had ``replace[d]'' the U.S. worker with an H-1B 
     nonimmigrant. In that context S. 1723 defined ``replace'' as 
     employment of the H-1B nonimmigrant ``at the specific place 
     of employment and in the specific employment opportunity from 
     which a United States worker with substantially equivalent 
     qualifications and experience in the specific employment 
     opportunity has been laid off.''
       The current definition defines ``displace'' as employment 
     of the nonimmigrant in a job ``that is essentially the 
     equivalent of the job'' from which the U.S. worker has been 
     laid off. The reason for the change from the original Senate 
     language is that it was thought desirable to include within 
     the scope of this prohibition situations where an employer 
     sought to evade this prohibition by laying off a U.S. worker, 
     making a trivial change in the job responsibilities, and then 
     hiring the H-1B worker for a ``different'' job. This language 
     is designed to be broad enough to cover those situations as 
     well. For similar reasons, especially given the nature of the 
     jobs in question, the geographical reach of the prohibition 
     was extended so as potentially to cover other worksites 
     within normal commuting distance of the worksite where the H-
     1B is employed. This was to cover the eventuality that an 
     employer might try to evade this prohibition by laying off a 
     U.S. worker, hiring an H-1B worker to do that person's job, 
     but assigning the H-1B worker to a different worksite very 
     close by in order to conceal what was going on.
       At the same time, however, the final version of this 
     language is significantly narrower than the original language 
     proposed by the House, which sought to prohibit not only one-
     to-one replacements of laid off U.S. workers with H-1Bs, but 
     the hiring of any H-1B with similar qualifications to those 
     of any recently laid off U.S. worker. As a result, the 
     original definition of ``displace'' in the House did not 
     contain the key phrase ``from a job that is essentially the 
     equivalent of the job for which the [H-1B worker] is being 
     sought.'' That phrase was added to make clear that this 
     provision is not intended to be a generalized prohibition on 
     layoffs by covered employers seeking to bring in covered H-
     1Bs, but rather a prohibition on a covered employer's 
     replacing a particular laid-off U.S. worker with a particular 
     covered H-1B.
       It should be noted that the language used here is 
     deliberately different from that used in H.R. 2759, another 
     piece of legislation that we may pass today. That legislation 
     authorizes aliens to come in on temporary visas as nurses 
     under certain circumstances. In order to bring an alien in on 
     such a visa, a facility must attest that it has not laid off 
     another registered nurse within the ninety days preceding or 
     following the filing of the visa petition. That language was 
     chosen there instead of the language used here because in 
     that instance the sponsors of that legislation were 
     interested in doing more than preventing the replacement of a 
     particular U.S. nurse with a nurse holding such a visa. 
     Rather in that instance the desire was to prevent the use of 
     the visas by a facility that had laid off any registered 
     nurses within the relevant time period. Hence the sponsors 
     deliberately rejected the language used here forbidding 
     only one-for-one displacement in favor of broader 
     language.
       The language in the final version of this bill does allow 
     the Department of Labor to pursue instances where an employer 
     has in fact laid off a U.S. worker and hired an H-1B worker 
     to do the U.S. worker's job, but is attempting to conceal 
     that fact with a slight change in job responsibilities or by 
     placing the H-1B worker at a different worksite. It is not, 
     however, intended to go beyond that. Hence, it does not 
     empower the Department of Labor to find a violation of this 
     clause unless an H-1B worker is being brought in to replace a 
     particular laid-off U.S. worker and do that particular U.S. 
     worker's job. It should also be noted that under new 
     paragraph (E)(i), in order to qualify, the displacement has 
     to have occurred within 90 days before or after filing the H-
     1B petition. This was viewed as the outer limit for how long 
     an employer might leave open a job previously held by a U.S. 
     worker whom the employer intended to replace with an H-1B 
     worker, or how long the employer might retain the U.S. worker 
     while also hiring the H-1B worker. In most instances, to 
     constitute a genuine instance of replacement, the layoff and 
     hiring would be expected to occur closer in time.
       Finally, the definition of ``lays off'' set out in new 
     subparagraph (3)(D) of 212(n) (added by section 412(b) of 
     this legislation) hews closely to the language contained in 
     the original Senate version of this legislation, with two 
     minor changes. First, while continuing to exclude the 
     expiration of a temporary employment contract from the 
     definition, the final version clarifies that the expiration 
     of such a contract will be treated as a layoff if an employer 
     enters into such a contract with the specific intent of 
     evading the anti-displacement attestations contained in new 
     paragraphs (E) and (F) of subsection 212(n)(1). Second, the 
     final version notes that its definition of layoff is not 
     intended to supersede the rights employees may have under 
     collective bargaining agreements or other employment 
     contracts. By the same token, of course, the fact that an 
     employee may have protection under a collective bargaining 
     agreement or other employment contract against some of the 
     grounds for termination listed as exceptions to the 
     definition of ``lays off'' in this legislation has no 
     consequence for purposes of determining whether an employer 
     has violated the displacement attestation. Rather, the 
     employee's remedies for breach of the agreement or contract 
     remain as they were under the agreement, contract, and pre-
     existing law, and are neither expanded nor contracted by 
     212(n)(3)(D). In other words, whether a layoff does or does 
     not violate such an agreement has no bearing on whether it is 
     within or outside the definition set out in 212(n)(3)(D) (and 
     hence has no bearing on whether it is actionable by the 
     Secretary of Labor under her authorities to enforce the ``no 
     displacement'' attestation). Conversely, the fact that a 
     layoff is outside the definition set out in 212(n)(3)(D) has 
     no bearing on whether it violates a collective bargaining 
     agreement or other employment contract and hence on whether 
     it is actionable by the employee using the remedies available 
     under other laws for such violations.
       In determining whether or not a U.S. worker has been 
     offered a ``similar employment opportunity'' as an 
     alternative to loss of employment, and hence has not been 
     laid off, it is the intent of Congress that the determination 
     of similarity take into account factors such as level of 
     authority and responsibility to the previous job, level 
     within the overall organization, and other similar factors, 
     but that it not include the location of the job opportunity.
       If an employer asserts that it should not be held liable 
     for a violation of the displacement attestation because a 
     U.S. worker lost

[[Page S12751]]

     his or her employment as the basis for an employee's loss of 
     employment one of the listed exceptions, it is Congress's 
     expectation that if the Secretary disputes that, she would 
     have the burden of disproving the employer's assertion.
       2. The ``secondary non-displacement'' attestation. Section 
     412(a) next adds a ``secondary non-displacement'' attestation 
     by amending section 212(n)(1) of the Immigration and 
     Nationality Act to include a new subparagraph (F). This 
     attestation requires a covered employer to pledge to make 
     certain inquiries before placing a covered H-1B worker with 
     any other employer where the H-1B worker would essentially be 
     functioning as an employee of the other employer. The 
     requirement that there be ``indicia of employment'' between 
     the employer with whom the covered employer is placing the 
     covered H-1B worker and the H-1B worker is intended to 
     operate similarly to the provisions in the Internal Revenue 
     Code in determining whether or not an individual is an 
     employee.
       In particular, the covered employer must promise to inquire 
     whether the other employer will be using the H-1B worker to 
     displace a U.S. worker whom the other employer had laid off 
     or intends to lay off within 90 days of the placement of the 
     H-1B worker. The covered employer must also state that it has 
     no knowledge that the other employer has done so or intends 
     to do so.
       Making the required inquiries will not insulate a covered 
     employer from liability should the secondary employer with 
     which the covered employer is placing the covered H-1B worker 
     turn out to have displaced a U.S. worker from the job that it 
     has contracted with the covered employer to have the H-1B 
     worker fill. That is why subsection 412(a)(2) of this 
     legislation adds a new requirement to section 212(n)(1) that 
     the application contain a clear statement regarding the scope 
     of a covered employer's liability with respect to a layoff by 
     a secondary employer with whom the covered employer places a 
     covered H-1B worker. If the covered employer does make the 
     required inquiries and obtains no information that would lead 
     it to believe that the secondary employer has used the H-1B 
     worker to displace a U.S. worker, however, that should weigh 
     heavily in favor of the covered employer's not having 
     knowledge or reason to know of the secondary employer's 
     actions for purposes of the penalty provisions associated 
     with this attestation specified in new subparagraph (E) of 
     section 212(n)(2) (added by section 413(c)).
       This provision uses the same definitions of ``displace,'' 
     ``lays off,'' and other definitions as those used by the 
     primary non-displacement attestation.
       3. The ``recruitment'' attestation. The last new required 
     statement added by section 412(a) is the ``recruitment'' 
     attestation, to be set out in new subparagraph (G) of section 
     212(n)(1). It requires a covered employer to state that it 
     has taken good faith steps to recruit U.S. workers for the 
     job for which it is seeking the H-1B worker, and has offered 
     the job to any equally or better qualified U.S. worker.
       This provision allows employers to use normal recruiting 
     practices standard to similar employers in their industry in 
     the United States; it is not meant to require employers to 
     comply with any specific recruiting regimen or practice or to 
     confer any authority on DOL to establish such regimens by 
     regulation or guideline. Further, it is the intent of 
     Congress that this provision not require an employer to set 
     aside its normal standards for selection and recruitment of 
     employees, including, but not limited to, legitimate 
     objective criteria and legitimate subjective criteria such as 
     past job performance, attitude, personal presentation or 
     others, as long as the employer does not intentionally 
     discriminate against any applicant based on that applicant's 
     immigration status, citizenship status, or country of 
     nationality in the course of applying these criteria.
       This intention is further spelled out in section 412(a)(3) 
     of this legislation. That section adds language at the end of 
     section 212(n)(1) that states explicitly that the recruitment 
     attestation is not to be construed to preclude an employer 
     from using ``legitimate selection criteria relevant to the 
     job that are normal or customary to the type of job 
     involved.'' The purpose of this language is to make clear 
     that an employer may use ordinary selection criteria in 
     evaluating the relative qualifications of an H-1B worker and 
     a U.S. worker. It is intended to emphasize that the 
     obligation to hire a U.S. worker who is ``equally or better 
     qualified'' is not intended to substitute someone else's 
     judgment for the employer's regarding the employer's hiring 
     needs. Rather, the employer remains free to use ordinary 
     hiring criteria, whether subjective or objective, in deciding 
     who in the employer's view is the right person for the job. 
     Moreover, its judgment as to what qualifications are relevant 
     to a particular job is entitled to very significant 
     deference.
       At the same time, this rule of construction is intended to 
     insure that U.S. workers are given a fair chance at any job, 
     rather than being turned down as a result of prejudice a 
     particular employer may have against U.S. workers. It is not 
     intended to allow an employer to impose spurious hiring 
     criteria with the intent of discriminating against U.S. 
     applicants in favor of H-1Bs and thereby subvert employer 
     obligations to hire an equally or better qualified U.S. 
     worker.
       The provision is, however, intended to insure that a 
     properly deferential and latitudinous understanding of the 
     notion of relevant qualifications is used in interpreting 
     these provisions. In that regard, it is emphatically not 
     Congress's intention to invite the kind of elaborate scrutiny 
     of selection criteria and the accompanying ``validation'' 
     machinery that has developed under ``disparate impact'' 
     analysis of such criteria under Executive Order 11246 and 
     Title VII of the Civil Rights Act of 1964. Given the absence 
     of any kind of record that employers use hiring criteria as a 
     covert mechanism for preferring non-U.S. workers, such an 
     analysis would make no sense in this context. That is why the 
     bill deliberately avoids terms like ``job-related,'' 
     ``related to the job'', or the ``use'' of selection criteria 
     to discriminate.
       Rather, what is intended is a common-sensical approach, 
     under which an employer does not have to prove that ordinary 
     selection criteria such as class rank, a degree from a 
     superior school, people skills, recommendations from former 
     employers, or qualities such as dependability are a 
     legitimate basis on which to prefer one applicant over 
     another. Likewise, the employer need not prove that a 
     particular qualification or skill that it is looking for and 
     that in a common-sense world would obviously be relevant, 
     helpful, or useful to doing a job is necessary or 
     indispensable in order to be able to consider that 
     qualification or skill in its selection decisions. 
     Additionally, business reasons such as the relative salary 
     demands of competing candidates may also legitimately be 
     considered, although only, of course, to the extent 
     consistent with the employer's obligation under section 
     212(n)(1)(A) to pay the higher of prevailing or actual wage. 
     For similar reasons, the intent is not to require employers 
     to retain extensive documentation in order to be able 
     retroactively to justify recruitment and hiring decisions, 
     provided that the employer can give an articulable reason for 
     the decisions that it actually made.
       4. Employers and H-1B workers covered by the new 
     statements. Section 412(a) of this legislation adds a new 
     subparagraph (E)(ii) to section 212(n)(1) which specifies 
     which employers have to include the new statements on their 
     applications. There are two categories of covered employers: 
     (1) ``H-1B dependent'' employers and (2) employers who, after 
     enactment of the Act, have been found to have committed a 
     willful failure to meet a condition set out in section 
     212(n)(1) or a willful misrepresentation of material fact on 
     a labor condition attestation.
       The first category, ``H-1B dependent'' employers, is 
     defined in new paragraph (3)(A) of section 212(n), added by 
     section 412(b) of this legislation. Under that definition, an 
     employer is H-1B dependent if it has 51 or more full-time 
     equivalent employees, 15% or more of whom are H-1B workers. 
     Employers with 25 or fewer full-time equivalent employees are 
     H-1B dependent if they have more than 7 H-1B employees, and 
     employers with between 26 and 50 full-time equivalent 
     employees are H-1B dependent if they have more than 12 H-1B 
     employees.
       The second category of covered employers is those who have 
     been found to have committed a willful failure or a willful 
     misrepresentation under 212(n)(2)(C) or 212(n)(5). These 
     employers must include the new statements on their 
     applications for five years after the finding of violation. 
     Of course, in order to trigger coverage, the finding of 
     willful violation must have been made in a manner consistent 
     with the other procedural requirements in the Act, including 
     the prohibition on the investigation of complaints or other 
     information provided more than 12 months after the alleged 
     violation, see 212(n)(2)(A) and 212(n)(2)(G)(v). Thus, this 
     provision confers no superseding authority for DOL to take 
     action with respect to violations outside that time period.
       Under new subparagraph (E)(ii) of 212(n)(1), employers 
     required to include the new statements on their applications 
     are excused from doing so on applications that are filed only 
     on behalf of ``exempt'' H-1B nonimmigrants. An ``exempt'' H-
     1B nonimmigrant is defined in new paragraph (3)(B) of section 
     212(n) (added by section 102(b) of this legislation) as one 
     whose wages, including cash bonuses and other similar 
     compensation, are equal to at least $60,000 or who has a 
     master's or higher degree (or its equivalent). In determining 
     whether an employer is H-1B dependent, under new paragraph 
     (3)(C) (also added by section 412(b) of this legislation), 
     these exempt H-1Bs are excluded from both the numerator and 
     denominator in the calculation of the percentage (or, in the 
     case of employers with 50 or fewer full-time equivalent 
     employees, from the count of both total full-time equivalent 
     employees and the count of H-1Bs) for the first six months 
     after enactment, or until promulgation of final regulations, 
     whichever is longer.
       Finally, subparagraph (E)(ii) specifies that the 
     requirement to include the new statements on applications 
     applies only to applications filed before October 1, 2001.
       Subsection 412(c) authorizes employers to post information 
     relating to H-1Bs electronically. This provision is intended 
     to allow employers a choice of methods for informing their 
     employees of the sponsorship of an H-1B nonimmigrant. An 
     employer may either post a physical notice in the traditional 
     manner, or may post or transmit the identical information 
     electronically in the same manner as it posts or transmits 
     other company notices to employees. Therefore, use of 
     electronic posting by employers should not be restricted by 
     regulation.
       Subsection 412(d) makes the new attestation requirements 
     effective on the date of issuance of final regulations to 
     carry them

[[Page S12752]]

     out, and the associated definitions and the new posting 
     provision effective upon enactment.
       Subsection 412(e) allows the Secretary of Labor and the 
     Attorney General to reduce the period for public comment on 
     proposed regulations to no less than 30 days.


           Section 413. Changes in Enforcement and Penalties

       This section specifies the penalty structure for failures 
     to meet the new labor conditions added by section 412. It 
     also raises penalties for willful failures to meet existing 
     labor conditions, and imposes a special penalty for a willful 
     violation of such a condition in the course of which an 
     employer displaces a U.S. worker. It also clarifies that 
     certain kinds of employer conduct constitute a violation of 
     the prevailing wage attestation, and that other kinds of 
     employer conduct are also prohibited in the context of the H-
     1B program. Finally, it grants certain new authorities to the 
     Secretary of Labor and establishes a special enforcement 
     mechanism administered by the Attorney General to address 
     alleged violations of the selection portion of the 
     recruitment attestation.
       Subsection 413(a) sets out a new version of 212(n)(2)(C) of 
     the Immigration and Nationality Act, the provision currently 
     specifying the penalties for certain failures to meet labor 
     conditions. In that subparagraph as amended, clause (i) 
     specifies the penalties for a failure to meet a condition of 
     paragraph (1)(B) (strike or lockout) or a substantial failure 
     to meet a condition of paragraph (1)(C) (posting) or (1)(D) 
     (contents of application), or a misrepresentation of material 
     fact. These remain as they are under current law: 
     administrative remedies including a $1000 fine per violation 
     and a one-year debarment. The clause also specifies that 
     these penalties also apply to a failure to meet a condition 
     of new paragraphs (1)(E) or (1)(F) (the non-displacement 
     attestations) and to a substantial failure to meet a 
     condition of new paragraph (1)(G)(i)(I) (good faith 
     recruitment). The Secretary should consider an employer's 
     compliance with the H-1B program as a whole in determining 
     whether a ``substantial failure'' has occurred.
       New clause (ii) of section 212(n)(2)(C) sets out the new 
     increased penalties for willful failures to meet any 
     condition in paragraph (1), willful misrepresentations of 
     material fact, or violations of new clause (iv) prohibiting 
     retaliation against whistleblowers. These consist of 
     administrative remedies including a $5000 civil fine per 
     violation and a 2 year debarment.
       New clause (iii) sets out a further enhanced penalty for 
     willful failures to meet a condition of paragraph (1) or 
     willful misrepresentations of material fact in the course of 
     which failure or misrepresentation the employer displaced a 
     U.S. worker within 90 days before or after the date of the 
     filing of the visa petition for the H-1B worker by whom the 
     U.S. worker was displaced. This penalty consists of 
     administrative remedies including a $35,000 per violation 
     civil fine and a three year debarment.
       The rationale for this new penalty is that there have been 
     expressions of concern that employers are bringing in H-1B 
     workers to replace more expensive U.S. workers whom they are 
     laying off. Current law, however, requires employers to pay 
     the higher of the prevailing or the actual wage to an H-1B 
     worker. Thus, the only way an employer could profitably be 
     systematically doing what has been being suggested is by 
     willfully violating this obligation. Otherwise, the employer 
     would have no economic reason for preferring an H-1B worker 
     to a U.S. worker as a potential replacement. Thus, the new 
     penalty set out in new clause (iii) is designed to assure 
     that there are adequate sanctions for (and hence adequate 
     deterrence against) any such conduct by imposing a severe 
     penalty on a willful violation of the existing wage-payment 
     requirements in the course of which an employer 
     ``displaces'' a U.S. worker with an H-1B worker.
       At the same time, Congress chose not to make the layoff 
     itself a violation. The reason for this is that there are 
     many reasons completely unconnected to the hiring of H-1B 
     workers why an employer may decide to lay off U.S. workers: 
     for example, because it decides to discontinue a product line 
     that is losing money, because it is inefficient to maintain 
     an office in a particular location, or because it has decided 
     to refocus on other aspects of its business. Congress did not 
     want to turn these legitimate business decisions into 
     investigable, let alone punishable events. Accordingly, it is 
     important to understand that unlike the new attestation 
     requirements imposed by the amendments to section 212(n)(1), 
     clause (iii) of section 212(n)(2)(C) provides no new 
     independent basis for DOL to investigate an employer's layoff 
     decisions. The only point at which DOL can do so pursuant to 
     clause (iii) is after it has already found that the employer 
     has committed a willful violation of one of the pre-existing 
     labor condition attestations.
       Thus, just as was the case before enactment of clause 
     (iii), to be actionable by DOL in the first instance, except 
     where an employer has executed one of the new attestations 
     added to section 212(n)(1), an allegation must provide 
     reasonable cause to believe not that an employer has 
     displaced a U.S. worker with an H-1B worker but that an 
     employer has violated one of the pre-existing attestations 
     (and, of course, the other procedural requirements for 
     initiation of an investigation must be satisfied as well). 
     Clause (iii) comes into play only after DOL has found that an 
     employer has committed such a violation, and after it has 
     been found to be willful. At that point, and not before, 
     provided that there is reasonable cause to believe that an 
     employer had also displaced a U.S. worker in the course of 
     committing that violation, it would be proper for DOL to 
     investigate, but only in order to ascertain what penalty 
     should be imposed. The definitions concerning 
     ``displacement'' and the like, set out in new 212(n)(3) and 
     212(n)(4) of the Immigration and Nationality Act, and 
     discussed in the previous portion of this section-by-section 
     analysis dealing with the amendments to that Act made by 
     section 412 of this legislation, apply in this context as 
     well.
       The ``administrative remedies'' all these clauses refer to 
     (as well as those referred to in new subparagraph 
     212(n)(5)(E) added by subsection 413(b) of this Act) are 
     unchanged from the ``administrative remedies'' the current 
     version of 212(n)(2)(C) makes available. It should be noted 
     that these do not include an order to an employer to hire, 
     reinstate, or give back pay to a U.S. worker as a result of 
     any violation an employer may commit. In current law, the 
     Secretary's authority to issue an order for back pay even 
     with respect to H-1B workers who are not paid the prevailing 
     wage does not come from the ``administrative remedies'' 
     authority granted in 212(n)(2)(C) but from a separate 
     provision, 212(n)(2)(D), specifically authorizing the 
     issuance of ``order[s] . . . for payment of such amounts of 
     back pay as may be required to comply with the requirements 
     of paragraph (1), whether or not a penalty under subparagraph 
     (C) has been imposed.'' That subparagraph would have been 
     worded quite differently if the authority it granted was 
     already included in the ``administrative remedies'' authority 
     granted under subparagraph (C).
       This construction of the phrase is reinforced by the fact 
     that suggestions from a number of quarters, including the 
     Administration, that the Secretary should be granted the 
     authority to issue orders of this type with respect to U.S. 
     workers, were advanced and ultimately rejected in the final 
     version of this legislation. In the course of negotiations 
     leading to the bill currently before the Senate, the 
     Administration ultimately was forced to accept the reality 
     that authority of this type could not be conferred without 
     radically transforming the way this program operates and 
     indicated that acceptance by withdrawing its demand for this 
     authority in favor of other concessions. The relevant 
     documents from the Administration demonstrating this are 
     submitted for the record following this statement. As can be 
     seen, the initial document contains a point 7 seeking this 
     authority, and that point 7 is crossed out in the later 
     document. The reason suggestions for inclusion of this type 
     of authority were ultimately rejected was the sense that they 
     would end up transforming the traditional enforcement model 
     used for the current program into something more resembling a 
     new font of civil employment litigation.
       New clause (iv) essentially codifies current Department of 
     Labor regulations concerning whistleblowers. It is included 
     not in order to change current standards concerning when a 
     person has been the victim of retaliation, but because the 
     source of statutory authority for the current regulations is 
     somewhat unclear.
       New clause (v) is intended to complement clause (iv) by 
     directing the Secretary of Labor and the Attorney General to 
     devise a process to make it easy for someone who has filed a 
     complaint under clause (iv) to seek a new job. It is 
     contemplated that this process would be expeditious and easy 
     to use, so that the employee does not need to wait for a new 
     employer to obtain approval for a new petition in order to 
     change jobs in these circumstances.
       New clause (vi)(I) prohibits employers from requiring H-1B 
     workers to pay a penalty for leaving an employer's employ 
     before a date agreed to between the employer and the worker. 
     It directs that the Secretary is to decide the question 
     whether a required payment is a prohibited penalty as opposed 
     to a permissible liquidated damages clause under relevant 
     State law (i.e. the State law whose application choice of law 
     principles would dictate). Thus, this section does not itself 
     create a new federal definition of ``penalty'', and it 
     creates no authority for the Secretary to devise any kind of 
     federal law on this issue, whether through regulations or 
     enforcement actions. If the Secretary determines that a 
     required payment is a prohibited penalty under governing 
     State law, however, under this provision, it is also a 
     violation of new clause (vi)(I), and the Secretary may take 
     action under new subclause (vi)(III).
       New clause (vi)(II) prohibits employers from requiring H-1B 
     workers to reimburse or otherwise compensate employers for 
     the new fee imposed under new section 214(c)(9), or to accept 
     such reimbursement or compensation.
       New clause (vi)(III) specifies that the penalty for 
     violating subclauses (I) or (II) is a civil monetary penalty 
     of $1,000 per violation and the return to the H-1B worker (or 
     to the Treasury, if the H-1B worker cannot be located) of the 
     required payment made by the worker to the employer.
       New clause (vii) addresses an issue known colloquially as 
     ``benching.'' This issue involves a practice under which an 
     employer brings over an H-1B worker on the promise that the 
     worker will be paid a certain wage, but then pays the worker 
     only a fraction of that wage because the employer does not 
     have work for the H-1B worker to do. There

[[Page S12753]]

     is a shortage of evidence on the extent to which employers 
     are engaging in this practice. The anecdotal information 
     suggests that to the extent employers are engaging in it, 
     they are likely principally to be contractors who hire out 
     their employees to other employers for particular projects.
       Subclause (I) clarifies that this practice of ``benching'' 
     is a violation of the employer's obligation to pay the 
     prevailing or actual wage. It is the intent and understanding 
     of Congress that this includes an obligation to provide the 
     full benefits package that the employer would provide to a 
     U.S. worker as required under clause (viii) discussed below.
       Subclause (II) further clarifies that in the case of an H-
     1B worker designated as a part-time employee on a visa 
     petition, an employer commits this violation by failing to 
     pay the H-1B worker for the number of hours, if any, the 
     employer has designated on the petition at the rate of pay 
     designated on the petition. Nothing in subclause (II) is 
     intended to preclude H-1B employment on a part-time or as-
     needed basis, so long as that is the understanding on which 
     the H-1B employee was hired, or to impose or authorize the 
     Secretary of Labor or the Attorney General to impose any new 
     requirement that the employer designate in advance the hours 
     a part-time H-1B employee is expected to work. Additionally, 
     nothing in subclauses (I) or (II) is intended to give the 
     Department of Labor the authority to reclassify an employee 
     designated as part-time as full-time based on the employee's 
     actual workload after the employee begins employment. 
     Finally, of course, nothing in clause (vii) is intended to 
     prohibit an employer from terminating an H-1B worker's 
     employment on account of lack of work or for any other 
     reason.
       Subclause (III) describes the manner in which the 
     provisions of subclauses (I) and (II) apply to an employee 
     who has not yet entered into employment with an employer. In 
     such cases, the employer's obligation is to pay the H-1B 
     worker the required wage beginning 30 days after the H-1B 
     worker is first admitted, or in the case of a nonimmigrant 
     already in the United States and working for a different 
     employer, 60 days after the date the H-1B worker becomes 
     eligible to work for the new employer. If a change of status 
     or other formalities beyond approval of the petition are 
     required in order for the latter nonimmigrant to be eligible 
     to work for the employer, the 60 days begin to run on the 
     date that the last formality necessary to make the H-1B 
     worker eligible to work for the employer has been completed.
       Subclause (IV) makes clear that an employer does not commit 
     a violation of the prevailing/actual wage attestation by 
     granting an H-1B worker a period of unpaid leave or reduced 
     pay for reduced hours worked at the request of the H-1B 
     worker. Thus, H-1B employees taking unpaid leave for other 
     reasons, i.e. leave under the Family and Medical Leave Act or 
     other corporate policies, annual plant shutdowns for holidays 
     or retooling, summer recess or semester breaks, or personal 
     days or vacations, should not be considered ``benched.'' It 
     is possible, of course, that the employer might violate some 
     other law, either State or federal, by failing to pay an 
     H-1B worker for leave time, if that law requires employers 
     to pay workers for such leave periods. It is also possible 
     that the employer might violate new clause (viii) of 
     section 212(n)(2)(C), discussed below, if it would 
     ordinarily offer similarly situated U.S. workers paid 
     leave and is singling out the H-1B worker for denial of 
     this benefit. Hence the inclusion of subclause (VI), which 
     makes clear that the fact that a practice is within an 
     exception covered by this subclause does not insulate it 
     from challenge under clause (viii). If the leave is 
     requested by the H-1B worker, however, it does not present 
     a clause (vii) issue.
       Subclause (V) is intended to make clear that a school or 
     other educational institution that customarily pays employees 
     an annual salary in disbursements over fewer than 12 months 
     may pay an H-1B worker in the same manner without violating 
     clause (vii), provided that the H-1B worker agrees to this 
     payment schedule in advance. Because Congress is not aware of 
     all the possible kinds of legitimate salary arrangements that 
     employers may establish, the situation covered by subclause 
     (V) may be merely illustrative of other kinds of legitimate 
     salary arrangements under which an employee's rate of pay may 
     vary. Accordingly, so long as an H-1B worker is not being 
     singled out by such a salary arrangement, it is not 
     Congress's intent that such a salary arrangement be treated 
     as suspect under or violative of clause (vii) merely because 
     there is no special provision like subclause (V) addressing 
     it. To the contrary, if it is an arrangement that the 
     employer routinely uses with U.S. employees as well as H-1B 
     workers, it should be treated as presumptively not a 
     violation of that clause.
       Clause (viii) adds an additional clarification concerning 
     an employer's obligations under the attestation set forth in 
     212(n)(1)(A). It states that it is a violation of those 
     obligations for an employer to fail to offer benefits and 
     eligibility for benefits to H-1B workers on the same basis, 
     and in accordance with the same criteria, as the employer 
     offers benefits and eligibility for benefits to U.S. workers. 
     This obligation is only an obligation to make benefits 
     available to an H-1B worker if an employer would make those 
     benefits available to the H-1B worker if he or she were a 
     U.S. worker. Thus, if an employer offers benefits to U.S. 
     workers who hold certain positions, it must offer those same 
     benefits to H-1B workers who hold those positions. 
     Conversely, if an employer does not offer a particular 
     benefit to U.S. workers who hold certain positions, it is not 
     obligated to offer that benefit to an H-1B worker. Similarly, 
     if an employer offers performance-based bonuses to certain 
     categories of U.S. workers, it must give H-1B workers in the 
     same categories the same opportunity to earn such a bonus, 
     although it does not have to give the H-1B worker the actual 
     bonus if the H-1B worker does not earn it. While this clause 
     is not intended to require that H-1B workers be given access 
     to more or better benefits than a U.S. worker who would be 
     hired for the same position, it does not forbid an employer 
     from doing so. For example, an employer might conclude that 
     it will pay foreign relocation expenses for an H-1B worker 
     whereas it will not pay such relocation expenses for a U.S. 
     worker.
       Clause (viii)'s phrasing of the employer's duty as an 
     obligation to provide ``benefits and eligibility for 
     benefits'', rather than just one or the other, was chosen to 
     protect against two eventualities. On the one hand, it would 
     not be proper for an employer to make an H-1B worker 
     ``eligible'' for benefits on the same basis as its U.S. 
     workers but then proceed to actually provide them to its U.S. 
     workers but never provide them to the H-1B worker. While this 
     construction of an obligation to make a person ``eligible'' 
     for a benefit may seem a little strained, sufficient concerns 
     were expressed about this possibility that it seemed worth 
     eliminating any ambiguity on the point by including the first 
     prong of the obligation. On the other hand, in order actually 
     to receive many kinds of benefits, employees are frequently 
     required to take some kind of action on their end, whether to 
     select a plan, to provide partial payment for the benefits, 
     to work for the employer for a certain period of time, or to 
     perform at a high level. The actual provision of other kinds 
     of benefits may also turn on other contingencies, such as, in 
     the case of some kinds of bonuses and stock options, the 
     company's year-end performance. Accordingly, the core 
     obligation that makes sense with respect to many benefits is 
     an obligation to make H-1B workers ``eligible'' for them. 
     Finally, the obligation is to make the H-1B worker eligible 
     ``on the same basis, and in accordance with the same 
     criteria'' as U.S. workers. Thus, in determining whether an 
     employer is meeting this obligation, care must be taken to 
     find the right U.S. worker to whom to compare the H-1B worker 
     in terms of access to benefits.
       A few examples are useful in understanding this important 
     principle. If a particular benefit is available only to an 
     employer's professional staff, then it only need be made 
     available to an H-1B filling a professional staff position. 
     If an employer's practice is not to offer benefits to part-
     time or temporary U.S. workers, then it is not required to 
     offer benefits to part-time H-1B workers or temporary H-1B 
     workers employed for similar periods. If an employer's 
     practice is to have its U.S. workers brought in on temporary 
     assignment from a foreign affiliate of the employer remain on 
     the foreign affiliate's benefits plan, then it must allow its 
     H-1B workers brought in on similar assignments to do the 
     same. Likewise, in that instance, it need not provide the H-
     1B workers with the benefits package it offers to its U.S. 
     workers based in the U.S. Indeed, even if it does not have 
     any U.S. workers stationed abroad whom it has brought in in 
     this fashion, it should be allowed to keep the H-1B worker on 
     its foreign payroll and have that employee continue to 
     receive the benefits package that other workers stationed at 
     its foreign office receive in order to allow the H-1B worker 
     to maintain continuity of benefits. In that instance, the 
     basis on which the worker is being disqualified from 
     receiving U.S. benefits (that he or she is receiving a 
     different benefits package from a foreign affiliate) is one 
     that, if there were any U.S. workers who were similarly 
     situated, would be applied in the same way to those workers. 
     Hence the H-1B worker is being treated as eligible for 
     benefits on the same basis and according to the same criteria 
     as U.S. workers. It is just that the criterion that 
     disqualifies him or her happens not to disqualify any U.S. 
     workers. Or to put the point a little differently: the H-1B 
     worker is being given different benefits from the U.S. 
     workers not because of the worker's status as an H-1B worker 
     but because of his or her status as a permanent employee of a 
     foreign affiliate with a different benefits package.
       This provision is not meant to supersede an employer's 
     obligations under other provisions of the law, or its 
     obligations to comply with international agreements governing 
     social security benefits, taxes, retirement plans or other 
     similar benefits. Finally, this provision does not require an 
     employer to offer benefits or any particular category of 
     benefits to its H-1B workers (or anyone else) if its practice 
     is not to offer benefits or the particular category of 
     benefits to its similarly situated U.S. workers.
       Section 413(b) adds a new paragraph (5) at the end of 
     212(n) that sets out the exclusive remedial mechanism for 
     alleged violations of the selection portion of the 
     recruitment attestation set out in new paragraph 
     212(n)(1)(G)(i)(II) or any alleged misrepresentations 
     relating to that attestation. It also contains a savings 
     clause that states that it should not be construed to affect 
     the Secretary or the Attorney General's authorities with 
     respect to other violations. This was to address the possible 
     case where evidence

[[Page S12754]]

     tending to establish a violation of the selection attestation 
     also tends to establish a violation of some other 
     attestation. This savings clause, however, is not meant to 
     serve as a backdoor way around the exclusivity of the remedy 
     set out in 212(n)(5) for a violation of the selection 
     attestation itself. It should also be noted that by setting 
     up separate mechanisms, one lodged at Labor concerning 
     recruitment and one lodged at Justice concerning selection, 
     this provision contemplates that the two different kinds of 
     violations be handled differently. Thus, it does not 
     contemplate, for example, recharacterizing a ``failure to 
     select'' complaint as a ``failure to recruit in good faith'' 
     and then using the enforcement regime for the latter category 
     of violations to pursue what in fact is a ``failure to 
     select'' complaint. Moreover, it is unlikely that evidence 
     tending to establish a violation of the selection attestation 
     would tend to establish a violation of the recruitment 
     attestation, since such evidence, whatever else it would tend 
     to prove, would tend to prove that the employer had made 
     sufficient efforts to recruit that others applied for the 
     job. Finally, it should be noted that nothing in this section 
     should be construed to give the Attorney General or the 
     Department of Labor any authority to write regulations or 
     guidelines concerning permissible and impermissible selection 
     criteria or mechanisms for determining when such selection 
     criteria are permissible or impermissible.
       Under the enforcement scheme set up by paragraph (5), any 
     person aggrieved by an alleged violation of 
     212(n)(1)(G)(i)(II) or a related misrepresentation who has 
     applied in a reasonable manner for the job at issue may file 
     a complaint with the Attorney General within 12 months of the 
     date of the violation or misrepresentation. The Attorney 
     General is charged with establishing a mechanism for pre-
     screening such a complaint to determine whether it provides 
     reasonable cause to believe that such a violation or 
     misrepresentation has occurred. If the Attorney General does 
     find reasonable cause, she is charged with initiating binding 
     arbitration proceedings by requesting the Federal Mediation 
     and Conciliation Service to appoint an arbitrator from the 
     Service's roster.
       The arbitrator is to be selected in accordance with the 
     procedures and rules of the Service. He or she should have 
     experience with personnel decisions in the industry to which 
     the employer belongs, unless for some reason this is not 
     possible. The fees and expenses for the arbitrator are to be 
     paid by the Attorney General.
       The arbitrator is charged with deciding whether the alleged 
     violation or misrepresentation occurred and whether, if it 
     occurred, it was willful. The complainant has the burden of 
     establishing such violation or misrepresentation by clear and 
     convincing evidence. If the complainant alleges that the 
     violation or misrepresentation was willful, the complainant 
     also has the burden of establishing that allegation under the 
     same standard. This standard was selected in order to avoid 
     the risk that the arbitrator could otherwise end up simply 
     substituting the arbitrator's judgment for the employer's 
     concerning the relative qualifications of potential 
     employees. The arbitrator's decision should likewise pay 
     careful heed to the rule of construction set forth at the end 
     of section 212(n)(1).
       The arbitrator's decision is subject to review by the 
     Attorney General only to the same extent as arbitration 
     awards are subject to vacation or modification under 9 U.S.C. 
     10 or 11, and to judicial review only in an appropriate court 
     of appeals on the grounds described in 5 U.S.C. 706(a)(2).
       The remedies for violations resemble those established for 
     the other violations of the labor condition attestations 
     (administrative remedies including $1,000 fines per violation 
     or $5,000 fines per willful violation and a potential 
     debarment of one year, or two years for a willful violation).
       The Attorney General is prohibited from delegating the 
     responsibilities assigned her to anyone else unless she 
     submits a plan for such a delegation 60 days before its 
     implementation to the Committees on the Judiciary of each 
     House of Congress. This is in order to assure that Congress 
     has an adequate opportunity to be involved in the decision 
     regarding where at the Department of Justice the Attorney 
     General plans on lodging this function.
       Section 413(c) adds a new section 212(n)(2)(E) describing 
     the liability of an employer who has executed the ``secondary 
     non-displacement attestation'' for placing a non-exempt H-1B 
     worker with respect to whom it has filed an application 
     containing such an attestation with another employer under 
     the circumstances described in paragraph (1)(F). If the other 
     employer has displaced a U.S. worker (under the definitions 
     used in this legislation) during the 90 days before or after 
     the placement, the attesting employer is liable as if it had 
     violated the attestation. The sanction is a $1,000 civil 
     penalty per violation and a possible debarment. The attesting 
     employer can only receive a debarment, however, if it is 
     found to have known or to have had reason to know of the 
     displacement at the time of the placement with the other 
     employer, or if the attesting employer was previously 
     sanctioned under 212(n)(2)(E) for placing an H-1B 
     nonimmigrant with the same employer. If an employer has 
     conducted the inquiry that it is required to attest that it 
     has conducted before any such placement, and (as that 
     attestation requires) acquired no knowledge of displacement 
     of a U.S. worker in the course of that inquiry, it should 
     ordinarily be presumed not to have known or have reason to 
     know of a displacement unless there is an affirmative showing 
     that it did have such knowledge or reason to know. It should 
     also be noted that an employer can be held liable for such a 
     placement only if it filed an application that contained the 
     ``secondary non-displacement attestation,'' and only with 
     respect to H-1B workers covered by such an application.
       Subsection 413(d) adds a new section 212(n)(2)(F) granting 
     the Secretary authority to conduct random investigations of 
     employers found after enactment of this act to have 
     committed a willful violation or willful misrepresentation 
     for five years following the finding.
       Subsection 413(e) grants the Secretary limited additional 
     authority with respect to other employers to investigate 
     certain kinds of allegations of failures to comply with labor 
     condition attestations. The Secretary's authority under 
     current law is limited to investigating complaints concerning 
     such violations that come from aggrieved parties. Under the 
     authority granted by new subparagraph (G) of 212(n)(2), added 
     by paragraph (1) of subsection 413(e) of this Act, under 
     certain circumstances the Secretary will also be authorized 
     to investigate for 30 days allegations of willful failures to 
     meet a condition of paragraph (1)(A), (1)(B), (1)(E), (1)(F), 
     or (1)G)(i)(I), allegations of a pattern or practice by an 
     employer of failures to meet such a condition, or allegations 
     of a substantial failure to meet such a condition that 
     affects multiple employees even if those allegations do not 
     come from an aggrieved party.
       The rationale for this grant of authority is to make sure 
     that if DOL receives specific, credible information from 
     someone outside the DOL that an employer is doing something 
     seriously wrong but that information comes from someone who 
     is not an aggrieved party, DOL can nevertheless pursue the 
     lead.
       In order for the Secretary to exercise the authority 
     granted her under new subparagraph (G), the allegations will 
     have to be based on specific credible information from a 
     source who is likely to have knowledge of an employer's 
     practices of employment conditions or an employer's 
     compliance with the employer's labor condition application. 
     Thus, this provision does not authorize ``self-directed'' or 
     ``self-initiated'' investigations by the Secretary. Rather, 
     as specified in clauses (ii) and (iii), an investigation can 
     only be launched on the basis of a communication by a person 
     outside the Department of Labor to the Secretary, or on the 
     basis of information the Secretary acquires lawfully in the 
     course of another investigation within the scope of one of 
     her statutory investigative authorities. The source's 
     identity must also be known to the Secretary. Thus, the 
     Secretary may not rely on anonymous tips in exercising this 
     authority, although she may withhold the source's identity 
     from the employer or others. As clause (iv) states, 
     information received from the employer that the employer is 
     required to file in order to obtain an H-1B visa does not 
     constitute the ``receipt of information'' under this 
     subparagraph. This is meant to be illustrative rather than 
     exclusive. The same principle would prevent other kinds of 
     information filed by the employer in the course of seeking 
     some other benefit from DOL, such as labor certification, for 
     example, to constitute the ``receipt of information'' either.
       In giving effect to the provisions specifying the kinds of 
     alleged violations that may be investigated under this 
     authority, the purpose of this authority should likewise be 
     taken into account. Thus, for example, a ``substantial 
     failure to meet such a condition that affects multiple 
     employees'' should not be understood to mean an unintentional 
     posting violation even if it affects many employees. Nor 
     should it be understood to mean a more significant violation 
     but one that affects only a handful of people. Rather, it 
     should be understood to be a violation of a magnitude that 
     warrants the unusual step of committing DOL's resources even 
     though there is no aggrieved complaining party.
       Subparagraph (G) also establishes several procedural 
     safeguards to prevent this authority from being abused. 
     First, under clause (i), there must be a finding of 
     reasonable cause to believe that an employer is committing 
     one of the covered violations. Second, the Secretary (or the 
     Acting Secretary, in the case of the Secretary's absence of 
     disability) must personally certify that this requirement and 
     the other requirements of clause (i) have been met before an 
     investigation may be launched. This authority cannot be 
     delegated to anyone else in the Department. Third, as in 
     current law regarding investigations of complaints, the 
     investigation may only last 30 days. Fourth, rather than 
     being a generalized grant of authority to investigate the 
     employer, the Secretary's authority is limited to 
     investigating only the alleged violation or violations. 
     Fifth, under clause (ii), the information provided by the 
     source must be put in writing, either by the source itself or 
     by a DOL employee on behalf of the source. Sixth, under 
     clause (v), the information may not concern a violation that 
     took place longer ago than 12 months, so investigations may 
     not be launched on the basis of stale information. 
     Additionally, under clause (vi), the Secretary is directed to 
     provide notice to an employer of the information that may 
     lead to the launching of an investigation and an opportunity 
     to respond to that information before an investigation is 
     actually initiated.
       This last requirement is waivable by the Secretary where 
     the Secretary determines that complying with it will 
     interfere with

[[Page S12755]]

     her efforts to secure compliance by the employer with the H-
     1B program requirements. That the decision whether to waive 
     it is left to the Secretary's discretion does not mean that 
     it should be made lightly, or that it should be the rule 
     rather than the exception. Rather, it is Congress's 
     expectation that the Secretary will provide the otherwise 
     required notice unless she has a reasonable belief, based on 
     credible evidence, that the employer can be expected to avoid 
     compliance because of the notice. Past, proven willful 
     violations could be such evidence. Congress's belief, 
     however, is that most employers will correct a problem if 
     brought to their attention and it cannot be assumed that 
     simply because allegations have been made that the employer 
     will not do so. The scant number of willful violations that 
     DOL has found in the history of this program suggests that 
     this is likely to be the rule rather than the exception. 
     Thus, in many cases, notice will advance the twin ends of 
     compliance (or a credible explanation demonstrating that the 
     facts do not support the allegations and an investigation is 
     not needed) and the ability to preserve the Secretary's 
     enforcement resources so they can be used on other pressing 
     matters.
       Finally, clause (vii) makes clear that after completion of 
     the 30-day investigation, if the Secretary finds that a 
     reasonable basis exists to make a finding that a violation of 
     the type described in clause (i) has occurred, the procedure 
     follows the procedure in existing law, under which the 
     employer is entitled to notice of the finding and an 
     opportunity for a hearing within 60 days. After the hearing, 
     the employer is entitled to a finding by the Secretary not 
     more than 60 days later.
       One last point should be noted in regard to this authority. 
     Both this new grant of authority and existing authority to 
     investigate complaints require that DOL have ``reasonable 
     cause to believe'' that the employer is committing a 
     violation (limited, in the case of the authority granted 
     in new subparagraph (G), to certain kinds of violations). 
     This requirement is meant to track that of the Fourth 
     Amendment. Thus, if an employer believes that DOL does not 
     have the ``reasonable cause'' required, it is free to 
     refuse to give DOL access to the materials DOL is seeking 
     and put DOL to the test on that point. In other words, 
     Congress's view is that an employer does not waive any 
     Fourth Amendment rights by applying for an H-1B visa or by 
     filing any documents required to obtain one, and that DOL 
     has no authority to use the occasion of the employer's 
     filing such materials to compel such a waiver.
       Paragraph (2) of subsection 413(e) sunsets the new DOL 
     investigative authority granted by paragraph (1) on September 
     30, 2001.
       Subsection 413(f) clarifies that none of the enforcement 
     authorities granted in subsection 212(n)(2) as amended should 
     be construed to supersede or preempt other enforcement-
     related authorities the Secretary of Labor or the Attorney 
     General may have under the Immigration and Nationality Act or 
     any other law.


     Section 414. Collection and Use of H-1B Nonimmigrant Fees for 
  Scholarships for Low-Income Math, Engineering and Computer Science 
           Students and Job Training of United States Worker

       Subsection 414(a) adds a new paragraph at the end of 
     section 214(c) of the Immigration and Nationality Act 
     imposing a $500 fee on employers filing petitions for H-1B 
     nonimmigrants. This fee is to be collected by the Immigration 
     and Naturalization Service. The statute requires that the fee 
     be charged starting on December 1, 1998. INS has informed the 
     Congress that this will give it sufficient time to establish 
     a mechanism for collecting the fee that will not delay the 
     processing of visa petitions. It is the Congress's hope and 
     expectation that INS will establish that system as 
     expeditiously as possible, and will have it in place on 
     December 1. If, however, INS does not have a system up and 
     running for collecting the fee at that time, it is not 
     required or expected to stop accepting, processing, or 
     approving visa petitions. To the contrary, it is expected 
     that it will continue to accept, process, and approve visas 
     without delay while also moving as quickly as possible to put 
     the system for collecting the fee in place.
       Under this provision, the fee will be paid by the employer 
     in three circumstances: (1) upon initial application for the 
     nonimmigrant to obtain H-1B status (through change from 
     another status or by securing a visa from abroad); (2) the 
     first time an employer files a petition for the purpose of 
     extending the nonimmigrant's H-1B status; and (3) when a new 
     employer is petitioning for an alien who is already in H-1B 
     status whom the new employer wants to hire away from the H-
     1B's current employer.
       The fee will apply to any petition filed by the same 
     employer that has the effect of extending the nonimmigrant's 
     status for the first time, whether that is its sole purpose 
     or whether it is a dual-purpose petition that both, for 
     example, advises the Immigration and Naturalization Service 
     of a material change in the terms and/or conditions of the 
     alien's employment and extends the alien's stay.
       On the other hand, an employer will not have to pay the fee 
     for any extension after a first extension petition filed by 
     that employer. This section is meant to ensure that a single 
     employer not be required to pay the $500 fee more than twice 
     for a single H-1B nonimmigrant. In addition, petitions filed 
     for such purposes as advising the Immigration and 
     Naturalization Service of a material change in the terms and/
     or conditions of the alien's employment (an amended petition) 
     or to advise the INS of a change in the circumstances of the 
     employer (such as notification of a successor-in-interest 
     following a corporate merger, acquisition or sale), or for 
     assigning an H-1B worker to a new area of employment or to a 
     different legal entity within the employer's corporate 
     structure, will not ordinarily require payment of the fee. To 
     repeat, the only circumstance in which an employer will have 
     to pay the fee for a petition of this type is when the 
     petition also has the effect of extending the alien's status 
     and is the first petition that employer has filed to extend 
     that alien's status.
       In addition, even when a prior employer paid the fee, a new 
     employer would be required to pay the fee when it hires an H-
     1B nonimmigrant who changes jobs or when an H-1B is hired to 
     engage in concurrent employment.
       Universities and nonprofit research institutes are exempted 
     from the fee.
       Subsection 414(b) amends section 286 of the Immigration and 
     Nationality Act by adding a new subsection (s) requiring the 
     establishment of an account for holding the fees assessed 
     under section 214(c). The new subsection also specifies the 
     distribution of the funds, to be divided among the Workforce 
     Improvement Act (56.3%), a new program established by the Act 
     setting up low-income university scholarships for 
     mathematics, engineering, and computer science administered 
     by the National Science Foundation (28.2%), grants for 
     science and math development for those in kindergarten 
     through 12th grade through existing programs administered by 
     the National Science Foundation (8%), DOL processing and 
     enforcement relating to the H-1B program (6% total), and INS 
     processing of H-1B visas (1.5%).
       With respect to the funding for DOL, although the funds are 
     not equally divided by law between the processing and 
     enforcement functions during the first fiscal year, the 
     expectation is that they will be split 50-50 unless DOL 
     determines that it needs to spend more funds on processing in 
     order to get into compliance with the 7 day statutory 
     deadline under which it is supposed to be either certifying 
     an application or rejecting it for incompleteness or obvious 
     inaccuracies. After the first fiscal year, the money is 
     equally split by statute, except that none of the money can 
     be spent on enforcement unless the Secretary certifies that 
     the Department was in substantial compliance with the 7-day 
     deadline during the previous calendar year. At present, DOL 
     is routinely violating this obligation, taking up to a month 
     and sometimes up to three months to certify an application, 
     despite the fact that the task is essentially ministerial. It 
     is time for that to end. Moreover, getting into compliance 
     with this obligation should not be accomplished by 
     diverting resources from labor certifications for the 
     permanent employment program. These are presently 
     routinely taking two years, which is far too long.
       The INS funds are designed to enable INS to establish a 
     mechanism for collecting the new fee, to facilitate its 
     revision of its forms and computer systems so as to better 
     enable it to collect the fee and improve its data collection 
     capacity, and to speed up INS's processing time for 
     petitions, which is presently taking up to 3 months. This 
     function should be able to be performed in no more than a 
     month.
       Subsection 414(c) uses a portion of the funds deposited in 
     the account established under subsection 104(b) for the 
     Secretary of Labor to provide grants for demonstration 
     projects and programs for technical skills training for both 
     employed and unemployed workers. These projects and programs 
     will be administered through local boards established under 
     section 121 of the Workforce Investment Act of 1998 or 
     regional consortia of local boards.
       Through this provision, the Secretary will be able to award 
     grants to innovative programs to train employees to meet the 
     workforce shortage needs in the high-tech industry. By doing 
     so, this legislation works to address our country's long-term 
     employment needs by training American workers to fill these 
     crucial jobs. In addition, the legislation addresses the 
     issue of underemployment by allowing grants to go to training 
     programs for both employed and unemployed workers. A regional 
     consortium of local boards can also apply for grants that 
     will encourage regions to work together to meet their area's 
     unique employment needs and encourage business and community 
     colleges to work together to train that region's workers. 
     These grants will allow the Secretary to support innovative 
     training programs that can serve as models for other training 
     programs around the country to learn from their best 
     practices.
       Subsection 414(d) authorizes a low-income scholarship 
     program to be administered by the National Science 
     Foundation. This program would allow the Director of the 
     National Science Foundation to award scholarships to low-
     income students pursuing an associate, undergraduate or 
     graduate level degree in mathematics, engineering, or 
     computer science. The scholarships will be funded through the 
     account established under subsection 414(b). Like the 
     previous subsection, this provision invests in the American 
     workforce by providing scholarships for students interested 
     in pursuing studies in high-tech fields. By making 
     scholarships available to low-income students, this 
     legislation provides incentive and opportunity for

[[Page S12756]]

     students to enter careers in the growing high-tech industry.


              Section 415. Computation of prevailing wage

       Under current law an employer must attest on a Labor 
     Condition Attestation that an individual on an H-1B will be 
     paid the greater of the actual or prevailing wage paid to 
     similarly employed U.S. workers.
       Subsection 415(a) amends section 212 of the Immigration and 
     Nationality Act by adding at the end a new subsection (p) 
     that spells out how that wage is to be calculated in the 
     context of both the H-1B program and the permanent employment 
     program in two circumstances. Paragraph 212(p)(1) provides 
     that the prevailing wage level at institutions of higher 
     education and nonprofit research institutes shall take into 
     account only employees at such institutions. The provision 
     separates the prevailing wage calculations between academic 
     and research institutions and other non-profit entities and 
     those for for-profit businesses. Higher education 
     institutions and nonprofit research institutes conduct 
     scientific research projects, for the benefit of the public 
     and frequently with federal funds, and recruit highly-trained 
     researchers with strong academic qualifications to carry out 
     their important missions. The bill establishes in statute 
     that wages for employees at colleges, universities, nonprofit 
     research institutes must be calculated separately from 
     industry. Although this legislation does not explicitly 
     require separate prevailing wage calculations in relation to 
     for-profit and other non-profit entities that are not higher 
     education institutions and nonprofit research institutes this 
     is not meant to preclude the Department of Labor from making 
     these same common-sense distinctions for other nonprofit 
     entities.
       New paragraph 212(p)(2) spells out the prevailing wage 
     criteria for professional sports. Where there is a collective 
     bargaining agreement (CBA), the minimum wage established 
     therein constitutes the prevailing pay rate. Where no CBA 
     exists, the prevailing wage is the minimum salary mandated by 
     the professional sports league which teams must pay players--
     foreign nationals as well as U.S. workers. The system 
     currently employed to determine the prevailing wage for minor 
     league professional sports uses a ``mean wage.'' Because 
     salaries for professional athletes vary greatly (up to 20 
     times difference between lowest and highest paid players), 
     using the mean wage to calculate prevailing wage actually 
     encourages the leagues to pay approximately fifty percent of 
     the U.S. athletes a lower salary than similarly situated 
     foreign national athletes. This current system is a 
     disincentive to increase U.S. workers' salaries.
       Subsection 415(b) of this legislation makes these rules for 
     prevailing wage calculations retroactive so that they may be 
     applied to any still-open prevailing wage determinations. 
     This will allow DOL to apply only a single set of rules, that 
     set out in subsection 212(p), for making these calculations 
     in these industries, starting on the date of enactment.


     Section 416. Improving of Count of H-1B and H-2B Nonimmigrants

       Subsection 416(a) requires the Immigration and 
     Naturalization Service to improve its counting of the number 
     of actual individuals granted or admitted in H-1B status in 
     each fiscal year, rather than counting approved petitions, 
     which may or may not be used by an individual to obtain H-1B 
     status after approval.
       Subsection 416(b) requires the revision of the petition 
     forms so as to assure that this can be done.
       Subsection 416(c) requires the Attorney General to submit 
     to the House and Senate Judiciary Committees (1) a quarterly 
     count on the number of individuals issued visas or 
     provided nonimmigrant status; and (2) beginning in FY 
     2000, on an annual basis, information on the countries of 
     origin and occupations of, educational levels attained by, 
     and compensation paid to, aliens issued H-1B visas. The 
     first requirement is intended to provide an early warning 
     system if the cap is coming close to being hit. The second 
     requirement is intended to develop reliable information on 
     how these visas are being used.
       In collecting additional data regarding H-1B nonimmigrants, 
     the agency should not have to impose additional or new 
     paperwork burdens on employers. In fact, it is Congress's 
     understanding that the data required to be furnished are 
     currently being collected, but that they are not being 
     entered into a database that would allow them to be used. As 
     a result, the only information Congress has had made 
     available to it on the use of the visas has come from DOL's 
     compilation of information on applications, which, on account 
     of multiple filings, does not accurately reflect who is 
     really coming in. Finally, nothing in this provision should 
     be construed to allow INS to delay or withhold approval or 
     adjudication of petitions in order to comply with its 
     obligations under this provision.


  Section 417. Report on Older Workers in the Information Technology 
                                 Field

       Subsection 417(a) directs the Director of the National 
     Science Foundation to enter into a contract with the National 
     Academy of Sciences to study the status of older workers in 
     information technology field. This study is to focus on the 
     best available data, rather than on anecdotal information.
       Subsection 417(b) requires the results of that study to be 
     supplied to the Committees on the Judiciary of each House of 
     Congress no later than October 1, 2000.


 Section 418. Report on High Technology Labor Market Needs; Reports on 
           Economic Impact of Increase in H-1B Nonimmigrants

       Subsection 418(a) requires a study and report on high tech, 
     U.S., and global issues for the next ten years overseen by 
     the National Science Foundation and done by a panel to be 
     transmitted to the Judiciary Committees of both Houses by 
     October 1, 2000.
       Subsection 418(b) directs that the Chairman of the Board of 
     Governors of the Federal Reserve System, the Director of the 
     Office of Management and Budget, the Chair of the Council of 
     Economic Advisers, the Secretary of the Treasury, the 
     Secretary of Commerce, the Secretary of Labor, and any other 
     member of the cabinet report to Congress on any reliable 
     study that uses legitimate economic analysis that suggests 
     that the increase in H-1B visas under this bill has had an 
     impact on any national economic indicator, such as the level 
     of inflation or unemployment, that warrants action by 
     Congress.
     Subtitle B
       The content of this subtitle was added to S. 1723 on the 
     Senate floor by an amendment offered by Senator Warner 
     incorporating the text of H.R. 429, a bill to grant special 
     immigrant status to certain NATO civilian employees.


    Section 421. Special Immigrant Status for Certain NATO Employees

       This section amends Section 101(a)(27) of the Immigration 
     and Nationality Act to add to the class of those eligible for 
     special immigrant status certain NATO employees and their 
     children on the same basis as employees of other qualifying 
     international organizations.
     Subtitle C
       This subtitle makes an additional amendment to the 
     Immigration and Nationality Act originally included in S. 
     1723 regarding permissible payments by universities to 
     holders of visitors' visas.


                     Section 431. Academic Honoria

       This section amends section 212 of the Immigration and 
     Nationality Act by adding at the end a new subsection (q) 
     permitting universities and other nonprofit entities to pay 
     honoraria and incidental expenses for a usual academic 
     activity or activities to an alien admitted under section 
     101(a)(15)(B), so long as the alien has not received such 
     payment or expenses from more than 5 institutions or 
     organizations in the previous 6 month period.
                                  ____


   Proposed Administration Revisions to H.R. 3736 (the July 29, 1998 
                               Version):

       1. Require either a $500 fee for each position for which an 
     application is filed or a $1,000 fee for each nonimmigrant. 
     Fee to fund training provided under JTPA Title IV. In 
     addition, a small portion of these revenues should fund the 
     administration of the H-1B visa program, including the cost 
     of arbitration.
       2. Define H-1B-dependent employers as:
       a. For employers with fewer than 51 workers, that at least 
     20% of their workforce is H-1B; and
       b. For employers with more than 50 workers, that at least 
     10% of their workforce is H-1B.
       3. The recruitment and no lay-off attestations apply to: 
     (1) H-1B dependent employers; and (2) any employer who, 
     within the previous 5 years, has been found to have willfully 
     violated its obligations under this law.
       4. H-1B dependent employers attest they will not place an 
     H-1B worker with another employer, under certain employment 
     circumstances, where the other employer has displaced or 
     intends to displace a U.S. worker (as defined in paragraph 
     (4)) during the period beginning 90 days before and ending 90 
     days after the date the placement would begin.
       5. DOL would have the authority to investigate compliance 
     either: (1) pursuant to a complaint by an aggrieved party; or 
     (2) based on other credible evidence indicating possible 
     violations.
       6. Establish an arbitration process for disputes involving 
     the laying-off of any U.S. worker who has replaced by an H-1B 
     worker, even of a non-H-1B dependent employer. This 
     arbitration process would be largely similar to that laid out 
     in H.R. 3736 except that it would be administered by the 
     Secretary of Labor. The arbitrator must base his or her 
     decision on a ``preponderance of the evidence.''
       7. Reference in the bill to ``administrative remedies'' 
     includes the authority to require back pay, the hiring of an 
     individual, or reinstatement.
       8. There must be appropriate sanctions for violations of 
     ``whistleblower'' protections.
       9. Close loopholes in the attestations:
       a. Strike the provision that ``[n]othing in the 
     [recruitment attestation] shall be construed to prohibit an 
     employer from using selection standards normal or customary 
     to the type of job involved.''
       b. Clarify that job contractors can be sanctioned for 
     placing an H-1B worker with an employer who subsequently lays 
     off a U.S. worker within the 90 days following placement.
       c. Do not exempt H-1B workers with at least a master's 
     degree or the equivalent from calculations of the total 
     number of H-1B employees.
       d. Define lay-off based on termination for ``cause or 
     voluntary termination,'' but exclude cases where there has 
     been an offer of continuing employment.

[[Page S12757]]

       10. Consolidate the LCA approval and petition processes 
     within DOL, rather than within INS.
       11. Broaden the definition of U.S. workers to include 
     aliens authorized to be employed by this act or by the 
     Attorney General.
       12. Include a provision that prohibits unconscionable 
     contracts.
       13. Include a ``no benching'' requirement that an H-1B 
     nonimmigrant in ``non-productive status'' for reasons such as 
     training, lack of license, lack of assigned work, or other 
     such reason (not including when the employee is unavailable 
     for work) be paid for a 40 hour week or a prorated portion of 
     a 40 hour week during such time.
       14. Increase the annual cap on H-1B visas to 95,000 in FY 
     1998, 105,000 in FY 1999, and 115,000 in FY 2000. After FY 
     2000, the visa cap shall return to 65,000.
       15. Eliminate the 7500 cap on the number of non-physician 
     health care workers admitted under the H-1B program to make 
     the bill consistent with our obligations under the GATS 
     agreement.
                                  ____


               Administration Package--September 14, 1998

       1. Require either a $500 fee for each position for which an 
     application is filed or a $1,000 fee for each nonimmigrant. 
     Fee to fund training provided under JTPA Title IV. In 
     addition, a small portion of these revenues should fund the 
     administration of the H-1B visa program, including the cost 
     of arbitration.
       2. Define H-1B-dependent employers as:
       a. For employers with fewer than 51 workers, that at least 
     20% of their workforce is H-1B; and
       b. For employers with more than 50 workers, that at least 
     10% of their workforce is H-1B.
       3. The recruitment and no lay-off attestations apply to: 
     (1) H-1B dependent employers; and (2) any employer who, 
     within the previous 5 years, has been found to have willfully 
     violated its obligations under this law.
       4. H-1B dependent employers attest they will not place an 
     H-1B worker with another employer, under certain employment 
     circumstances, where the other employer has displaced or 
     intends to displace a U.S. worker (as defined in paragraph 
     (4)) during the period beginning 90 days before and ending 90 
     days after the date the placement would begin.
       5. DOL would have the authority to investigate compliance 
     either: (1) pursuant to a complaint by an aggrieved party; or 
     (2) based on other credible evidence indicating possible 
     violations.

                           *   *   *   *   *

       8. There must be appropriate sanctions for violations of 
     ``whistleblower'' protections.
       9. Close loopholes in the attestations:
       a. Strike the provision that ``[n]othing in the 
     [recruitment attestation] shall be construed to prohibit an 
     employer from using selection standards normal or customary 
     to the type of job involved.''
       b. Clarity that job contractors can be sanctioned for 
     placing an H-1B worker with an employer who subsequently lays 
     off a U.S. worker within the 90 days following placement.
       c. Do not exempt H-1B workers with at least a master's 
     degree or the equivalent from calculations of the total 
     number of H-1B employees.
       d. Define lay-off based on termination for ``cause or 
     voluntary termination,'' but exclude cases where there has 
     been an offer of continuing employment.
       10. Consolidate the LCA approval and petition processes 
     within DOL, rather than within INS.
       11. Broaden the definition of U.S. workers to include 
     aliens authorized to be employed by this act or by the 
     Attorney General.
       12. Include a provision that prohibits unconscionable 
     contracts.
       13. Include a ``no benching'' requirement that an H-1B 
     nonimmigrant in ``non-productive status'' for reasons such as 
     training, lack of license, lack of assigned work, or other 
     such reason (not including when the employee is unavailable 
     for work) be paid for a 40 hour week or a prorated portion of 
     a 40 hour week during such time.
       14. Increase the annual cap on H-1B visas to 95,000 in FY 
     1998, 105,000 in FY 1999, and 115,000 in FY 2000. After FY 
     2000, the visa cap shall return to 65,000.
       15. Eliminate the 7500 cap on the number of non-physician 
     health care workers admitted under the H-1B program to make 
     the bill consistent with our obligations under the GATS 
     agreement.

                           *   *   *   *   *

                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, October 16, 1998.
     Hon. Doris Meissner,
     Commissioner, Immigration
     and Naturalization Service,
     Washington, DC.
       Dear Commissioner Meissner: As I am sure you know, 
     legislation raising the H-1B cap has been included in the 
     Omnibus Appropriations bill. The final version is the result 
     of hard work by all involved, including all of those who 
     negotiated this compromise on behalf of the Administration.
       There is one point on which I thought it would be useful to 
     have a clear record of our shared understanding. The 
     legislation creates a new $500 filing fee for most visa 
     petitions, which the Attorney General is tasked with 
     collecting, and which takes effect on December 1 of this 
     year. I believe it is everyone's understanding that INS will 
     be charged with devising the system for collecting this fee.
       The point I wanted to confirm is that I also believe that 
     it is everyone's understanding that if, as a result of 
     unforeseen circumstances, it does not prove possible to have 
     a system up and running by that time, our shared 
     understanding is that the language in the bill concerning the 
     fee will not result in a cessation of accepting, processing, 
     or approving petitions on that account. Rather, I believe it 
     is everyone's view that petitions should be continued to be 
     accepted, processed, and approved in the interim, while INS 
     continues to move as expeditiously as possible to finalize 
     putting the fee-collection system in place.
       Thank you for your attention to this matter.
           Sincerely,
     Spencer Abraham.
                                  ____

         U.S. Department of Justice, Immigration and 
           Naturalization Service,
                                 Washington, DC, October 29, 1998.
     Hon. Spencer Abraham,
     Chairman, Subcommittee on Immigration,
     Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Thank you for your October 16 letter 
     concerning the implementation of the H-1B program. The 
     Immigration and Naturalization Service (INS) has been working 
     with your staff to identify and to address the management and 
     administrative challenges associated with the proposed H-1B 
     legislation that is now included in the Omnibus 
     Appropriations Bill. These challenges include two sources of 
     additional workload, those emanating from new requirements 
     contained within the legislation, and those related to the 
     increased volume of cases that must be processed.
       The INS has already initiated efforts to meet the 
     challenges posed for us, and fully expects to be able to 
     implement the new fee provision proposed in the H-1B 
     legislation by December 1. However, let me assure you that 
     the INS will continue adjudicating H-1B applications, even if 
     unforeseen circumstances cause a delay in establishing final 
     procedures for fee collection and deposit.
       If I can be of further assistance, please do not hesitate 
     to contact me.
           Sincerely,
                                                   Doris Meissner,
                                                     Commissioner.


                          district of columbia

  Mr. BROWNBACK. Mr. President, I want to congratulate the bill 
managers for their hard work to reach an agreement on the bill before 
us today. I especially want to thank them for including the District of 
Columbia Adoption Improvement Act of 1998 in the omnibus appropriations 
bill.
  As chairman of the Senate Oversight Subcommittee on Government 
Management, Restructuring, and the District of Columbia, improving 
adoption for foster care in the District is one of my highest 
priorities. For the past year, I, along with Senators DeWine, Grassley, 
Craig, and Landrieu, have been looking for ways to make it easier for 
children in the Nation's Capital to find an adoptive family.
  Earlier this year, we hosted an Adoption Fair on Capitol Hill in 
which resulted in the adoption of five children to two families. We 
also held a hearing in the subcommittee to explore a solution that 
would shorten the time it takes for children in the District to be 
adopted.
  Gordon Gosselink, age 13, testified before the subcommittee at this 
hearing about how he entered the District's foster care system at the 
age of two. For the next 10 years, he lived in several foster care 
homes and even endured physical abuse until he was finally adopted at 
the age of 13 by Robert and Mary Beth Gosselink. He said:

       Last year, I met Rob and Mary Beth Gosselink at a Christmas 
     party. When my social worker told me that two people were 
     hoping to adopt me, I was really excited. I knew that this 
     was the one. I moved [in] with Rob and Mary Beth last year at 
     Easter time, and now I am part of the Gosselink Family. 
     Things are really great now. I like my neighborhood and I am 
     doing well in school. Best of all, I am with a family who 
     loves me forever. My parents now are adopting another boy 
     named Ricardo who is 11 years old. I am looking forward to 
     having a new brother. I know there are a lot of kids who are 
     still waiting for a home. I hope they find homes, too, like 
     me.

  Some children are not as lucky as Gordon. Currently, there are 994 
children in the District with the goal of adoption but only 50 percent 
have been referred to the District's adoption branch. Even worse, many 
children in the District grow up moving from foster care home to foster 
care home without finding an adoptive family by the age of 18. The most 
recent statistics indicate that 67 percent of the children who left the 
foster care system,

[[Page S12758]]

left because they turned 18 years old. In other words, one of the only 
ways out of the system, is to grow-up to adulthood within the system. 
Once these children turn 18, they are released to the streets without a 
family or a home.
  Allowing just one child to grow up without the love, attention, and 
commitment of a family is a tragedy. Allowing hundreds to languish in 
foster care is a disgrace.
  The District Child and Family Services Agency has been under the 
leadership of Ernestine Jones, the Federal court appointed receiver for 
nearly one year now. I am hopeful that reforming the system will remain 
a priority and these discouraging realities will no longer haunt the 
children who need the system most.
  We must also recognize foster care and adoptive parents for their 
contribution and their example of taking in these children when they 
need them most. As many of the Senators, who have adopted children, 
know, we need to make it easier, not more difficult, for parents to 
adopt.
  I believe this can be done and systemic improvements can be made with 
positive results--as seen in my home state of Kansas. The Kansas reform 
model of the Child and Welfare Services Agency has shown some immediate 
signs of success. Within one year of implementing these reforms, Kansas 
increased the number of children placed in adoptive homes from 25 
percent to 50 percent. Prior to these reforms, the average stay for a 
child in the Kansas foster care system was two years. Now, the average 
stay in 13 months.
  Using the Kansas model, we drafted the D.C. adoption reform language 
and came to a bipartisan agreement which included the Federal court 
appointed receiver and the Federal court appointed monitor. I am 
pleased that this compromise language is included in the omnibus 
appropriations bill. First, the bill would require the D.C. Child and 
Family Services Agency (CFSA) to maintain an accurate database tracking 
all children found by the Family Division of the District of Columbia 
Superior Court to be abused or neglected and who is in the custody of 
the District of Columbia--including any child with the goal of adoption 
or who is legally free for adoption. Unfortunately, this basic step has 
been neglected in the past in CFSA. To meet the immediate demand of 
placing children in adoptive homes, the bill would also require CFSA to 
contract out some of its adoption functions which may include 
recruitment, homestudy, and placement services. Like the Kansas model, 
these contracts would be required to be performance-based contracts. 
Contractors would be compensated once specific goals, such as an 
adoption placement or finalization, are achieved. Finally, CFSA and 
contractors would be required to work together to identify and lift any 
barriers to timely adoptions.
  I want to stress that in the end, we are talking about individual 
children who are in search of a permanent and secure home. Any 
improvement in the system translates into bringing each child closer to 
the fundamental need of having a loving, adoptive family.


THE AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT INCLUDED IN 
                          DIVISION C, TITLE IV

  Mr. LIEBERMAN. Mr. President, I speak today in support of the 
American Competitiveness and Workforce Improvement Act, which is 
included in the Conference Report on H.R. 4328, the Omnibus 
Appropriations Act, under Division C, Title IV. The House passed this 
Act as H.R. 3736 on September 24. The Senate had passed the companion 
bill, S. 1723, on May 18. I cosponsored the Senate bill because I 
believe strongly that the U.S. Government's job is to make sure that 
U.S. industry has adequate access to the resources necessary to grow 
their business. Right now we have the lowest unemployment rate in 28 
years. The high-tech sector, which has been the engine of growth in our 
economy--creating the most jobs--cannot find enough skilled workers. If 
U.S. industry needs more skilled workers than the U.S. labor force can 
provide, as the Department of Commerce has documented, then we must 
allow them to hire foreign skilled workers, and, as is more often the 
case, allow them to hire foreign graduate students educated here in the 
United States. These foreign workers create wealth and more jobs in 
this country. If we block these visas the research will go abroad.
  The Semiconductor Research Corporation, founded by the U.S. 
semiconductor industry, supports approximately 800 graduate students 
each year with merit-based scholarships. Some of the students receiving 
grants are foreigners studying here in the United States. They told me 
that this year, for the first time, they have been unable to hire all 
of the graduate students whose research they funded, even though the 
students wished to remain in the United States, because they cannot get 
H-1B visas.
  When I cosponsored S. 1723 in May, I believed it was a good bill 
because it not only temporarily increased the number of visas available 
for skilled workers, but it also set up education and training programs 
for Americans so that more U.S. workers will soon be eligible for these 
high-paying jobs in the high-tech sector. I am delighted to say that I 
believe the bill that emerged from the long and detailed negotiation 
between Senator Abraham and the White House is now even better 
legislation. The American Competitiveness and Workforce Improvement Act 
increases the number of visas available for the next three years, 
includes funding to decrease processing time for visa applications, and 
funds education and training programs to increase the pool of skilled 
workers in the United States. For the benefit of workers, it includes 
substantial protections for U.S. workers, increases enforcement 
authority for the Department of Labor to protect workers rights, and 
creates additional protections for H1-B employees. These new 
protections will help eliminate real and/or perceived hiring practices 
that came under criticism and made this such a controversial visa 
program. Removing the opportunity for abuse of the program makes its a 
stronger program and broadens its base of support. This act is in the 
best interests of both U.S. and foreign workers and U.S. business.
  The funding that is included in this act is vitally important. Too 
often, Congress passes legislation with the result that executive 
branch agencies or States are expected to provide more services and 
programs with less money. This act funds each of the programs it 
creates and the increased duties it requires of government agencies 
with a fee on each visa. It funds K-12 science programs. It funds 
scholarships in the math, science and engineering fields. And it funds 
training in high-tech skills.
  I would like to speak in particular about the training program 
contained in the American Competitiveness and Workforce Improvement 
Act, Section 414 (c). As the chief sponsor of this provision, I want in 
these remarks to particularly address the intent and meaning of the 
provision. Section 414 (c) directs the Secretary of Labor to establish 
demonstration projects to provide technical skills training for 
workers. What makes this program unique is not just that it is targeted 
at technical skills, but that it will be open to both employed and 
unemployed workers.
  Most Department of Labor training programs are solely for unemployed, 
displaced or disadvantaged workers. But in today's market, technology 
changes so quickly that no longer can people be trained in their 
twenties and expect to use those same skills throughout their career. 
American workers used to have one job for life. Now the average 
American will have five to ten jobs in a lifetime. Employees need to 
update their skills continually to remain competitive. Realistically, 
we must allow Department of Labor training programs to include workers 
who have jobs now, and want to upgrade and update their skills so they 
can qualify for the changing needs of industry, instead of waiting 
until they lose their job or become dislocated workers from a declining 
industry.
  The United States is in the enviable situation at this time of having 
under 5% unemployment. The high-tech industry tells us it has as many 
as 190,000 unfilled jobs. This does not necessarily mean that we do not 
have the people to fill those jobs; it means we don't have the people 
who have the skills to fill

[[Page S12759]]

those jobs. Nearly seven out of ten employers say that the high school 
graduates they see are not yet ready to succeed in the workplace.
  The jobs in the high-tech sector pay more than other jobs. The 
average wage in the high-tech sector pays 73% more than the average 
wage in the private sector. The average high-tech manufacturing wage is 
32% higher than the U.S. manufacturing average wage. We need to help 
our citizens get the training they need to get these higher paying 
jobs.
  The reality is that we have a global economy and there is, more and 
more, a global workforce. If companies cannot find skilled workers in 
the United States, they will find them in another country. This 
training program will help U.S. workers get the skills they need to 
stay competitive.
  I want to explain my intent for the program established under Section 
414 (c). I intend this program to be used for innovative approaches to 
solving our labor skills shortage; specifically, consortia and 
community-based programs. I intend the program to be used as a catalyst 
to bring small and medium sized businesses together to set up 
cooperative programs of skills training. I believe the best results can 
be gained from industry-driven programs. To have industry involved in 
and leading the skills training will ensure that workers are being 
trained for jobs that actually exist.
  Ninety-nine percent of the 23 million businesses in the United States 
are small businesses. But, small businesses often do not have the 
resources to operate training programs by themselves. By joining 
together in consortia of other small and medium sized businesses with 
similar labor needs, with the Local Workforce Investment Boards 
established by the Workforce Investment Partnership Act signed into law 
this year, with community colleges, or labor organizations, or with 
State or local governments, small and medium sized businesses can 
participate in training courses that will increase the labor pool of 
skilled workers needed in their region.
  Companies, however, do not normally cooperate in training workers. 
That is why the government is needed to provide the catalyst to bring 
companies together to cooperate on training. It is expected that the 
fee from the visas will generate approximately $50 million annually for 
the training program. It is my hope that the Secretary of Labor will 
consider, as she establishes these programs, requiring matching funds 
from the consortia. Nothing in this act precludes such matching funds. 
Matching funds will help ensure that the companies take an active role 
in the training program. The Secretary of Labor has the discretion to 
undertake this implementation approach. Of course, available federal 
funds are meant only to start the process--federal funding would end 
over time after which the consortia would continue the cooperative 
training programs alone.
  Mr. President, let me give some examples of the type of program I am 
discussing. In the last few years, a small number of regional and 
industry-based training alliances in the United States have emerged, 
usually in partnership with state and local governments and technical 
colleges, that exemplify the type of program on which this provision in 
the manager's amendment is modeled. In Rhode Island, with help from the 
state's Human Resource Investment Council, regional plastics firms 
developed a skills alliance which then worked with a local community 
college to create a polymer training laboratory linked to an 
apprenticeship program that guarantees jobs for graduates. The 
Wisconsin Regional Training Partnership, a consortium of metal-working 
firms in conjunction with the AFL-CIO, refitted an abandoned mill with 
state-of-the-art manufacturing equipment to teach workers essential 
metal-working skills. In Washington, DC, telecommunications firms 
donated computers and helped set up a program to train public high 
school students to be computer network administrators. They then hired 
graduates of the program at entry-level salaries of $25,000-$30,000.
  Without some kind of support to create alliances, such as created by 
the new provision in this act, small and medium sized firms just don't 
have the time or resources to collaborate on training. In fact, almost 
all the existing regional skills alliances report that they would not 
have been able to get off the ground without an independent staff 
entity, such as a college or labor organization, to operate the 
alliance. Widespread and timely deployment of these kinds of 
partnerships is simply not likely to happen without the incentives 
established by a federal initiative, which is created by this act. The 
training provision in the American Competitiveness and Workforce 
Improvement Act can help create successful new training models and 
templates that others can replicate across the nation.
  I want to thank Senator Abraham and Lee Liberman Otis and Stuart 
Anderson of his staff who worked tirelessly to ensure that the American 
Competitiveness and Workforce Improvement Act would pass the 105th 
Congress. I also want to thank Laureen Daly of my staff for all her 
dedicated efforts on this essential legislation.
  We have accomplished something important for our workforce needs and 
for training in this legislation.


             certification regarding certain imf assistance

  Mr. CRAIG. Mr. President, I rise to commend Chairman McConnell for 
the work he has done on the foreign operations portion of the Omnibus 
Appropriations bill.
  The fiscal year 1999 foreign operations appropriations package is 
very different in size and character from the wasteful ones passed just 
a few years ago by liberal Congresses. It represents a sea change in 
the way Congress does business and a major victory for conservative, 
commonsense principles.
  The U.S. Federal budget is now balanced--for the first time since 
1969. This is the most positive economic policy development in the 
world today. There is room within that balanced budget for a limited, 
responsible program of foreign operations.
  The chairman's work in this bill advances U.S. leadership and 
protects our national security, our economic interests, and American 
jobs, in a rapidly changing world.
  For example, the way this bill deals with the International Monetary 
Fund is not the same old way of doing business.
  This bill imposes new, tough standards of accountability and 
transparency on the IMF. If American taxpayers are going to invest in 
the IMF, hoping it will produce a more stable world economy, they 
should be able to see where their money is going.
  I know that has been an important priority for Chairman McConnell, as 
it has been for me.
  I want to thank the chairman in particular for his support and 
assistance in making sure the final version of this bill included a 
provision we have worked on since the beginning of this year.
  This provision covers autos, textiles and apparel, steel, and 
shipbuilding, as well as semiconductors. It is of extreme importance to 
the thousands of workers at Micron, an Idaho company that manufactures 
computer chips and is a world leader in semiconductor technology. This 
provision will safeguard many American jobs and is the result of 
bipartisan efforts.
  This provision directs the Secretary of the Treasury to instruct the 
U.S. Executive Director at the IMF to exert the influence of the United 
States to oppose further disbursement of funds to the Republic of Korea 
unless the Secretary has given a certification that IMF funds are not 
being used to subsidize industries with a history of committing unfair 
trade practices against American companies and workers.
  It is my understanding that the use of the term, ``exert the 
influence of the United States'' places a very high obligation on our 
Secretary of the Treasury and Executive Director to use all the means 
necessary to oppose disbursement of funds unless such certification has 
been given.
  This effort needs to be persistent and comprehensive, at all levels, 
in order to achieve the desired result. It includes the use of the 
voice and vote of the United States at the IMF. This language also 
constitutes a commitment by the Secretary of the Treasury to the 
Congress to see that the influence of the United States is exerted in 
all respects.
  I've spoken with the Secretary about this matter. It's characteristic 
of administration agencies and officials to

[[Page S12760]]

prefer having broad latitude and not being given such specific 
direction in legislation. However, I believe the substance of this 
provision is consistent with the Secretary's own intentions. The final 
language is the product of negotiation with the Administration.
  Mr. McConnell. I would concur with the Senator's interpretation of 
the effect of this provision. This provision creates an ongoing and 
overarching commitment. Accompanying report language should reassure 
the people of South Korea that our friendship for them remains strong, 
and that we are simply seeking to promote honest, open markets and fair 
competition.
  Mr. KYL. Mr. President, while many parts of this bill concern me, the 
part that I am very proud of is a provision known as the Drug-Free 
Workplace Act of 1998. It has been my pleasure to have worked with 
Senator Coverdell and I commend him for guiding the drug-free workplace 
bill through the Small Business Committee with a unanimous bipartisan 
vote. I would also like to thank Representatives Portman, Bishop, and 
Souder for their work in passing this important anti-drug legislation 
out of the House.
  The Drug-Free Workplace Act of 1998 is an excellent example of how 
the federal government can work to encourage drug-free workplaces 
without placing heavy-handed mandates on businesses. It fosters 
partnerships between small businesses and organizations which have at 
least two years experience in carrying out drug-free workplace 
programs. It also will educate and encourage small businesses about the 
advantages of implementing drug-free workplace programs.
  Small businesses often feel they lack the money or the expertise to 
implement drug testing programs. That is why the drug-free workplace 
bill performs such a worthwhile function. Many small firms would like 
to start drug testing programs but don't have the ability to overcome 
the start up costs. This anti-drug measure provides resources to assist 
and educate employers who want the help in implementing drug-free 
workplace programs.
  As we all know, the American workforce is the main catalyst behind 
the tremendous economy that we are enjoying today. It is absolutely 
integral to a country's economic well being that it have a competent, 
able workforce. Our ability to maintain the high achievements of this 
workforce hinges largely on our ability to keep drugs out of the 
workplace.
  Drug use can take a tremendous toll. For example, 70% of drug users 
are employed. Employees who use drugs: Have greater absenteeism; have 
increased use of health services and insurance benefits; have increased 
risk of accidents; and have decreased productivity.
  The costs of drug use are not only confined to the user, just 
consider these disturbing statistics: Nearly half of all industrial 
accidents in the United States are related to drugs or alcohol; and 
drug and alcohol abusers file five times as many workman's compensation 
claims as non-abusers, and require 300 percent greater medical 
benefits.
  Businesses need help dealing with the problem of drug use--especially 
small businesses. Thomas Donohue of the U.S. Chamber of Commerce 
testified before the House Subcommittee on Empowerment that a large 
impediment in the implementation of drug programs is the perceived 
costs and problems with the actual initiation of the programs.
  The Drug-Free Workplace Act is fair to everyone. It's fair for the 
workers who are put at risk by their colleagues' drug abuse. It's fair 
to businesses, because it gives them the tools they need, but only if 
they want them. it's also fair to society, which ultimately foots the 
costly bill that drug abuse brings.
  Mr. KERRY. Mr. President, I would ask my distinguished colleague and 
Chairman of the Committee on Finance for his attention with regard to a 
matter of some concern to the Savings Bank Life Insurance (SBLI) 
organizations in Massachusetts, New York, and Connecticut, as well as 
their operations in New Hampshire and Rhode Island.
  As the Chairman knows, we had hoped this year, after a long 
consideration of the matter, to act on a proposal that would clarify 
the tax consequences of a state-mandated consolidation of an SBLI 
organization in which required payments to policyholders are made over 
a period of years. Under the current Internal Revenue Service (IRS) 
interpretation, such payments would be non-deductible redemptions of 
equity. After considerable effort, we believe we have succeeded in 
demonstrating that such an interpretation is incorrect. Of necessity, 
however, it appears that a statutory clarification will be required, 
and, unfortunately, it does not appear possible this year to consider 
this kind of matter in a tax measure.
  SBLI entities and policyholders retain unique, long-recognized 
characteristics regarding voting rights and rights to surplus which set 
them apart from other insurance companies and policyholders and which 
form the basis for the needed clarification. The provision we had hoped 
would be considered this year would clarify that the Internal Revenue 
Code should treat additional policyholder dividends as deductible when 
mandated by state law.
  While only the Massachusetts SBLI is immediately affected, the sister 
entities in New York and Connecticut could be adversely affected if the 
appropriate clarification is not made. Unfortunately, if we are unable 
to accomplish our objective soon, SBLI and its policyholders throughout 
New York and the New England region will be subjected to a tax inequity 
which will be unnecessarily passed on to the consumer. It is important 
to note that the Treasury Department again this year reiterated that it 
does not oppose this clarification.
  I would observe that several of my colleagues including Senators 
Kennedy, Moynihan, D'Amato, Dodd, Lieberman, Gregg, Smith, Chafee, and 
Reed have indicated their support in correspondence with our 
distinguished Finance Committee Chairman.
  I respectfully ask the Finance Committee to consider this important 
measure in the context of comprehensive tax legislation next year.
  Mr. ROTH. I thank my colleague from Massachusetts. I am well aware of 
your interest in this amendment, as well as the continued interest of 
the Senators from New York, New Hampshire, Connecticut and Rhode 
Island. The Senator raises important issues with regard to the 
uniqueness of such state-mandated payments. Unfortunately, as you know, 
we were not able to take up such issues during the 105th Congress. It 
would be my intention, though, to address this and other tax matters at 
the next available opportunity.
  Mr. CRAIG. Mr. President, I rise to commend the leadership and the 
members of the Appropriations Committee for their hard work on this 
bill. They had to make hard decisions about scarce resources and have 
labored to do so fairly. I also appreciate the efforts to make sure the 
taxpayers hard-earned dollars are spent effectively and efficiently. 
While there are several provisions within this bill which I 
wholeheartedly support, I do not agree with every provision of this 
bill.
  As you all may be aware, section 315 of the Interior portion of the 
Omnibus Consolidated Rescissions and Appropriations Act of 1996 
authorized the Recreational Fee Demonstration program. The Recreational 
Fee Demonstration Program is currently scheduled to expire on September 
30, 1999. Language from the House Fiscal Year 1999 Interior and Related 
Agencies Appropriations Act to extend this demonstration program an 
additional two years (to the year 2001) has been included in the FY1999 
Omnibus Consolidated Appropriations Act. I worked to keep similar 
language out of the Senate Interior appropriations bill and was 
disappointed to see the House language prevail in the final omnibus 
bill.
  The issue here is that the House action was premature. I am not 
totally opposed to a fee demonstration program. In fact, when Congress 
authorized the Recreation Fee Demonstration Program in 1996, I voted in 
support of this legislation and have been a proponent of user-based 
fees. I believe that the program, in concept, has merits. I envisioned 
this demonstration program as having the potential to improve the 
condition and recreation services of public lands by making more 
financial resources available to areas that are used the most heavily, 
based on a modest fee allocated to those directly benefitting from the 
enjoyment of those lands. Recreation is important in

[[Page S12761]]

Idaho. Because 63 percent of our state is managed by the federal 
government, a majority of this recreation must take place on the public 
lands. In some of our premier areas the resource is being loved to 
death. Appropriated budgets will not see future large increases in 
recreation programs even though these areas will undoubtedly continue 
to be a popular local, and tourist, attraction.
  As a member of the Senate Committee on Energy and Natural Resources, 
the authorizing committee with legislative jurisdiction over the fee 
demonstration program, as well as the chairman of the subcommittee of 
jurisdiction, I am committed to thorough oversight of this program with 
an eye toward consideration of any appropriate legislation to improve, 
continue, or terminate it depending on the information we gather and 
the experiences of the agencies.
  On June 11, 1998, the Energy and Natural Resources Committee held an 
oversight hearing on the program's first full year of implementation. 
Valuable information was gathered from the agencies administering the 
programs and the users of the resource. We will continue to monitor 
this program during the next two years. A thorough review of the 
program, with answers to some serious questions, must be completed 
before extending the recreation fee demonstration program. Then we can 
accurately assess the merits and problems and decide how to continue. 
However, considering this issue settled at this early date will only 
lessen the authorizing committee's responsibility to evaluate the 
program and make any improvements that are warranted. We should act 
after, not before, this demonstration program has had a chance to 
demonstrate.
  While I voted in favor of this bill for continuing necessary 
programs, some provisions, such as a premature extension of the 
recreation demonstration program, are not something I agree with or 
support. If more time is needed to test the fee demonstration project, 
it would have been more appropriate to extend the program nearer the 
end of three-year period rather than after only the first full year of 
the program. However, I will continue aggressive oversight of this 
program in an effort to improve it and possibly end it in areas where 
it clearly is not working.
  Mr. BIDEN. Mr. President, included within this omnibus appropriations 
bill are two important pieces of legislation related to foreign policy. 
The first, produced on a bipartisan basis in the Foreign Relations 
Committee, is the ``Foreign Affairs Reform and Restructuring Act,'' 
which involves the institutional structure of, and funding for, the 
foreign affairs agencies of the U.S. government. The second bill is 
legislation necessary to implement the Chemical Weapons Convention, a 
treaty approved by the Senate in April 1997.
  The Foreign Affairs Reform and Restructuring Act is not perfect, and 
unfortunately it differs in one critical respect from the original bill 
approved by the Senate 16 months ago. I say ``unfortunately'' because 
this bill does not contain a single dime for our UN arrears. Last year, 
Chairman Helms and I agreed on a proposal to authorize the payment of 
$926 million in arrears to the United Nations, conditioned on a series 
of reforms in that body. The Senate approved the Helms-Biden 
legislation twice in 1997, first by a vote of 90-5 in June, then by a 
voice vote in November.
  The obstacle to making good on our commitments to the United Nations? 
A small minority of members in the other body, who have insisted that 
our arrears payments to the United Nations should be held hostage to an 
unrelated issue regarding family planning. The specific provision--the 
so-called Mexico City amendment --would require the withholding of 
funds from foreign, non-governmental organizations which use their own 
funds to perform abortions or discuss the issue with foreign 
governments. The President has indicated on several occasions that he 
will veto any bill presented to him that contains the Mexico City 
language. Nonetheless, a handful of obstructionists in the other body 
march steadily ahead, determined to undermine U.S. foreign policy 
interests in order to advance their unrelated cause.
  I deeply regret such irresponsible action by the other body, but it 
is emblematic of the reckless disregard that many in that body have for 
the important responsibilities the United States has as the world s 
leading superpower.
  In the past few weeks, the Chairman and I attempted to include a $200 
million down payment on our UN arrears, which would have been linked to 
certain of the conditions in the Helms-Biden legislation. But even this 
limited payment of our arrears proved to be too much for the members in 
the other body who have taken American foreign policy hostage.
  It is essential that we find a way to repay our arrears next year. 
For better or for worse, the United Nations is a valuable means to 
advance our foreign policy and security interests around the world, by 
providing a forum for improved cooperation with other states and by 
allowing us, in some instances, to share the burdens and costs of world 
leadership.
  Our status as a deadbeat is unquestionably hurting our interests, not 
only at the UN but with our leading allies--many of whom are owed money 
by the UN for peacekeeping operations they undertook, but for which we 
have not yet paid. The cost to our interests cannot be measured with 
precision, but the resentment against the United States for its failure 
to pay its back dues is having a corrosive effect on our agenda at the 
UN and elsewhere. It is bordering on scandalous that a big nation like 
ours, blessed with abundant wealth, has failed to pay its bills on 
time.
  Next year, the President is expected to nominate Richard Holbrooke to 
be our representative to the United Nations. Ambassador Holbrooke's 
nomination offers us a chance for a fresh start in the negotiations on 
UN arrears and reforms. Mr. Holbrooke is one of the most creative 
diplomats and negotiators of our time, and I am confident he will bring 
fresh insights and endless energy to this important issue. I am also 
hopeful that the Chairman remains committed to trying to move 
legislation in the next Congress to repay the full amount agreed to 
last year in our negotiations.
  Let me turn now to the provisions of the Foreign Affairs Reform and 
Restructuring Act that are contained in the omnibus bill. Much of the 
legislative history of bill is set forth in the conference report to 
H.R. 1757, which was approved by both houses last spring. But I would 
like to take a few minutes to summarize the bill and highlight several 
issues.
  First, the legislation before us establishes a framework for the 
reorganization of the U.S. foreign policy agencies which is consistent 
with the plan announced by the President in April 1997. After several 
years of debate, last year the President agreed to the abolishment of 
two foreign affairs agencies, and their merger into the State 
Department. The first agency to be abolished will be the Arms Control 
and Disarmament Agency (ACDA), which will be merged into the State 
Department no later than April 1, 1999; the U.S. Information Agency 
(USIA) will follow no later than October 1, 1999. As with the President 
s plan, the Agency for International Development (AID) will remain a 
separate agency, but it will be placed under the direct authority of 
the Secretary of State. And, consistent with the President s proposal 
to seek improved coordination between the regional bureaus in the State 
Department and AID, the Secretary of State will have the authority to 
provide overall coordination of assistance policy.
  The integration of ACDA and USIA into the State Department is not 
intended to signal the demise of the important functions now performed 
by these agencies. On the contrary, their merger into the Department is 
designed to ensure that the arms control and public diplomacy functions 
are key elements of American diplomacy.
  In that regard, the bill establishes in law two new positions in the 
State Department, an Under Secretary of State for Arms Control and 
International Security, and an Under Secretary of State for Public 
Diplomacy. These senior officers will have primary responsibility for 
assisting the Secretary and Deputy Secretary of State in the formation 
and implementation of U.S. policy on these matters.
  It is expected that the officials who will be named to these 
positions will be submitted to the Senate for advice and consent. The 
conference committee on H.R. 1757 rejected a proposal by the Executive 
Branch to seek authority to

[[Page S12762]]

place officials who are now in analogous positions in these newly-
created positions.
  One issue of particular concern regarding ACDA in the reorganization 
is the need to maintain the highest standards of competence and 
objectivity in the analysis of compliance with arms control and non-
proliferation agreements. As the Foreign Relations Committee stated in 
its report last year, it is vital ``that the Under Secretary be able to 
call upon expert personnel in these areas who will not feel obligated 
to downplay verification or compliance issues because of any potential 
impact of such issues upon overall U.S. relations with another 
country.'' Chairman Helms and I have urged the Secretary of State to 
find a way to make the official for compliance a Senate-confirmed, 
Presidential appointee.
  The bill puts flesh on the bones of the President's plan with regard 
to international broadcasting. The President's proposal was virtually 
silent on this question, stating only that the ``distinctiveness and 
editorial integrity of the Voice of America and the broadcasting 
agencies would be preserved.'' The bill upholds and protects that 
principle by maintaining the existing government structure established 
by Congress in 1994 in consolidating all U.S. government-sponsored 
broadcasting--the Voice of America, Radio and TV Marti, Radio Free 
Europe/Radio Liberty, Radio Free Asia, and Worldnet TV--under the 
supervision of one oversight board known as the Broadcasting Board of 
Governors. Importantly, however, the Board and the broadcasters below 
them will not be merged into the State Department, where their 
journalistic integrity would be greatly at risk. Instead, the 
Broadcasting Board will be an independent federal entity within the 
Executive Branch. The Secretary of State will have a seat on the board, 
just as the Director of the USIA does now.
  Second, the bill authorizes important funding for our diplomatic 
readiness, which has been severely hampered in recent years by deep 
reductions in the foreign affairs budget. This Congress has stopped the 
hemorrhaging in the foreign affairs budget, but I believe that funding 
for international programs remains inadequate, given our 
responsibilities as a great power.
  Although the Cold War has ended, the need for American leadership in 
world affairs has not. Our diplomats represent the front line of our 
national defense; with the downsizing of the U.S. military presence 
overseas, the maintenance of a robust and effective diplomatic 
capability has become all the more important. Despite the reduction in 
our military readiness abroad, the increased importance of diplomatic 
readiness to our nation s security has not been reflected in the 
federal budget.
  Significantly, this omnibus appropriations bill contains the 
emergency funding requested by the Administration for embassy security. 
The bombings of the U.S. embassies in East Africa in August demonstrate 
that many of our missions overseas remain highly vulnerable to 
terrorist attack; it is imperative that we provide the State Department 
the resources necessary to protect our employees serving overseas. We 
should understand, however, that the urgent funding in this bill is 
just the beginning of a long-term program to enhance security at 
embassies around the globe.
  I am especially pleased that the Chemical Weapons Convention 
Implementation Act is also incorporated in the omnibus spending bill. 
The Senate passed this legislation unanimously in May of 1997, and we 
have waited since then for the leadership of the other body to accept 
that complying with our international commitments is a requirement, 
rather than a political football. The enactment of this measure will 
enable the United States to file the comprehensive data declarations 
required by the Convention, and therefore to demand that other 
countries' declarations be complete. The United States will now be able 
to accept inspections of private facilities, and therefore to request 
challenge inspections of suspected illegal facilities in foreign 
countries. The United States will finally be able also to protect 
confidential business information, acquired in declarations or on-site 
inspections, from release under the Freedom of Information Act. After 
nearly 17 months of waiting, it is about time.
  In closing, I want to pay tribute to Chairman Helms for his continued 
good faith and cooperation throughout the last two years on these and 
other issues. He has been the driving force behind the legislation to 
reorganize the foreign affairs agencies, and I congratulate him for his 
achievement. I also want to thank our colleagues in the other body, 
particularly the ranking member of the Committee on International 
Relations, Lee Hamilton, who is retiring this year after over three 
decades of noble service to his district in Indiana and to the American 
people. We wish him well as he moves on to new challenges.
  Mr. President, I want to reiterate that we are leaving important 
unfinished business--the payment of our back dues to the United 
Nations. It must be at the top of our agenda in the next Congress. I 
look forward to working with the Chairman and the Secretary of State to 
find a way to finish the job.


                      Alternative Fuel Tax Credits

  Mr. BURNS. Mr. President, I would like to clarify the intent of 
Congress regarding tax incentives for alternative fuels. These 
incentives are important tools for our nation's long-term energy 
policy.
  Starting with the energy crisis in the 1970s, Congress has acted on 
numerous occasions to provide tax credits intended to develop 
alternative fuels. Prior Congresses took these steps in recognition of 
the need to encourage the development and use of alternative fuels 
which promise that we as a nation will never be dependent on others for 
our energy resources. For example, Section 29, which expired earlier 
this year, and Section 45, which is due to expire next June, were both 
intended to encourage the development of nonconventional fuels.
  Today, our nation not only needs to continue its efforts to develop 
alternative fuel resources, but given our ever growing energy 
requirements, we must consider the environmental impact that 
conventional and nonconventional fuels have on our environment, 
particularly in light of the Clean Air Act.
  In order to maximize the most efficient use of our nation's 
resources, Congress needs to commit to the development of clean 
alternative fuels. We need also to use our nation's technologies to 
develop environmentally clean alternative liquid fuels from coal.
  In Montana, we have vast coal reserves. There are technologies that 
can upgrade the coal from these reserves and reduce current 
difficulties associated with the development of these fields. However, 
these technologies are not likely to be developed, and therefore these 
vast natural resources are not likely to be used, unless Congress 
provides incentives to develop clean alternative fuels.
  I am concerned that we have not been able to fully discuss the merits 
of such incentives in our budget debate this past month. For example, 
an extension of Section 29 was included in the Senate version of the 
tax extenders, but that provision was not included in the final 
package.
  I would urge my colleagues to bring this debate to the floor in the 
106th Congress to ensure that the issue of encouraging the development 
of clean alternative fuels is a priority in our nation's energy policy.
  Mr. LOTT. I agree with my colleague from Montana. As our nation 
continues to seek ways to improve environmental quality and to reduce 
the need for imported energy, several new technologies run the risk of 
not being developed if Congress does not act to provide incentives to 
develop clean alternative fuels.
  These technologies provide two significant benefits to our nation. 
First, the use of alternative fuels reduces our reliance on foreign 
energy sources. Second, the technologies provide cleaner results for 
our environment.
  For these reasons, I want to assure my colleague from Montana that I 
will make a priority of addressing the need for tax incentives to 
produce clean alternative fuels.
  Mr. GRASSLEY. I agree with my colleagues from Montana and Mississippi 
about this very important issue. The development and use of alternative 
fuels are important to this nation, and

[[Page S12763]]

we must encourage their use and development.
  Wind energy has long been recognized as an abundant potential source 
of electric power. A detailed analysis by the Department of Energy's 
Pacific Northwest Laboratory in 1991 estimated the energy potential of 
the U.S. wind resource at 10.8 trillion kilowatt hours annually, or 
more than three times total current U.S. electricity consumption. Wind 
energy is a clean resource that produces electricity with virtually no 
carbon dioxide emissions. There is nothing limited or controversial 
about this source of energy. Americans need only to make the necessary 
investments in order to capture it for power.
  The Production Tax Credit, section 45 of the Internal Revenue Code 
was enacted as part of the Energy Policy Act of 1992. This tax credit 
is a sound low-cost investment in an emerging sector of the energy 
industry. I introduced the first bill that contained this tax credit, 
so you can be sure that I am sincere in my belief in the need to 
develop this resource. This tax credit currently provides a 1.5 cent 
per kilowatt hour credit for energy produced from a new facility 
brought on-line after December 31, 1993 and before July 1, 1999 for the 
first ten years of the facility's existence. Last Fall, I introduced a 
bill to extend this tax credit for five years. My legislation, S. 1459, 
currently has 22 cosponsors, including half of the Finance Committee. 
The House companion legislation, introduced by Congressman Thomas, 
currently has 90 cosponsors, including over half of the Ways and Means 
Committee. These numbers are a strong testament to the importance of 
the section 45, and renewable fuels in general.
  In addition, I plan to work to expand this tax credit to allow use of 
the closed-loop biomass portion of this tax credit. Switchgrass from my 
state and other Midwestern states, eucalyptus from the South, and other 
biomass, can be grown for the exclusive purpose of producing energy. 
This is a productive use of our land, and will be an important step in 
our use and development of alternative and renewable fuels.
  I was very pleased to see that Congress expressed its understanding 
of the importance of alternative and renewable fuels by extending the 
ethanol tax credit in this year's T-2 legislation. These tax credits 
are a successful way of promoting alternative sources of energy. These 
tax credits are a cheap investment with high returns for ourselves, our 
children, our grandchildren and even their grandchildren. Congress 
needs to again pass this important legislation to ensure that these 
energy tax credits are extended into the next century.
  Mr. MURKOWSKI. I concur with my colleagues. Implementation of the 
1990 Clean Air Act amendments is creating a real need to develop clean 
alternative fuels.
  For example, of the 64 remaining U.S. coke batteries, 58 are subject 
to closure as a result of the Clean Air Act. The steel industry can 
either use limited capital to build new clean coking facilities or they 
can choose to import coke from China, which uses 50 year old highly 
pollutant technologies. Restoring the Section 29 credit to encourage 
cleaner coker technologies will greatly reduce emissions and will slow 
our increasing dependence on foreign coke, at the same time creating 
jobs in the United States in both the steel and coal mining industries.
  In addition, the United States has rich deposits of lignite and sub-
bituminous coals. There are new technologies that can upgrade these 
coals to make them burn efficiently and economically, while at the same 
time significantly reducing air pollution.
  This is proven technology, but to make the development of this 
technology throughout the nation feasible, the Congress needs to 
provide tax incentives.
  Mr. ENZI. The people of Wyoming have always had very strong ties to 
our land. That is why the words ``Livestock, Oil, Grain and Mines'' 
appear on our state seal. Those words clearly reflect the importance of 
our natural resources to the people of my state, and our commitment to 
using our abundant natural resources wisely and for the benefit of 
current and future generations of Wyomingites and the people of this 
country.
  Congress has determined the need to find newer and cleaner 
technologies. Wyoming is blessed with an abundance of clean burning 
coal reserves. It would seem to be a perfect match. We are eager to 
provide what is needed for our country's present and future fuel needs. 
But those reserves aren't likely to be developed unless we provide the 
incentives necessary to make it possible for the coal to be harvested 
in a safe and environmentally friendly manner.
  Mr. ABRAHAM. I concur with my colleagues. The development and 
production of alternative fuels provides a real opportunity for the 
country to improve the environment while ensuring a constant, 
reasonably priced fuel supply. But recent efforts to provide such 
assurances have been hampered. For example, in the Small Business Job 
Protection Act of 1996, Congress extended the placed-in-service date 
for facilities producing synthetic fuels from coal, and gas from 
biomass for eighteen months.
  However, progress in bringing certain facilities up to full 
production has been hampered by the Administration's 1997 proposal to 
shorten the placed-in-service date and because, in many cases, the 
technology used to produce the fuels is new. Such delays have created 
uncertainty regarding the facilities eligibility under the placed-in-
service requirement of Section 29
  While it is important that the Congress consider again this issue in 
the 106th Congress, I would also urge the Secretary to consider the 
facilities I mentioned qualified under Section 29 if they met the 
Service's criteria for placed-in-service by June 30, 1998 whether or 
not such facilities were consistently producing commercial quantities 
of marketable products on a daily basis.
  Mr. CONRAD. I agree with my colleagues. Through the section 29 tax 
credit for nonconventional fuels, Congress has supported the 
development of environmentally friendly fuels from domestic biomass and 
coal resources. There are lignite resources in my state that could 
compete in the energy marketplace if we can find a reasonable incentive 
for the investment in the necessary technology. As soon as possible in 
the 106th Congress, I hope we will give this crucial subject the 
attention it deserves.
  Mr. HATCH. I concur with my colleagues. This is a very important tax 
credit for alternative fuels. It is an issue of fairness, not one of 
corporate welfare.
  Earlier this year I, along with 18 of my colleagues, introduced a 
bill that would extend for eight months the placed-in-service date for 
coal and biomass facilities. The need still exists to extend this date 
and I am very disappointed that this was not included.
  Mr. BAUCUS. Mr. President, I want to join my colleagues in supporting 
tax incentives for alternative fuels. Our country has assumed a 
leadership role in the reduction of greenhouse gases because of the 
global importance of pollution reduction. As my colleagues have also 
pointed out, promotion of alternative fuels is not just an 
environmental issue, but an issue important to our domestic economy and 
independence as well. We cannot afford to slip back toward policies 
which will leave us dependent upon foreign sources of oil for our 
economic growth.
  With the huge reserves of coal and lignite in the United States and 
around the world, as well as the tremendous potential for use of 
biomass, wind energy, and other alternatives, it is particularly 
important to our economy and the world's environment that new, more 
environmentally friendly fuels are brought to market here and in 
developing nations.
  But bringing new technologies to market is financially risky. In 
particular, finding investors to take a new technology from the 
laboratory to the market is difficult because so many technical 
problems need full-scale testing and operations to resolve. Few 
investors are prepared to take on the risks associated with bringing a 
first-of-a-kind, full-sized alternative energy production facility on-
line without some level of security provided by a partnership with the 
federal government.
  Tax incentives represent our government's willingness to work with 
the private sector as a partner to bring new, clean energy technologies 
to the market. These incentives demonstrate our country's commitment to 
the future.

[[Page S12764]]

  Mr. GRAHAM. There are two principle reasons I support extension of 
Section 29 and 45. First, in a period where America is continuing to 
increase its dependence on foreign oil, we need to develop alternative 
fuel technologies to prepare for the day when foreign supply of oil is 
reduced. These tax credits have spurred the production of fuel from 
sources as diverse as biomass, coal, and wind. America will desperately 
need fuel from these domestic sources when foreign producers reduce 
imports.
  Second, the alternative fuels that earn these tax credits are clean 
fuels. For example, the capture and reuse of landfill methane prevents 
the methane from escaping into the atmosphere. I will support my 
colleagues in an effort next year to extend these provisions.
  Mr. THURMOND. I join my colleagues in support of extending the tax 
credit for Fuel Production from Nonconventional Sources. Through this 
credit, Congress has emphasized the importance of establishing 
alternative energy sources, furthering economic development, and 
protecting the environment. The alternative fuels credit strikes a 
proper balance between each of these objectives. I support efforts to 
bring this issue to a satisfactory conclusion, early in the next 
Congress.
  Mr. THOMAS. I strongly agree with my colleagues regarding the 
importance of the Section 29 tax credit. Wyoming has some of the 
nation's largest coal reserves and this tax credit gives producers an 
incentive to develop new and innovative technologies for the use of 
coal. I am disappointed that an extension of the Section 29 tax credit 
was not included in the Omnibus Appropriations package and urge my 
colleagues to make this matter a top priority during the 106th 
Congress.
  Mr. ROTH. I understand my colleagues' concerns. For some time now I 
have been studying how to provide targeted incentives to develop clean 
alternative fuels. It is essential for Congress to develop sound tax 
policy for alternative energy to help protect our environment. Several 
weeks ago, I introduced legislation to provide such incentives for 
facilities that produce energy from poultry waste. I look forward to 
working with my colleagues on these issues early in the 106th Congress.


                       Permanent Research Credit

  Mr. BINGAMAN. Mr. President, I would like to thank the distinguished 
chairman and ranking member of the Committee on Finance for their 
continuing work on the research and experimentation tax credit, which 
is extended through June of 1999 by this legislation. In my capacity as 
ranking member of the Joint Economic Committee, I have taken a strong 
personal interest in the research credit and how it can be made into an 
effective permanent incentive. It is potentially the most important 
incentive in our tax code for stimulating long-term economic growth, 
and I believe that we need to make every effort in the upcoming session 
of Congress to establish a permanent credit for research and 
development.
  In the course of these efforts, we need to keep in mind the 
substantive issues that are intrinsic to the goal, shared by many of my 
colleagues, of a permanent effective R&D tax policy. Can we make the 
credit more equitable, to give all R&D-performing firms incentives to 
increase their R&D? Can it be made more effective for the industries 
that have historically invested heavily in research and development? 
Can it be made more accessible by small businesses, which are a growing 
sector of our nation's R&D and promise to be a leading source of high-
wage job growth? And can it further encourage research partnerships--
crossing the institutional boundaries of industry, universities, and 
public-benefit consortia--that lay the groundwork for our future 
technology and medicine through long-term R&D investments?
  In the negotiations of the past few weeks, Congress came alarmingly 
close to not extending the credit at all. I am concerned that until we 
address the substantive issues outlined above, the R&D credit is likely 
to continue to teeter along in its current state of uncertainty, and 
that under its current structure it will perform less and less 
effectively, as an incentive and as an economic stimulus. I am joined 
in these concerns by economists who have studied the credit and by 
senior leaders of R&D-intensive corporations. As the distinguished 
chairman and ranking member know, I and other Senators have introduced 
legislation to address these issues in this Congress. Obviously, time 
does not permit us to address these issues at this point, but I would 
ask them whether they would be willing to have the Committee on Finance 
consider these issues in the next Congress, in preparation for further 
legislative action on the credit?
  Mr. ROTH. I welcome the suggestion made by the Senator from New 
Mexico. I believe that the issues that the raises are important ones, 
and that his suggestions for comprehensive improvements are worthy of 
further consideration by the Committee. I am aware that several of our 
other colleagues, including Senators Domenici, Hatch, and Baucus, are 
also keenly interested in the future of the credit, and I look forward 
to working with all of our colleagues who are interested in these 
issues in the next Congress.
  Mr. MOYNIHAN. I would agree with the chairman of the Committee that 
the issues raised by the Senator from New Mexico deserve further 
attention next year, and would also welcome the opportunity to work 
with him and with my other colleagues.
  Mr. BINGAMAN. I thank the chairman and ranking member.


  degradation of service at williston office national weather service

  Mr. DORGAN. I would like to inquire of the distinguished Chairman of 
the Commerce, Justice, State Appropriations Subcommittee, Mr. Gregg, as 
to the intent of language in the FY99 conference report on National 
Weather Service operations at Williston, North Dakota.
  Mr. GREGG. The conference report includes language which directs the 
Secretary of Commerce to ensure continuation of weather service 
coverage for the communities of Williston, North Dakota; Caribou, 
Maine; Erie, Pennsylvania; and Key West, Florida.
  Further, the Conference provides full funding to the NWS for 
continued, effective operations at Williston and the other Weather 
Service offices mentioned.
  Mr. DORGAN. I thank the Subcommittee Chairman for his commitment to 
this provision in the bill. The Commerce Secretary has agreed that 
closing the Williston weather station would amount to a degradation of 
weather service. It is critical, therefore, that Congress send a strong 
signal that the station at Williston be kept fully operational.
  Mr. GREGG. I will tell the Senator from North Dakota that it is the 
intent of the conferees that the National Weather Service maintain 
operations at Williston and the other sites, and further that the NWS 
take no actions which would suggest an intent to close these offices. 
Any actions taken towards closure of these offices will signal to the 
Congress that there will be a resulting degradation of service.
  Mr. DORGAN. Is it correct to say that the fact that specific funds 
are being provided to the National Weather Service to maintain 
operations at the offices which were identified in the 1995 Secretary's 
report signals that the Congress expects these offices to continue and 
that the NWS ought not to be taking any actions that would suggest that 
these offices will be closed?
  Mr. GREGG. Yes, that is correct. We believe that with respect to 
these specific offices, including Williston, North Dakota, the NWS 
modernization plan has not sufficiently demonstrated that service will 
not be degraded without these offices. The Congress does not want the 
NWS to close these offices at this time and we are providing specific 
appropriations to ensure their continued operations. I would also add 
that we expect the NWS to use these additional funds to develop the 
appropriate systems to address the unique weather coverage shortfalls 
that exist for these specific communities.
  I realize that the most difficult problem for Williston, North Dakota 
is the absence of local radar coverage at low altitudes. We expect that 
the NWS will use these funds and work cooperatively with the local 
residents in Williston to mitigate that concern.


                   registration of container chassis

  Ms. SNOWE. Mr. President, I would like to explain section 109 of 
Division C regarding the registration of container chassis. This 
section addresses the application of registration fees to trailers

[[Page S12765]]

used exclusively for the purpose of transporting ocean shipping 
containers, which the Section refers to as ``container chassis.''
  The section provides that a State, such as California, that requires 
annual registration and apportioned fees for container chassis may not 
limit the operation, or require the registration in the State, of a 
container chassis registered in another State, if the container chassis 
is operating under a trip permit issued by the non-registration State. 
Further, the non-registration State may not impose fines or penalties 
on the operation of such a container chassis for being operated in the 
non-registration State without a registration issued by that State. For 
example, the Attorney General of California or any other person in 
California, may not seek to impose fines or penalties from companies 
operating container chassis in California, when the container chassis 
are registered in another state such as Maine or Tennessee.
  Further, under this language, a State that requires annual 
registration of container chassis and apportionment of fees for such 
registration may not deny the use of trip permits for the operation in 
the State of a container chassis that is registered under the laws of 
another State. A trip permit provides for a daily use fee that is the 
prorated annual registration fees for the vehicle. Under the section, a 
trip permit is required only on days when the container chassis is 
actually operating on the State's roads and not, for example, when it 
remains at an ocean terminal for the entire day.
  This section also provides that a State, political subdivision or 
person may not, with respect to a container chassis registered in 
another State, impose or collect any fee, penalty, fine, or other form 
of damages which is based in whole or in part on the nonpayment of a 
State's registration related fees attributable to a container chassis 
operated in the State before the date of enactment of this section 
unless it is shown by the State, political subdivision or person that 
the container chassis was operated in the State without a trip permit 
issued by the State.
  This provision is intended to prevent the imposition of any liability 
on this basis for the current and past practice of many companies in 
the container shipping industry which register chassis in one State and 
operate them in another State under trip permits issued by the non-
registration State. The provision is intended to ensure that past and 
current practices which are consistent with the objectives of this 
section will not be the basis for the imposition of fees, penalties, 
fines or other forms of damages on this segment of the Nation's 
intermodal transportation system.
  Using the congressional power to regulate interstate commerce, this 
section is intended to facilitate movement of containerized cargo in 
interstate commerce and to remove an unreasonable impediment to 
interstate commerce. It simplifies and rationalizes registration 
requirements for this critically important segment of the Nation's 
interstate intermodal transportation system.
  It is important to note that extensive discussion and consideration 
was given to this section. Members from the Senate Commerce Committee, 
Appropriations Committee, and the House Appropriations and the House 
Transportation and Infrastructure Committee worked on this language and 
came to the conclusion that it is necessary. It is clearly the intent 
of both Chambers of Congress that States, such as California and 
others, which want to limit the operation of chassis that are not 
registered in their State, are prohibited from doing so. Further, it is 
clearly the intent of both Chambers of Congress that States, such as 
California and others, are prohibited from collecting fines or 
penalties from companies which register chassis in another State and 
operate under a trip permit issued by the State where the chassis is 
operated.
  Mr. LEVIN. Mr. President, Yogi Berra, explaining the difficulty of 
playing in the afternoon sun and shadows of Yankee Stadium's notorious 
left field is reported to have commented, ``It gets late early.'' We 
have before the Senate a huge Omnibus Appropriations and Emergency 
Supplemental bill which spends more than $486 billion and legislates 
across a broad range of issues of great importance. We are faced now 
with this massive, sweeping legislation because the 105th Congress did 
not do its work. In the 105th Congress, it got late early.
  From the very outset of this Congress, the majority leadership set a 
slow pace and avoided fully addressing the major issues before the 
Nation. The 105th Congress failed to reform our campaign finance laws, 
failed even to debate a patient's bill of rights, failed to act on 
legislation to reduce tobacco use by our young people, failed to even 
to take up serious regulatory reform, and failed to address the 
problems looming in the future of Social Security. In fact, this 
Congress, failed, this year to even meet its responsibility, under law, 
to pass a budget, the first time this has occurred. And, it failed to 
complete work on 8 of the 13 appropriations bills required to run the 
government. Two appropriations bills were never even debated by the 
Senate and a third was never passed. On top of that dozens of 
legislative proposals were added to this bill which were never debated 
and considered in the Senate.
  The failure to pass the appropriations bills, as required, prior to 
end of the fiscal year on October 1, led directly to the process that 
confronts us with this monster Omnibus Appropriations bill today, a 
four thousand plus page bill which we were unable to even begin reading 
until yesterday.
  The Founders of our Nation envisioned a careful contemplative 
legislative process which divided power and sought to assure that the 
people would be well represented. The process which we have recently 
witnessed was hardly that. It was a closed process, which greatly 
excluded Democrats in the House and Senate, enhancing the powers of the 
Republican leaders of the House and Senate and in an extra-
Constitutional fashion bringing the President into a legislative role. 
Where the Congress was more fully represented, its representation was 
limited to the members and leaders of the Appropriations Committees of 
the House and Senate. This, despite the fact that legislation was 
included affecting the jurisdictions of many, if not all, of the 
authorizing committees. And then, the entire package was lumped 
together and dumped here on the Senate floor on a take it or leave it 
basis. Senators have no opportunity to attempt to amend this product, 
merely to vote yes or no. Never before in my memory have we been 
confronted with appropriations bills and legislative provisions on so 
massive a scale which have never even been considered in either the 
House or Senate.
  The President, and Democrats in the Congress have won some important 
victories in this bill. However, even as we acknowledge and applaud 
those victories, we must be mindful of the precedents which we set when 
we accept this terrible process. Congress should not abdicate its 
responsibilities. That is why I joined with Senators Byrd and Moynihan 
in fighting the line-item veto in the courts, a battle which was 
successful and that is why I am distressed by the process which creates 
the bill on the floor today, an ad-hoc process at best and a process 
which effectively disenfranchises many Americans by short-changing 
their representation, at worst. And that is why, although this 
legislation contains many provisions of which I approve, and although I 
applaud the work of the Administration and Democrats in Congress in 
winning important provisions in this bill, I do not support this 
wretched process and cannot in good conscience vote for this bill.
  Among the most important positive aspects of this legislation is that 
the bill provides additional funding for education. The President and 
Democrats in the Congress put forward an education package early this 
year. This bill finally acts on key elements of that package, providing 
a $1.2 billion downpayment on reducing class size by hiring new 
teachers across the country. In addition, the bill includes $698 
million for education technology, the $260 million that the President 
requested for child literacy, $871 million for summer jobs, a $301 
million increase for title I, $491 million for Goals 2000, and a $313 
million increase for Head Start.
  Unfortunately, the bill excludes the President's school modernization 
initiative which would have leveraged nearly $22 billion in bonds to 
build and renovate schools. Hopefully, we can revisit this issue in the 
next Congress.

[[Page S12766]]

  The bill includes $15.6 billion for National Institutes of Health, $2 
billion more than FY'98 and $859 million more than the Administration 
request, $700 million for Maternal and Child Health Block grant, $9.4 
million more than FY98, $105 million for Healthy Start to reduce infant 
mortality rates, $9.5 million more than FY98, $160 million for breast 
and cervical cancer screening, $16.2 million over FY98, and $2.5 
billion for Substance Abuse and Mental Health Services, $341 million 
above FY98.
  Also, I am pleased that the bill contains language which is a first 
step toward restructuring the home health care payment system. I have 
been concerned about this problem for some time now. I was an original 
co-sponsor of Senator Collins' Medicare Health Equity Act of 1998 I 
believe the provision in the Omnibus bill will create a payment system 
which is somewhat more equitable than the current system. Under our 
current system, health care providers in Michigan have too often been 
penalized for prudent efficient use of Medicare resources, and that is 
wrong.
  In addition to the nearly six billion dollars in the bill for 
emergency assistance to farmers who have been hurt by low prices, 
drought and natural disasters, it contains important money for Michigan 
agriculture for research on subjects from fireblight to wood 
utilization. There is a provision to make apple growers in West 
Michigan, who suffered fireblight-related tree loss in disastrous 
storms, eligible for the Tree Assistance Program. The bill provides the 
President's request for an enhanced food safety incentive, plus an 
increase in the National Research Initiative of $7.4 million for 
nutrition, food quality and health. Some of these additional funds 
could and should be used by the Secretary to help develop safer 
substitutes for pesticides that might be discontinued in implementation 
of the Food Quality Protection Act. Also, the agreement includes 
$300,000 for a study of the WIC food package nutritional guidelines 
finally looking at the benefits of including dried fruit in WIC 
cereals.
  I am pleased that the bill continues a moratorium on the use of funds 
to increase the CAFE standard for passenger cars and light-duty trucks. 
Given the low-price of gasoline and the continued high consumer demand 
for larger, safer vehicles, which are made most efficiently by U.S. 
manufacturers, increasing CAFE would only harm the U.S. economy and 
deprive consumers.
  I am disappointed funding for the National Contaminated Sediments 
Task Force which I requested was not included in the bill. I am 
concerned that this will mean that the existing uncoordinated Federal 
approach will continue to fail in adequately cleaning up contaminated 
sediments and preventing further contamination.
  There will be an additional $400,000 above the President's request 
split between operations and acquisition at Keweenaw National 
Historical Park. The bill includes $800,000 for land acquisition at 
Sleeping Bear Dunes National Lakeshore, and $2.25 million for the final 
phase for acquisition of lands from the Great Lakes Fishery Trust as 
part of the Consumers Energy Ludington settlement.
  This agreement provides the budget request for the International 
Joint Commission so that negotiations with the Canadians can begin in 
earnest to prevent the export of Great Lakes water. The bill includes 
$6.825 million for the Great Lakes Environmental Research Laboratory in 
Ann Arbor. Funds ($50,000) for a study of the erosion problems in Grand 
Marais Harbor are also included. Unfortunately, the bill does not 
include the Senate's increase of $1 million above the budget request 
for the Great Lakes Fishery Commission to combat the sea lamprey in St. 
Mary's River.
  Overall, the bill provides the highest level of funding for the 
Federal Highway Administration in history, at $25.5 billion. That is 
relatively good news, though, unfortunately, the negotiators have 
included over $300 million in new highway money to be handed to four 
different states in an apparent effort to bypass the allocation 
formulas in TEA-21 that were the subject of much debate earlier this 
year.
  The bill does contain $10 million for new buses and bus facilities 
across facilities, and $600,000 for the Capital Area Transit Authority 
in Lansing. And, $200,000 for a study of the viability of commuter rail 
in Southeastern Michigan.
  As a cosponsor of legislation to delay implementation of Section 110 
of the 1996 Immigration Reform bill, which was scheduled to go into 
effect on September 30, 1998, requiring individuals entering the U.S. 
at the Canadian border to complete a visa card at the point of entry 
and register at the time of exit, I am pleased to note that this bill 
contains language delaying the provision for 30 months. However, it 
should be repealed, not just delayed.
  I am pleased that the bill does not include the House version of 
the Auto Salvage Title bill since the House dropped the Levin amendment 
which I successfully attached to the Senate bill. The House version 
would have preempted state laws that provide tougher consumer 
protection.

  I am also pleased that while the bill provides funding to replenish 
the IMF, it will push recipient countries to liberalize trade 
restrictions.
  Mr. President, let me take a moment to comment on the national 
security provisions of the omnibus bill. First, I am pleased that this 
legislation includes the funding the President requested for United 
States participation in the NATO-led peacekeeping force in Bosnia.
  If Congress had not provided this emergency funding, there would have 
been disastrous consequences for the readiness and the morale of our 
forces serving in, and in support of, Bosnia. We all regret that the 
implementation of the civilian aspects of the Dayton Accords has not 
gone as fast as we hoped it would, but Congress has done the right 
thing by providing the necessary funding to ensure the readiness of our 
forces.
  This legislation provides a needed $1 billion in additional readiness 
funding that the President requested earlier this month for equipment 
maintenance, spare parts, and recruiting assistance.
  This omnibus bill also contains the funds requested by the President 
for the Korean Peninsula Energy Development Organization, also known as 
KEDO. This funding is crucial to continuing the Agreed Framework 
between the United States and North Korea. That agreement is our best 
hope for denuclearizing North Korea and has provided tangible security 
benefits to our nation.
  Previous legislation would have effectively prevented the funding of 
KEDO, and thus given North Korea an excuse for walking away from the 
Agreed Framework. That could have led North Korea to produce plutonium 
for nuclear weapons, which would cast the Korean Peninsula into an 
unnecessary and dangerous crisis. This outcome is the right one.
  There are many positive aspects of this legislation for our national 
security, but I am disappointed that so much of the ``emergency'' 
funding in this bill for national security programs is not for 
readiness and not for emergencies, but for things the Defense 
Department and the administration never asked for, in particular the 
addition of $1 billion for ballistic missile defense. Of course, that 
$1 billion for ballistic missile defense cannot be spent unless the 
President submits an emergency request for these funds. I fully expect 
the Administration will exercise good judgement in deciding whether or 
not to request these funds as an emergency.
  Not only is the money added to this bill for missile defense and 
intelligence programs going to fund programs that the administration 
did not request funding for on an emergency basis, again, these are 
programs for which the administration did not request funding at all.
  Furthermore, with regard to missile defense, adding this funding is 
in direct contradiction to the testimony of the Secretary of Defense 
and other senior officials of the Department of Defense who told the 
Armed Services Committee that while there was one instance in which 
additional funds could accelerate a program, the Navy Upper Tier 
program, in general the Ballistic Missile Defense Organization is 
proceeding as fast as it can with all our missile defense programs and 
their development is constrained by technology, not funding 
availability.
  In recent testimony to the Armed Services Committee, senior defense 
and

[[Page S12767]]

military leaders told us that the National Missile Defense (NMD) 
program is going as fast as it can, and that adding more money will not 
make it go faster. Deputy Secretary of Defense John Hamre told the 
Committee: ``As a practical matter, we are moving as fast as we can to 
develop the elements of an NMD system. Even with more money, we 
couldn't go any faster.'' He later emphasized that ``this is as close 
as we can get in the Department of Defense to a Manhattan Project. We 
are pushing this very fast.''
  During that same hearing, General Joseph Ralston, the Vice Chairman 
of the Joint Chiefs of Staff, told the Committee that the NMD program 
enjoys a unique and privileged status within the Defense Department. He 
said: ``I know of no other program in the Department of Defense that 
has had as many constraints removed in terms of oversight and reviews 
just so we can deploy it and develop it as quickly as possible.''
  On October 6th, Secretary of Defense William Cohen testified to the 
Armed Services Committee that the NMD program is being developed as 
fast as possible and additional money will not speed it up: ``I have 
talked to the head of the Ballistic Missile Defense Organization and he 
has assured me that no amount of money will accelerate that timetable . 
. .'' He went on to say that ``I cannot accelerate it no matter what we 
do.''
  So, it is clear that the Defense Department is proceeding as fast as 
possible to develop a National Missile Defense system, and that more 
money will not make this go any faster. Furthermore, the Defense 
Department has told us that only one program could be accelerated with 
more money. I would note that Congress added $120 million to the Navy 
Upper Tier program this year to accelerate it, cut funds from other 
theater missile defense programs and made no attempt in the regular 
legislative process to add any money for National Missile Defense. So 
this unrequested missile defense money cannot speed up most of the 
programs that are now being developed. It is not clear what it would be 
for, but it is clear that the Defense Department never asked for it.
  A few weeks ago, the members of the Joint Chiefs of Staff were 
criticized by some of my colleagues on the Armed Services Committee 
during our hearings with them for not speaking up soon enough or 
forcefully enough about concerns they had with aspects of our defense 
program.
  Mr. President, it seems a little inconsistent to me for the Congress 
to criticize the Pentagon for not speaking up and then after they 
express themselves very clearly on the status of the missile defense 
program, we ignore their testimony and do the opposite of what they 
say.
  I am also disappointed that this legislation perpetuates the practice 
of not fully funding our obligations to the United Nations. It is in 
the national security interest of the United States to have an 
effective United Nations and strong U.S. leadership within the United 
Nations. It is especially regrettable that this legislation moves us in 
the opposite direction in order to score political points on the 
abortion issue.

  Mr. President, the bill that we are voting on today includes S. 2176, 
the Federal Vacancies Reform Act of 1998, with several amendments. This 
legislation clarifies and updates the current Vacancies Act, an 1868 
law meant to encourage the Administration to make timely nominations to 
fill positions in the Executive Branch requiring the Senate's advice 
and consent.
  First, the Vacancies Act provisions in this bill make it explicit 
that the Vacancies Act is the sole exclusive statutory authority for 
filling advice and consent positions on a temporary basis. It can no 
longer be argued that other general statutory authorities creating or 
organizing agencies supersede the Vacancies Act and authorize temporary 
officials, who have not been confirmed by the Senate, to serve 
indefinitely.
  Second, the legislation updates the Vacancies Act in several 
significant respects to more accurately reflect the realities of 
today's nominations process. The clearance process for nominees 
requiring Senate confirmation has become much more complex than it was 
just a decade ago. Moreover, increasingly adversarial confirmation 
proceedings have required that background investigations and other 
steps in the vetting process be more thorough and lengthy. In 
recognition of this development, the legislation increases the time 
period that an individual can serve in an acting position from 120 days 
under current law to 210 days from the date of the vacancy. If a 
nomination is sent to the Senate during that 210 day period, an 
individual may serve in an acting capacity until the Senate has 
completed action on the nomination. Moreover, the legislation gives a 
new Administration an additional time period of 90 days to submit its 
nominations in the first year. The legislation allows first assistants, 
other Senate-confirmed officials, and other qualified high-level agency 
employees to serve as acting officials.
  Finally, the legislation creates an action-enforcing mechanism to 
encourage our presidents to promptly submit nominations. Specifically, 
the legislation provides that if no nomination to fill a vacant 
position is submitted within the 210 day period, the position remains 
vacant and any duties assigned exclusively to the position by statute 
can be performed only by the agency head. As soon as a nomination is 
submitted, however, the legislation provides that an acting official 
can assume the job until the Senate acts on the nomination.
  The legislation also includes an amendment I authored to address the 
problem of lengthy recesses or adjournments. The bill allows a person 
to serve in an acting capacity in a vacant position once a nomination 
is submitted, regardless of whether the nomination is submitted within 
or after the 210 day time period. This is a clarification the 
legislation makes to current law. However, there was no provision to 
allow a person to serve in an acting capacity after the 210 day time 
period if the nomination is made during a recess or adjournment of the 
Senate. My amendment, incorporated into the enacted legislation as 
section 3349d, provides that during such long recesses, the President's 
submission of a written notification that he or she intends to nominate 
a designated person promptly when the Senate reconvenes triggers the 
provision of the bill that allows a person to act in the position 
temporarily until the Senate acts on the nomination. This allows the 
President to fill a vacant position with an acting person during a long 
recess of the Senate provided the President has identified the person 
whose nomination will be submitted when the Senate returns.
  Mr. President, I want to commend my colleagues Senator Byrd and 
Senator Thurmond for their leadership and sponsorship of legislation to 
amend the Vacancies Act. They identified a serious problem in the 
failure of Administrations past and present to comply with their 
responsibilities under the existing law to promptly nominate persons to 
fill advice and consent positions. They worked diligently to resolve 
the various conflicts over this legislation, and I am pleased we were 
able to bring this legislation to a responsible and timely conclusion.
  As we adopt these reforms to the Vacancies Act, we should not forget 
that as Senators we have a corresponding duty to act promptly and 
responsibly on nominations once they are submitted by the 
Administration. We as the Senate rightfully want to protect our 
Constitutional prerogative to provide advice and consent on 
nominations. However, we must by the same token discharge these duties 
in a conscientious and timely manner.
  Mr. President, I also want to mention one piece of legislation which 
the Congress failed to address this year and which was not folded into 
this Omnibus Appropriations bill in the final hours of this Congress. I 
am very disappointed that we were not able to enact legislation to 
improve the regulatory process this year. Senator Thompson and I 
sponsored S. 981, the Regulatory Improvement Act. We had two hearings 
on the bill and marked it up in the Governmental Affairs Committee back 
in March of this year. It was reported to the full Senate for 
consideration in May. The Administration signaled its support for the 
bill with certain agreed-to changes in July. And, we've been urging 
that the Majority Leader bring the bill to the floor since that time. 
The bill now has 17 Republican and 8 Democratic cosponsors.
  S. 981 is a reasonable approach to improving the regulatory process 
by requiring cost-benefit analysis and risk

[[Page S12768]]

assessment for our most significant regulations. It would bring 
meaningful reform to the way the federal government adopts its 
regulations, and it would make the rulemaking process far more open and 
interactive. We lost a great opportunity this year and invested a lot 
of hard work and effort.


further research on fiber polymer additives in asphalt and concrete in 
         connection with the transportation appropriations act

  Mr. THURMOND. Mr. President, I rise to engage in a brief colloquy 
with my colleague, the Honorable Chairman of the Transportation 
Appropriations Subcommittee, Senator Richard Shelby.
  Included in the Senate Appropriations Committee Report accompanying 
the Transportation and Related Agencies Appropriations Act for fiscal 
year 1999, is a provision directing that additional research be 
conducted on a product that I believe could greatly improve highway 
pavement quality and maintenance. I am speaking of the use of fiber 
polymer additives--also known as ``binders''--in asphalt and concrete, 
the use of which appears to yield significant results in pavement 
quality and longevity.
  While only a limited amount of research has been completed on this 
product, the few applications tested under real world circumstances 
have shown very positive results. If this product is as good as it 
appears to be in initial test results, it would revolutionize the 
industry and save states and the Federal Government significant 
resources for use on other critical infrastructure needs.
  Not only does this product appear to add significant longevity to 
pavement life, it also serves an environmental benefit. Mr. Chairman, 
as you know, recycling allows us to conserve our natural resources, it 
diverts additional material from our landfills, and saves energy. A 
company in my home state of South Carolina, Martin Color-Fi, Inc., has 
empirical data that shows substantially improved life expectancy for 
highways constructed with polymer additives in the pavement. Their 
success, and that of others in this area, is encouraging news for 
improving the quality and longevity of our Nation's highways.
  I note that the Statement of Manager's language accompanying the 
Transportation title of the Omnibus Appropriations Act, unlike the 
Senate Committee report, does not specify the amount of funds in the 
Highway Research, Development and Technology Program for the Federal 
Highway Administration (FHWA) to conduct additional demonstrations of 
this technology. It is my understanding that Chairman Shelby shares my 
commitment to this research. Further, it is my understanding that he 
and other members of the committee would join me in strongly 
encouraging FHWA to work with an academic institution, and give 
priority consideration to applying at least the amount of research 
funds specified in the Senate-passed Transportation Appropriations 
bill, in order to create an academic and industry-led consortium to 
demonstrate the application of polymer additives in pavement for civil 
engineering purposes.
  Mr. SHELBY. Mr. President, it is my pleasure to stand shoulder-to-
shoulder with my colleague from South Carolina, the distinguished 
President pro tempore, in this effort to increase funding for research 
into the use of polymer additives for asphalt and concrete pavement.
  The Transportation Appropriations Subcommittee directed that $2 
million be committed for further research into polymer additives. 
Limited resources prohibited us from committing additional resources to 
this effort.
  The provision the Committee added to the Report was designed to 
respond to a shortfall in this area by directing federal research 
efforts into further study of the effects of polymer additives on 
pavement quality and performance.
  I greatly appreciate the Senator from South Carolina's interest in 
this matter, and I look forward to working with him and the FHWA to 
ensure this research is completed and reported to the states and other 
interested parties in a timely fashion.
  Mr. KERRY. There were legitimate reasons to vote against the omnibus 
appropriations bill. This process was an insult to the Congress. The 
Republic leadership has put the Congress in an untenable position by 
refusing to pass many appropriations bills in regular order. I chose to 
vote for this legislation because of the important things it does for 
Massachusetts and the nation, and because I do not believe it is useful 
to cast a protest vote. I am hopeful that in the 106th Congress we can 
engage in a true legislative process.
  Today, the Senate will give final approval to legislation to preserve 
a balanced budget for the first time in more than a generation. A 
balanced federal budget has been a key objective for me since I came to 
the Senate in 1985.
  The Federal government had run a deficit continuously for more than 
30 years until last year. It soared to dangerous levels in the 1980s 
during the Reagan and Bush Administrations. As a result of these 
deficits, our national debt multiplied several times, exacting a heavy 
toll on our economy, increasing interest rates, squeezing federal 
spending and making debt service one of the largest expenditures in the 
Federal budget.
  In 1993, following President Clinton's election, we began the long 
journey back from crushing deficits and toward fiscal responsibility by 
passing an enormously successful economic plan. The full power of our 
economy was unleashed: unemployment is at record low; interest rats are 
subdued; and economic growth continues to be strong. This path 
culminated in last years; agreement to balance the budget and provide 
substantial broad-based tax relief for working American families and 
small businesses.
  This year's federal budget is a continuation along the path of fiscal 
responsibility. At the same time, it begins to address some of our most 
pressing problems in education.
  I am pleased that the omnibus appropriations bill rejects the House 
Republican approach and expands spending on education. The bill 
includes funding to begin hiring one hundred thousand new teachers 
which will assist local school communities to reduce class size in the 
early grades to 18 students. One hundred thousand new teachers will 
allow more individual attention for students which will lead to better 
reading and math scores in the future.
  The final bill also includes $75 million to recruit and prepare 
thousands of teachers to teach in high-poverty areas. It also includes 
$75 million to train new teachers in how to use technology so that they 
can better assist their students. This funding is focused on assisting 
the schools and teachers who need the most help.
  We must do everything possible to increase the reading skills of our 
children so that they can compete in the global economy in the 21st 
century. This budget includes 260 million for the Child Literacy 
Initiative which will improve teachers' ability to teach reading, 
family literacy, and conduct tutor training to help children learn to 
read by the end of the third grade.
  Five million children are locked into a school day that ends in the 
early afternoon and dumps them into empty apartments, homes or violent 
streets despite the fact that we know those post-school hours are when 
teen pregnancies occur, drug use begins, and juvenile crime flourishes. 
The budget agreement includes $200 million for after-school programs 
that will help keep 250,000 children of the streets and into learning.
  We also must develop an educational system which prepares our 
children and young people for adulthood. Today, we are failing too many 
of our children with crumbling schools, overcrowded classrooms, and 
inadequately prepared teachers. The federal government provides a small 
amount of the total funding for public elementary and secondary 
education--less than seven percent of total public spending on K-12 
education comes from the federal government, down from just under 10 
percent in 1980. Reading scores show that of 2.6 million graduating 
high school students, one-third are below basic reading level, one-
third are at basic, only one-third are proficient, and only 100,000 are 
at a world class reading level.
  Mr. President, I am developing legislation for next year to help 
every school make a new start on their own. It will be built on 
challenge grants for schools to pursue comprehensive reform and adopt 
the proven best practices of any other school, funds to help

[[Page S12769]]

every school become a charter school within the public school system, 
incentives to make choice and competition a hallmark of our school 
systems, and the resources to help schools fix their crumbling 
infrastructure, get serious about crime, restore a sense of community 
to our schools, and send children to school ready to learn.
  However, increased spending on education is meaningless if there are 
no adequate school facilities to teach our children. I am disappointed 
that the Democrats' proposed tax credit to build and renovate our 
nation's schools was not included in the final budget agreement. Too 
many schools now operate in substandard facilities which in some cases 
are dangerous to our children. Any initiatives to support education 
must also include an investment to modernize our school buildings.
  America's children especially need support during the formative, 
preschool years in order to thrive and grow to become contributing 
adults. Additionally, adequate child care is not affordable or even 
available for too many families. That is why I believe we must provide 
more help to working families to pay for critically needed, quality 
child care, an early learning fund to assist local communities in 
developing better child care programs, and sufficient funding to double 
the number of infants and toddlers in Early Head Start. President 
Clinton shares this view and included in his 1999 budget proposal my 
recommendations on this issue. I am pleased that the final budget will 
also include $182 million to increase the quality and affordability of 
child care to assist our working families.
  Transportation funding is also crucial to maintain our aging national 
highway infrastructure. I am very pleased that the Omnibus 
Appropriations bill contains an additional $100 million in highway 
funds for Massachusetts as well as approximately $80 million for 
important transportation projects around the state.
  The Commonwealth has reached a critical juncture in its efforts to 
both complete in Central Artery and Tunnel project and also to maintain 
and upgrade roads and bridges throughout the state. As many of my 
colleagues are aware, the ISTEA reauthorization bill contained an 
unacceptably low level of highway funding for Massachusetts. In order 
to secure commitment not to delay Senate consideration of the ISTEA 
bill, Majority Leader Lott, Democratic Leader Daschle, Senators Chafee, 
and Baucus committed to me, among other things, that Massachusetts 
would receive an additional $100 million in highway funds. The 
inclusion of this money in the omnibus bill represents the fulfillment 
of this promise. I wish to express my sincere appreciation to them for 
following through on their commitment. I also wish to thank Senators 
Byrd and Lautenberg for their help in securing this funding.
  As noted above, the omnibus bill also contains $80 million for 
critical transportation projects around the state. It will provide 
millions of dollars to assist in completing the revitalization of 
historic Union Station in Worcester and Union Station in Springfield. 
It will also provide millions to support the construction of intermodal 
centers in Pittsfield and Westfield. Finally, the bill contains funds 
to support work on the North-South Rail Link in downtown Boston. It is 
my hope that his project will continue to receive the funding that it 
is so sorely deserves.
  Since 1995, when the conservative Republicans took control of this 
body and forced upon the Congress the ``Contract-with-America,'' we 
continually have had to fight to retain existing environmental 
protections. This year, we were successful in deleting a number of 
provisions from the final budget that would have set back efforts to 
protect our Nation's natural resources--our forests, parklands, 
fisheries and wildlife.
  The final budget supports our environment and improves the lives of 
the families around America by increasing funding for the clean water 
state revolving fund, the safe drinking water state revolving fund, 
protection of endangered species, preservation of precious lands, and 
the development of cleaner energy technologies. I also am very pleased 
that the final budget includes an additional $50 million for the 
cleanup of Boston Harbor to assist the 2.5 million ratepayers in 61 
Boston area communities who will pay for the bonds which have primarily 
financed this project--$3.8 billion for the Boston Harbor sewage 
treatment project, and $2.8 billion required for combined sewer 
overflows (CSOs) and other water and wastewater infrastructure upgrades 
for the next 30 years.
  I am pleased that Congress agreed to provide the full $17.9 billion 
the administration requested to replenish IMF capital funds. The IMF 
desperately needs this funding because financial crises in South Korea, 
Japan, and Indonesia greatly have depleted its resources. Without full 
funding, the IMF would be inhibited from continuing its support of 
economic recovery in these countries and others.
  As the strongest political and economic power, the U.S. has a 
responsibility to step up to the plate and exercise its leadership in 
dealing with this problem. I agree that the IMF needs to make some 
reforms to achieve greater accountability and management of its 
programs. I believe that implementing the IMF reforms, as required 
under this bill, will be a strong step in the effort to achieve greater 
accountability and management of IMF programs. We must be assured that 
IMF rescue packages effectively will harness economic stability while 
relieving social and political tensions. The IMF must be a viable and 
demonstrable institution that can bring about real change for nations 
suffering under the strains of economic instability.
  As ranking member of the Committee on Small Business, I must give the 
omnibus appropriations bill mixed marks with respect to showing 
Congress's support for SBA's small business assistance programs. I am 
pleased that the Omnibus Appropriations Act adequately funds SBA's 
disaster loan program and fully funds the agency's salaries and 
expenses. To do otherwise would have been irresponsible and detrimental 
to the nation's small businesses and victims of natural disasters. The 
bill takes positive steps with respect to women-owned and veteran-owned 
businesses. The funding for SBA's Women's Business Centers is doubled 
to $8 million, consistent with reauthorizing legislation enacted last 
year, and veteran outreach receives $750,000, the first funding for 
veteran-owned businesses since fiscal year 1995. The bill contains a 
modest increase for the Small Business Development Centers, which 
provide valuable business counseling and training to small businesses 
throughout the country. The SBA's venture capital program received 
significant increases in funding, and the cornerstone 7(a) loan 
guarantee program received substantial funding, although less than the 
administration requested for fiscal year 1999.
  Unfortunately, although the omnibus appropriations bill contains some 
increased funding for SBA's successful Microloan program, I am 
disappointed that it fails to adopt the significant increases to the 
Microloan program, which the authorizing committees envisioned last 
year when Congress passed SBA's three-year reauthorization bill. That 
bill, which was reported out of the Committee on Small Business 
unanimously, made the Microloan program a permanent part of SBA's 
financial assistance portfolio and substantially increased 
authorization levels for both loans and technical assistance. Based on 
those legislative changes, the Administration requested that direct 
microloan be funded at the fully authorized level. During the 
appropriations process, Senator Grassley and nine of our colleagues 
joined me in sending two letters to the Subcommittee leadership voicing 
our support for full funding of the Microloan program, including a 
specific request for increased and adequate technical assistance 
funding. In those letters we described the relationship between loans 
in the Microloan program and technical assistance. Simply put, adequate 
technical assistance funding is prerequisite to successful 
microlending. The microloan and technical assistance funding contained 
in this bill will allow only minimal, if any, growth in this program, 
which helps the nation's neediest borrowers.
  I am also disappointed that the Economic Research arm of SBA's Office 
of Advocacy did not receive the $1.4 million, requested by the 
administration and passed by the Senate. The research performed by that 
office is highly respected and very valuable to work of

[[Page S12770]]

the Committees on Small Business in both bodies and to other small 
business policy makers.
  I support the omnibus appropriations bill because I believe it is an 
acceptable compromise which keeps the federal government on the path of 
fiscal responsibility while beginning to fund critically needed and 
long overdue initiatives to assist America's children. I look forward 
to building on this budget to address the unfinished business of the 
American people in the 106th Congress.


           Extension of the Generalized System of Preferences

  Mr. GRASSLEY. Mr. President, I am pleased that Congress has once 
again extended the Generalized System of Preferences as part of the 
omnibus appropriations bill. The GSP is important for many reasons. For 
instance, from a foreign relations standpoint it allows the U.S. to 
assist developing countries without the use of direct foreign aid.
  It is also of great importance to American businesses. Many American 
businesses import raw materials or other products. The expiration of 
the GSP has forced these companies to pay a duty, or a tax, on some of 
these products. That's what a duty is: an additional tax. By extending 
the GSP retroactively, these companies will not be required to pay this 
tax. This tax is significant and can cost U.S. businesses hundreds of 
millions of dollars. So, Mr. President, it is very important that the 
GSP be extended and it is very appropriate that the Senate consider it 
as part of this bill.
  It is essential to remember, however, that since its inception in the 
Trade Act of 1974, the GSP program has provided for the exemption of 
``articles which the President determines to be import-sensitive.'' 
This is a very important directive and critical to our most import-
effected industries. A clear example of an import-sensitive article 
which should not be subject to GSP and, thus, not subject to the annual 
petitions of foreign producers that can be filed under this program, is 
ceramic tile.
  It is well documented that the U.S. ceramic tile market repeatedly 
has been recognized as extremely import-sensitive. During the past 
thirty-years, this U.S. industry has had to defend itself against a 
variety of unfair and illegal import practices carried out by some of 
our trading partners. Imports already dominate the U.S. ceramic tile 
market and have done so for the last decade. They currently provide 
approximately 60 percent of the largest and most important glazed tile 
sector according to 1995 year-end government figures.
  Moreover, one of the guiding principles of the GSP program has been 
reciprocal market access. Currently, GSP eligible beneficiary countries 
supply almost one-fourth of the U.S. ceramic tile imports, and they are 
rapidly increasing their sales and market shares. U.S. ceramic tile 
manufacturers, however, are still denied access to many of these 
foreign markets.
  Also, previous abuses of the GSP eligible status with regard to some 
ceramic tile product lines have been well documented. In 1979, the USTR 
rejected various petitions for duty-free treatment of ceramic tile from 
certain GSP beneficiary countries. With the acquiescence of the U.S. 
industry, however, the USTR at that time created a duty-free exception 
for the then-minuscule category of irregular edged ``specialty'' mosaic 
tile. Immediately thereafter, I am told that foreign manufacturers from 
major GSP beneficiary countries either shifted their production to 
``specialty'' mosaic tile or simply identified their existing products 
as ``specialty" mosaic tile on custom invoices and stopped paying 
duties on these products. These actions flooded the U.S. market with 
duty-free ceramic tiles that apparently had been superficially restyled 
or mislabeled.
  In light of these factors, the U.S. industry has been recognized by 
successive Congresses and Administrations as ``import-sensitive'' 
dating back to the Dillon and Kennedy Rounds of the General Agreement 
on Tariffs and Trade (GATT). Yet during this same period, the American 
ceramic tile industry has been forced to defend itself from over a 
dozen petitions filed by various designated GSP-eligible countries 
seeking duty-free treatment for their ceramic tile sent into this 
market.
  The domestic ceramic tile industry has been fortunate, to date, 
because both the USTR and the International Trade Commission have 
recognized the ``import-sensitivity'' of the U.S. market and have 
denied these repeated petitions. If, however, just one petitioning 
nation ever succeeds in gaining GSP benefits for ceramic tile, then all 
GSP beneficiary countries will be entitled to similar treatment. This 
could eliminate many American tile jobs and devastate the domestic 
industry. Therefore it is my strong belief that a proven ``import 
sensitive,'' and already import-dominated product, such as ceramic 
tile, should not continually be subjected to defending against repeated 
duty-free petitions, but should be exempted from the GSP program.
  Mr. REED. Mr. President, it is a bittersweet task that brings us back 
to Washington for one last vote before the end of the 105th Congress. 
Today, we will complete our work on the fiscal year 1999 budget.
  To be sure, there is much that I like about the Conference Report 
before us, but there are some provisions that I strongly disagree with. 
On balance, however, it is a budget that is worthy of support.
  Like many of my colleagues, I must lament the process that has 
brought us to this point--20 days after the start of the fiscal year. 
The Conference Report that we are about to vote on is almost 4,000 
pages long. We have been given only a few hours to examine it. None of 
us knows the complete contents of the legislation, and there has been 
no opportunity to debate or offer amendments.
  Fortunately, we have avoided a budgetary train-wreck similar to the 
one that closed down the government in 1995. But, Mr. President, this 
year the train is extremely late, and to hear the debate in this 
chamber, nobody wants to take responsibility for driving the engine.
  We have subverted the regular budgetary process, failing even to pass 
a Budget Resolution. The majority could not reconcile its own 
discordant priorities to pass this blueprint legislation, which is 
required by law.
  On this side of the aisle, we had a definitive agenda: preserve the 
budget surplus to save Social Security, invest in education, pass 
health care reform legislation, pass campaign finance reform, and pass 
legislation to prevent the tobacco industry from preying on our 
youngsters.
  The President made these goals clear in his State of the Union 
Address and later with his fiscal year 1999 budget proposal. Claims 
that the priorities on this side were hidden until the very end are 
false. We have been here all along, working toward goals that the 
American people recognize as important, and we have had some success in 
achieving these goals in this legislation. There are a few provisions 
of the Conference Report that I would like to highlight:
  This legislation preserves the surplus to help save Social Security.
  It includes $1.2 billion for efforts to reduce class-size, of which 
$5.6 million would be awarded to my home state of Rhode Island. The 
omnibus bill also allocates funding to improve teacher preparation and 
recruitment, a cause that I was actively involved with during the 
drafting of the Higher Education Act Amendments of 1998.
  The budget bill also includes funding for critical reading 
legislation--$260 million to help address the serious declines in 
literacy levels that have left 40% of America's fourth graders without 
basic literacy skills. The newly created GEAR UP program would receive 
$120 million under the bill. This ambitious new initiative will help 
encourage youngsters living in high poverty areas to pursue their 
higher education goals.
  Finally, this Conference Report contains $33 million for the 
construction of as many as five new Job Corps centers, including one in 
Rhode Island, which is one of only four states currently without a 
center.
  On the negative side, $800 million in subsidies for the Tennessee 
Valley Authority (TVA) was slipped into this legislation. Neither House 
of Congress included this level of funding in its version of the Energy 
and Water Appropriations bill. The omnibus package also retains a 
poorly constructed rider that prevents the Occupation Safety and Health 
Administration (OSHA) from conducting inspections on small

[[Page S12771]]

farms in response to fatal accidents involving minors. I am committed 
to addressing both of these issues next year.
  This Conference Report is also bad for what it does not contain. In 
particular, it lacks funding for school construction, which is required 
to help meet the $121 billion need for new and refurbished schools, nor 
does it include an important bipartisan initiative authored by Senators 
Jeffords and Kennedy to help individuals with disabilities join the 
workforce while maintaining their essential Medicare and Medicaid 
coverage.
  Finally, it fails to adequately fund the Leveraging Educational 
Assistance Partnership (LEAP), a federal-state program that is a major 
source of higher education grant aid. I worked hard with the other 
authors of the Higher Education Act Amendments to reauthorize and 
improve this program, and I believe the failure to sufficiently fund 
LEAP is short-sighted.
  Mr. President, there is much that could be done to improve this 
Conference Report, but we must pass it to keep the government open. It 
is unfortunate that we have been put in the position of having to vote 
up or down on this hefty omnibus package with no opportunity to offer 
amendments, no opportunity for a substantive debate, and little chance 
to review the measure itself. Fast-Track budgeting at the end of a 
Congress is no way to make up for time squandered at the beginning. I 
hope that this is the last time we follow this kind of eleventh-hour, 
gerry-rigged process.


                 ryan white aids funding under title iv

  Mr. LAUTENBERG. I would like to engage the Chairman and Ranking 
Member of the Labor-Health and Human Services (HHS) Appropriations 
Subcommittee in a brief colloquy concerning pediatric AIDS 
demonstrations funded under Title IV of the Ryan White CARE Act.
  Mr. SPECTER. I would be pleased to engage in a colloquy.
  Mr. HARKIN. I, too, would be pleased to engage in a colloquy with the 
Senator from New Jersey.
  Mr. LAUTENBERG. I would first like to commend and thank the Chairman 
and Ranking Member for their work to ensure our Nation's continued 
strong commitment to our children and families tragically infected with 
HIV by providing support for Title IV of the Ryan White CARE Act. Title 
IV programs are designed to coordinate health care and assure that it 
is focused on families' needs and based in their communities. These 
programs are the providers of care to the majority of children, youth, 
and families with HIV/AIDS in our country, ensuring these families have 
access to the comprehensive array of services they need. A portion of 
Title IV funds may be used to provide peer-based training and technical 
assistance through national organizations that collaborate with 
projects to ensure development of innovative models of family centered 
and youth centered care; advanced provider training for pediatric, 
adolescent, and family HIV providers; coordination with research 
programs, and other technical assistance activities.
  The Senate report stated that the Committee intends for the 
Department to continue its Title IV support of the National Pediatric 
and Family HIV Resource Center located within the University of 
Medicine and Dentistry of New Jersey. The Title IV funding needed to 
support the Center's work is $1.1 million per year. Is it correct that 
the managers intend for the Department to continue to support the 
National Pediatric and Family HIV Resource Center?
  Mr. SPECTER. Yes, the Senator from New Jersey is correct. The 
committee intends that the National Pediatric and Family HIV Resource 
Center should continue to receive adequate funding.
  Mr. HARKIN. I concur with the Chairman.
  Mr. LAUTENBERG. I thank the Chairman and Ranking Member for their 
support, and for their continued work in this very important component 
of our national HIV/AIDS strategy.


                      parkinson's disease funding

  Mr. COCHRAN. Mr. President, one year ago this body adopted, by a vote 
of 95 to 3, legislation increasing our nation's commitment to finding 
the cause and cure for a long overlooked, but truly devastating 
disorder: Parkinson's disease. I was proud to cosponsor and vote for 
the Morris K. Udall Parkinson's Disease Research Act, signed into law 
as part of the Fiscal 1998 Labor, Health and Human Services, Education 
and Related Agencies Appropriations Act. The Udall Act authorized $100 
million in research focused on Parkinson's disease to be funded through 
the National Institutes of Health in fiscal year 1998, 1999 and beyond.
  The passage of the Udall Act was a great accomplishment, particularly 
for the hundreds and thousands of victims, and their families and 
friends, who worked so diligently to bring this issue to the Congress 
and make us aware of the need for additional Parkinson's research 
funding. I would also like to commend the Senior Senator from 
Pennsylvania, one of the true champions of medical research, for his 
strong support of the Udall Act and Parkinson's research.
  Mr. SPECTER. I appreciate the remarks of my friend from Mississippi. 
He is correct that Parkinson's disease is a very serious disability, 
but one for which medical science does hold great promise. In addition, 
I too would like to commend the efforts of the Parkinson's community 
who have worked tirelessly to achieve passage of the Udall Act and 
increase funding for Parkinson's research.
  Mr. COCHRAN. Mr. President, I am concerned that the National 
Institutes of Health has implemented neither the letter nor the spirit 
of the Udall Act, and that funding for Parkinson's-focused research has 
not increased in a fashion consistent with Congressional intent. An 
independent analysis, conducted by Parkinson's researchers at 
institutions all around the country, of the grants NIH defined as its 
Parkinson's research portfolio for fiscal year 1997 indicates that a 
majority of the grants are in fact not focused on Parkinson's disease. 
Only 34 percent of the funding NIH claims is Parkinson's research is 
actually Parkinson's-focused research, as required by the Udall Act. As 
troubling as that is, the study also found that 38 percent of the 
funding has no relation whatsoever to finding a cause or cure for this 
terrible affliction.
  It is my understanding from published NIH budgetary documents that 
$106 million is expected to be allocated to Parkinson's research in 
fiscal year 1999. My concern is that without more direction from 
Congress, the NIH will undermine the intent of the Udall Act by 
continuing to classify, as part of its Parkinson's portfolio, research 
that is not focused on Parkinson's disease and, in doing so, will allow 
meritorious and much-needed Parkinson's research projects to go 
unfunded. I propose that a hearing be held early in 1999 to address and 
clarify these matters.
  Mr. SPECTER. The gentleman has brought up important issues, which 
warrant further discussion.
  Mr. CRAIG. As a sponsor of the Udall Act and supporter of Parkinson's 
research funding, I appreciate the Chairman's interest in these 
matters. The NIH claimed to spend more than $89 million on Parkinson's 
research in 1997. The Congress set a baseline authorization of $100 
million for Parkinson's research in the fiscal year 1998 bill making 
NIH appropriations and clearly stated in report language that 
Congressional intent was to increase the commitment of NIH resources to 
Parkinson's. Close review of NIH's Parkinson's funding practices 
indicates that most of the research funding they define as Parkinson's 
is, in fact, not focused on Parkinson's at all. The NIH claimed to 
spend more than $89 million on Parkinson's research, in FY 1997. In 
reality, we later discovered that less than $31 million--just more than 
one third--of that research was truly focused on Parkinson's. Obviously 
there seems to be some disconnect here. Congress needs to be as clear 
as possible when communicating our intent to NIH, and diligent when 
overseeing their funding practices with regard to Parkinson's. I agree 
with Senator Cochran that hearings should be held early next year to 
address these issues, and I look forward to working with him, the 
Chairman, and others to see this resolved.
  Mr. SPECTER. I thank the gentleman from Idaho and look forward to 
future discussions on his suggestions. It is a pleasure to recognize 
the sponsor of the Udall Act, and someone who remains very close to Mo 
and the Udall family, the distinguished Senator from Arizona.

[[Page S12772]]

  Mr. McCAIN. I thank my friend from Pennsylvania. The Senator is 
correct that this is an issue of personal importance to me, and I 
appreciate his support as we work to defeat this terrible disease. I 
would also like to acknowledge the tremendous efforts of the 
Parkinson's community--courageous individuals in my state and all 
across the country who have worked so hard to pass the Udall Act and 
continue to work to achieve its full funding.
  There are an estimated one million Americans living with Parkinson's 
disease, and the nature of its symptoms are such that they impact 
heavily on families and loved ones as well. Add to these staggering 
human costs the fiscal burden of health care expenses and lost 
productivity, and it's easy to see that Parkinson's deserves to be a 
higher national priority. Parkinson's disease also represents a real 
research opportunity, where an investment of funds is likely to yield 
improved therapies sure to reduce both the personal and financial costs 
to our families and our nation.
  To realize this opportunity, though, it is up to Congress and the NIH 
to ensure that these funds get allocated to research focused on 
Parkinson's. Chairman Specter and others in this body have worked hard 
to ensure that NIH has the overall funding it needs to aggressively 
pursue research opportunities like those relating to Parkinson's. I 
have received a letter dated May 21, 1998 from NIH Director, Dr. Harold 
Varmus, which includes a chart indicating that the NIH will spend over 
$106 million on Parkinson's research in fiscal year 1999. I look 
forward to working with my colleagues and the NIH to see that this 
funding goes for research principally focused on the cause, 
pathogenesis, and/or potential therapies or treatments for Parkinson's 
disease as mandated by the Udall Act.
  Mr. SPECTER. I thank the gentleman for his remarks, and look forward 
to continuing to work with him on these matters. Now I would like to 
recognize the other Senate sponsor of the Udall Act, another Senator 
with a deep and sincere connection to Parkinson's disease, the 
gentleman from Minnesota, Senator Wellstone.
  Mr. WELLSTONE. I thank the Senator, and commend him for his support 
on this very important issue. I also wish to thank my friend, Senator 
McCain, for joining me last year in sponsoring the Udall Act.
  I believed when we passed the Udall Act last year we had begun to 
change a sad history of chronic underfunding of Parkinson's by the NIH. 
It was a very personal victory for me--and for all those who fought so 
hard to see the Udall Act enacted into law.
  I am here today, along with my colleagues, in an effort to fulfill 
the promise of the Udall Act and the commitment we in Congress made to 
people with Parkinson's, their families and those researchers dedicated 
to curing this disease. I find it very disheartening to learn that so 
little of the research NIH claims to devote to Parkinson's is actually 
Parkinson's-focused as called for by the Utall Act. it was our intent 
and it is our obligation to ensure that at least $100 million in 
research specifically focused on Parkinson's is allocated. And if it 
takes stronger language, more oversight, or congressional hearings to 
guarantee it gets done, then that's what we must do.
  Members of the Senate have expressed their interest in seeing the 
Udall Act fully funded in fiscal year 1999, and we have taken some 
positive steps this year to accomplish that goal. But our work is not 
done. The ultimate goal is not legislative accomplishments. It is not 
adding more dollars to this account or that one. The ultimate goal is 
to find a cure for this horrible, debilitating disease so that more 
people don't have to suffer the way my parents and our family did, or 
the way Mo Udall and his family does, or the way countless families do 
every day in this country. By passing the Udall Act we made a promise 
to put the necessary resources into the skilled hands of researchers 
dedicated to finding that cure. I intend, as I know my colleagues and 
those in the Parkinson's community intend, to do everything I can to 
fulfill that promise.
  Mr. SPECTER. I thank the Senator from Minnesota and all of my 
colleagues for their remarks today about Parkinson's research funding 
through the NIH. I look forward to working closely to address the 
concerns expressed here today.


             springfield, vt, workforce development center

  Mr. JEFFORDS. Mr. President, I would like to engage my good friend 
and colleague, the Chairman of the Subcommittee on Labor, Health and 
Human Services and Education Appropriations in a colloquy regarding a 
provision in this legislation that is of great importance to me.
  Mr. SPECTER. I would be pleased to join my good friend and colleague 
in a colloquy.
  Mr. JEFFORDS. The Springfield region of Vermont currently faces a 
crisis in the machine tool industries. Six major machine tool employers 
in the area indicate that more than 50 percent of their workforce will 
retire within the next five to seven years. This will create the need 
for highly skilled employees to fill more than 700 positions in machine 
technology. In addition, other employers in the areas of information 
technology, hospitality and travel, financial services and food 
services industries indicate that they have an urgent need for a 
responsive education delivery system designed to meet their growing 
demand for skilled labor. I understand that the conference report 
includes funds for the Springfield Workforce Development Center to 
implement innovative training and vocational education strategies to 
meet the education, workforce and economic development needs of the 
region.
  Mr. SPECTER. The Senator is correct. The Appropriations Committee 
recommendation includes funding for the Springfield Workforce 
Development Center, and this recommendation is retained in the 
conference agreement on the omnibus bill.


                  medical university of south carolina

  Mr. HOLLINGS. May I enjoin the Senator from Pennsylvania in a 
colloquy?
  Mr. SPECTER. I would be pleased to hear from the Senator from South 
Carolina.
  Mr. HOLLINGS. I would like to clarify an item contained in the 
statement of the managers of the omnibus appropriations bill. In the 
health facilities section of the Health Resources and Services 
Administration, reference is made to a project intended for the Medical 
University of South Carolina. Inadvertently, the word ``Medical'' was 
not included in the statement of the managers; however, that word's 
inclusion was clearly the intent of the managers.
  Mr. SPECTER. I thank the Senator for his clarifying statement.


                          hepatitis c funding

  Ms. MIKULSKI. Will the chairman of the Labor, Health and Human 
Services, and Education Appropriations Subcommittee yield for a 
question?
  Mr. SPECTER. I will be pleased to yield to the Senator from Maryland.
  Ms. MIKULSKI. As the chairman knows, hepatitis C is the most common 
blood-borne infection in the United States. The CDC estimates that 
there are 4 million Americans--or 2 percent of the population--that are 
infected. Each year there are 10,000 deaths due to hepatitis C and the 
death total will increase to 30,000 a year unless something is done to 
intervene with the progression of this disease in the United States. 
Unfortunately, the vast majority of people infected with hepatitis C 
are not even aware that they are infected because the disease is 
``silent`` without symptoms sometimes for decades. Meanwhile these 
infected individuals may be passing the disease on, causing new 
infections to occur each year. We need to break this cycle by helping 
individuals learn they have hepatitis C and by getting them to seek 
counseling, testing, and treatment of their infection and begin to 
understand the seriousness of this epidemic.
  Additional funds are needed to support both a targeted look back 
effort to reach the 300,000 Americans who have hepatitis C as a result 
of exposure to blood products prior to 1992, when blood was not 
adequately screened for hepatitis C and a general media campaign to 
alert other Americans infected by hepatitis C. These funds are needed 
to fund cooperative efforts of State and local health departments and 
national voluntary health agencies such as the American Liver 
Foundation to identify, educate, counsel, test and refer for treatment 
those infected. The efforts should be bolstered by a toll-free hotline 
to help provide information and

[[Page S12773]]

counseling. In addition, since not everyone can afford private testing, 
some of these funds should be made available to public health agencies 
for clinic testing and other testing options, including FDA-approved 
telemedicine testing services.
  The chairman and the committee have some very strong report language 
focused on this issue and the chairman is well aware of this problem. I 
compliment him for the guidance he has given to the CDC on this issue. 
I have been informed by the CDC that $48 million is needed and at a 
minimum $16 million is needed just to begin to address this epidemic in 
fiscal year 1999. Can this amount be found within the totals 
recommended by the conferees?
  Mr. SPECTER. I thank the Senator for her question. I agree that more 
needs to be done by CDC to address the hepatitis C epidemic. The 
conferees have provided a substantial increase for Infectious Diseases 
at CDC and I will urge the CDC to allocate increased resources to this 
matter.
  Ms. MIKULSKI. I thank the chairman of the Labor, Health and Human 
Services, and Education Appropriations subcommittee for his response. 
Again, I compliment him and the ranking member, Tom Harkin, for their 
hard work on the Labor/HHS appropriations bill.


         drexel university intelligent infrastructure institute

  Mr. SPECTER. Mr. President, I have sought recognition to thank the 
chairman of the Transportation Appropriations Subcommittee for having 
included in this legislation funding for the Drexel University 
Intelligent Infrastructure Institute. I have been pleased to have 
worked with Drexel for several years on obtaining funding to establish 
the institute, which will focus on the link between intelligent 
transportation systems and transportation infrastructure. Drexel has 
teamed up with the Delaware River Port Authority to study that agency's 
infrastructure, which includes four major bridges that provide critical 
links in the east coast corridor. Congress has previously appropriated 
$750,000 toward this project and authorized establishment of the 
institute in the TEA-31 legislation enacted earlier this year.
  It is my understanding that it is the intent of the managers for the 
Transportation Appropriations bill that the $500,000 provided for the 
institute shall be made available pursuant to the provisions of section 
5118 of TEA-21, which specifically authorizes the establishment of the 
Institute.
  Mr. SHELBY. I want to thank the Senator from Pennsylvania for his 
comments and to confirm his understanding with respect to the Drexel 
Institute. As noted in the Senate committee report, the funds allocated 
within the Statement of Managers are to be made available for the 
purposes expressed in section 5118 of TEA-21.


      the american competitiveness and work force improvement act

  Mr. GRAMS. Mr. President, I rise in support of the compromise H-1B 
visa legislation included in the omnibus appropriations bill. I am 
pleased a compromise was achieved that has now passed the House by a 
vote of more than two to one.
  With the demand in this country rising for this category of highly 
skilled workers currently in short supply in the U.S., I believe there 
is a need to temporarily increase this visa category. The engine now 
driving our successful economy is being fueled in large part by growth 
in the information technology industry. I am told these high tech 
industries account for about one-third of our real economic growth. 
According to the Information Technology Industry Data Book, 1998-2008, 
the domestic revenue from the U.S. information technology industry is 
projected to be $703 billion for the year 2000.
  With this sudden surge in industry growth, the United States has 
found itself unprepared to supply the large numbers of math and 
engineering graduates necessary to support this growth. In fact, 
American schools are producing fewer math and engineering graduates 
than in the past.
  We have been forced to address this current imbalance by temporarily 
allowing needed high-tech workers to work in our country. This is 
necessary until we can develop the expertise we need in the country.
  This compromise bill will do just that. For the next 3 years, 
additional workers from foreign countries will be allowed to work here. 
During this time, Americans will be educated to fill these jobs through 
scholarships and job training financed by fees collected from employers 
petitioning for the current foreign workers. We must do more to ensure 
our work force meet the demands of a growing, more sophisticated 
economy--that we have the educated work force we need to continue to 
prosper and provide better jobs for Americans.
  There are other important issues covered by the bill including 
increased penalties for violations of law by employers, random 
investigations of employers sponsoring H-1B visas by the Department of 
Labor and protection of ``whistleblowing'' employees. I think this 
compromise is something that will help us now and in the future. I urge 
its passage.
  Mr. KOHL. Mr. President, I rise today in opposition to the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act before us. 
This was not an easy decision because there are many parts of this 
legislation I support. But, on balance, I cannot support a bill that is 
in essence sloppy--both in the process by which it was constructed and 
in its content.
  We are asked today to vote--up or down--on a bill that contains eight 
of thirteen appropriations bills that fund the government and almost 
$500 billion in government spending, nearly 30 percent of our budget. 
We have one vote, little debate, and no chance of amendment on what has 
been described as the largest piece of spending legislation in recent 
history. And beyond the spending sections of the bill, it also includes 
various pieces of authorizing legislation--seven different drug bills, 
home health care reform, and Internet tax moratorium, a tax cut that 
will cost $9.2 billion over the next nine years among other items.
  This is a huge measure--a measure that the esteemed Senator Byrd has 
called a ``monstrosity,'' and he is right. It is a measure that, in its 
entirety, few have seen and no one understands. Yet today, we are asked 
to say ``yes'' or ``no'' to it. How can we say ``yes'' to a budget that 
we have not read, have not participated in its drafting, have not even 
seen? To do so would be irresponsible and undemocratic.
  In saying this, I mean no disrespect to those of my colleagues who 
have worked very hard to try to make this process fair. The negotiators 
were caught in a bind that all of Congress has a responsibility for 
creating: We let partisanship and politics get in the way of passing a 
thoughtful budget this year, and so now we are stuck slapping a budget 
together at the last minute.
  I commend the negotiators for doing the best they could. All parties 
were as responsive as this terrible situation allowed. The Democratic 
leadership in the Senate and Representative Obey were vigilant in 
trying to protect the interests of Wisconsin during negotiations, and 
they were successful in doing some good for our State and in avoiding a 
great deal of bad.
  I also do not mean to suggest that there are no items in this 
legislation that I support. There are many good policies, provisions 
and priorities established here.
  For the most part, I am pleased with the final form of the Treasury-
General Government appropriations bill which I worked on as the 
Subcommittee's Ranking Member. Controversial language tampering with 
the Federal Election Commission's staff was dropped. Important language 
guaranteeing adequate contraceptive coverage to federal employees was 
retained. And many important law enforcement and financial agencies 
were funded at adequate levels. In addition, that bill allocated money 
for fighting the war on drugs in my State--an additional $1.5 million 
to expand the Milwaukee High Intensity Drug Trafficking Area (HIDTA) 
and additional funds for expanding the Youth Crime Gun Interdiction 
Imitative operating now in Milwaukee.
  The Omnibus bill also makes a strong investment in the education of 
our children, starting from early childhood education and continuing 
through higher education. The bill increases funding for the Child Care 
and Development Block Grant to over $1.18 billion,

[[Page S12774]]

an increase of $182 million. This includes a continuation of the $19.1 
million set-aside for resource and referral programs, which help 
parents locate quality, affordable child care in their communities. In 
addition, we increased funding for Head Start by over $300 million, 
increased funding for Disadvantaged Students (Title I) by over $300 
million, increased Special Education funding by over $500 million, and 
provided $1.1 billion to local school districts to help reduce class 
size in the early grades. We also provided over $300 million more for 
Student Aid, including an increase in the maximum Pell Grant to $3,125.
  In addition to investing in our children, the bill also ensures that 
we take care of our nation's elderly. Despite the fact that the House 
eliminated funding for LIHEAP, we were able to restore that funding to 
its full amount of $1.1 billion, ensuring that the elderly will not 
have to choose between food and heat during the cold winter months. We 
also increased funding for the Administration on Aging, including a $3 
million increase for the Ombudsman program, which serves as an advocate 
for the elderly in long-term care facilities.
  This appropriations measure also includes vital funding for highways 
and transit at the historic levels approved by Congress as part of the 
Transportation Equity Act earlier this year and a strong level of 
investment in airport improvement. In addition, the transportation 
piece of the omnibus bill funds a number of Wisconsin specific items, 
including Wisconsin statewide bus programs that play a crucial role in 
our welfare to work efforts, the renovation of the Milwaukee Train 
Station, crash and congestion prevention technology funding for the 
State, commuter rail planning and grade crossing mitigation funds for 
Southeastern Wisconsin and funding for the Coast Guard's Great Lakes' 
icebreaker and Seagoing Buoy Tender replacement programs.
  The transportation piece of the omnibus package includes an important 
authorization provision affecting Milwaukee, Wisconsin's East West 
Corridor project. In the ISTEA reauthorization debate, the future of 
this project fell victim to politics and backroom dealing. 
Specifically, a provision was attached to the reauthorization 
legislation, the Transportation Equity Act or so-called TEA-21 law, 
which sought to undermine the framework of local decision making 
created by the original ISTEA in 1991. Worse still, this TEA-21 
provision had not been debated as part of either the House or Senate 
reauthorization bills, but was added to the final bill at the eleventh 
hour despite the objections of those Members of Congress most impacted.
  As a member of the Transportation Appropriations Subcommittee, I 
attempted to mitigate the damage done by the TEA-21 provision by 
attaching an amendment to the Senate Transportation Appropriations bill 
for Fiscal Year 1999. My amendment reaffirms the right of local 
officials to decide what transportation projects best fit the needs of 
their community. It simply makes sure that all parties who deserve to 
be at the decision making table have an equal seat at that table. I am 
pleased that a compromise version of my amendment is included in the 
omnibus package. It is my sincere hope that State and local officials 
will now work together to move ahead expeditiously with the East West 
Corridor improvements. Fairness has won the day, now consensus and 
cooperation must yield progress on a project of vital importance to the 
economy and quality of life in Southeastern Wisconsin.
  I also am pleased several provisions I worked for throughout the year 
have made it into the portion of the bill covering Commerce-Justice-
State appropriations. Most importantly, the legislation includes more 
than a threefold increase in crime prevention spending through Title V, 
a juvenile crime prevention program I authored six years ago. The 
funding level was increased from $20 million to $70 million. This 
should provide WI with around $1 million in prevention spending next 
year, a big boost from the approximately $340,000 it received last year 
out of the lower funding level.
  The bill also extends a limited number of important tax provisions in 
a fiscally responsible manner--meaning these provisions are paid for, 
but not at the expense of the social security surplus. In particular, I 
strongly support the acceleration of the increase in the deduction for 
health insurance of the self-employed and the permanent extension of 
income averaging. Both these measures will go a long way to ease the 
tax burdens of Wisconsin's farmers and small business people. When we 
return in the spring, it is my hope that we will approve the reforms 
necessary to preserve the long term viability of social security, as 
well as enact more additional targeted, fiscally sound tax relief 
measures, such as my Child Care Tax Credit.
  Finally, I applaud the Administration for recognizing the financial 
crisis that is sweeping the agricultural sector of the Midwest this 
summer. The legislation also wisely adds more money for market losses 
and drought in the southern U.S.
  In addition, this bill does more than recognize the current problems 
in rural America. Although modest, the bill provides more financial 
help to maintain the viability of Wisconsin agriculture by 
appropriating $17 million more for agricultural research than last 
year, allowing the University of Wisconsin to develop the new 
technologies that will soon be the new production practices used by 
farmers. Soil and Water Conservation programs spending will increase by 
$8 million, enhancing programs like the Environmental Quality 
Improvement Program (EQIP). An additional $23 million was added for the 
Administration's Food Safety Initiative which includes money to 
increase the surveillance, research and education relating to food-
borne illnesses. And finally, Congress agreed to pay dairy farmers for 
the transitioning of the industry to a more market oriented system as 
ordered by the last farm bill. Dairy producers will receive an 
estimated $200 million for agreeing to end the price support system in 
1999.
  However, I still have significant concerns that Congress decided to 
postpone the consolidation of the milk marketing orders required by the 
1996 Farm Bill and to extend the Northeast Dairy Compact. Our outdated, 
unfair pricing system must come to an end. It was wrong to use this 
bill to extend its life--and the life of a controversial regional price 
fixing scheme--both policies that hurt competitive Wisconsin family 
farmers.
  Another major problem with this bill is the use of the budget surplus 
to fund over $20 billion ``emergency'' spending. Certainly, some of 
these funds will go to meet truly unanticipated and urgent needs--like 
military deployments, natural disaster recovery efforts, and a response 
to the farm crisis sweeping the center of the nation. These are one-
time, compassionate and necessary expenditures that must be made 
regardless of budget rules.
  Unfortunately, a significant portion of the so-called ``emergency'' 
money is not for true emergencies. For example, $1.3 billion is for 
military readiness--a worthy goal, but one that we ought to budget for 
as part of our annual budget process. I certainly hope it is not news 
to anyone that we expect our military to be ready to defend us. In 
addition, $50 million of that money is for ``morale, welfare, and 
recreation.'' Again, I agree with the goal of keeping our troops fit 
and content--but doing so should be a priority in every year's budget, 
not an off-budget item described as an ``unanticipated need.''
  Many of us have argued that we ought not to use the budget surplus as 
an excuse to abandon fiscal discipline. We still need to save--for the 
Social Security obligations and health care needs of an aging 
population, for the rainy day that world economic instability may bring 
about, for the trust of the American taxpayer who expect us to use 
their tax dollars wisely. We succeeded in balancing the budget; it 
makes no sense to celebrate by unbalancing it again.
  I am also concerned about the pork that is the inevitable result of 
the haphazard and closed process that produced this legislation. I do 
not know what it is now, but I do know it will show up as we--and the 
public and the press--pore over the 8000 pages of this legislation over 
the next few weeks.
  In the end, as with any vote, the final decision has to be a result 
of weighing the good and the bad. No bill is perfect; most are the 
result of compromise. But

[[Page S12775]]

in this bill, the balance of good and bad is tipped by the undemocratic 
and irresponsible manner in which it was written. I will vote no this 
morning, and I urge my colleagues to join me.
  Mr. KYL. Mr. President, for the better part of the last year, we have 
been considering what to do with projected budget surpluses should they 
ever materialize. Some people suggested setting aside the excess money 
to help save Social Security. Some wanted to use a portion for tax 
relief, or paying down the national debt. I believe there was merit in 
each of those ideas.
  It did not take long, however, for all of the good ideas to be swept 
aside once the surplus actually materialized. Just three weeks after 
confirming that the federal government achieved its first budget 
surplus in a generation, we have a bill before the Senate that proposes 
to use a third of the surplus to increase spending on government 
programs other than Social Security, tax relief, or repayment of the 
national debt.
  I am very disappointed that we find ourselves in this situation. 
President Clinton pledged in his State of the Union address to ``save 
every penny of any surplus'' for Social Security, yet he was the first 
in line with a long list of programs to be funded out of the budget 
surplus. And Congress appears willing to go along. I, for one, intend 
to vote against this raid on a surplus that should be saved for Social 
Security or tax relief.
  Mr. President, the Congressional Budget Office tells my office that 
it has not yet determined the cost of the omnibus spending bill, and 
may not be able to do so for some time. However, if you total the 
figures included in the conference report, it appears that the cost 
will approach $520 billion--that is, if funding for the International 
Monetary Fund and emergency agriculture money is included. I am looking 
at Division A of the bill--for mandatory and discretionary programs.
  That compares to $447 billion for the same programs only a year ago. 
In other words, we are being asked to approve a bill that proposes to 
increase spending 16 percent in a single year. That does not even take 
into account the extra spending--another $21 billion--that is to be 
financed out of the budget surplus.
  That is just too much. To put things into perspective, the average 
increase provided by the FY99 spending bills I supported earlier in the 
year amounted to just 0.1 percent--a spending freeze, in effect. If we 
are to keep the budget balanced and preserve our options on how to use 
the budget surplus, we need to follow a more responsible path. This 
bill, with its raid on the budget surplus, represents a dangerous 
return to the old ways of budget-busting, bigger government.
  Mr. President, let me say a few things about the process that spawned 
this bill. Eight of the regular appropriations bills are wrapped into 
this package. A so-called emergency spending bill is attached, bringing 
the total cost of the legislation to over a half-trillion dollars. It 
is massive. It is no way to do the people's business responsibly.
  I recognize that our leadership had little choice but to make the 
best of a bad situation, given President Clinton's propensity to shut 
the government down if he does not get his way. Indeed, one of the 
President's representatives admitted as much to the Majority Leader a 
few weeks ago when he said the White House would shut down the 
government if it was in its political interest to do so. That is 
reprehensible.
  Still, our leadership did manage to secure some very good things in 
this bill--things that I would support if they could be separated out 
and considered on their own merits. Important funding for our nation's 
defense, anti-drug efforts, and increased law enforcement in Indian 
country is included. There are resources for 1,000 new Border Patrol 
agents, provisions to alleviate problems in the implementation of new 
border-security systems, funding for the National Institutes of Health, 
and programs to help victims of domestic violence.
  However, by failing to prioritize spending, the bill simply throws 
more money at bad programs as well as good ones. It is easy to please 
everyone by spending more and more money. Yet that is a sure 
prescription for a return to the customary budget deficits we worked so 
hard to eliminate.
  The fact is, this bill was written by a handful of congressional 
Members and staff and the White House behind closed doors. Most Members 
of Congress have not had a chance to review it, debate it, or offer 
amendments. That means our constituents have been shut out of the 
process. This is a risky and dangerous precedent that I believe we will 
come to regret.
  Mr. President, while there are a number of good items in this bill--
items I support--on balance, I believe it blurs the difference between 
two competing philosophies of government and, as I said before, 
represents a dangerous return to the old ways of budget-busting, bigger 
Government, and less freedom.
  I will vote no.
  Mr. FAIRCLOTH. Mr. President, I rise in support of this legislation. 
There are many good things about this bill. It is not perfect--but we 
shouldn't let the perfect be the enemy of the good. In our 
constitutional process, the Republican majority cannot get everything 
it wants and with a very liberal White House, we are forced to 
compromise in order to keep the Government functioning.
  The most important thing the American people need to know is that 
this year the Congress has balanced the budget for the first time in 30 
years. Next year, in 1999, we will balance it again. Because we have 
stopped the growth of the Federal Government, we finally have stopped 
spending more than we collect, and giving the bill to our children and 
grandchildren to pay in the future.
  Let me discuss the many positive provisions in this bill. First, we 
have increased defense spending for an anti-ballistic missile defense. 
This involves the very core of our national security. And I should 
note, this is the first Congress to increase defense spending since 
1985.
  We have included provisions to reduce the spread of obscene material 
over the Internet. Also, we have doubled the number of Customs agents 
to block child pornography coming in from overseas.
  In an area that I have particularly been interested in, we have 
attached real reforms to the IMF funding, rather than giving funds to 
the IMF with no strings attached as the President would have liked us 
to.
  We have provided funding for new teachers, but maintained local 
control over the hiring--and--we have prevented national Federal 
testing of students.
  We have included seven major proposals to fight the war on drugs. 
Bill Clinton has mocked the seriousness of drug use and it has showed. 
Drug use among teens has been on the rise during the Clinton 
administration.
  We are funding increases in health care research, particularly cancer 
research and breast cancer research. We kept our commitment from last 
year to dramatically increase spending in the fight against cancer. The 
bill also contains a requirement that requires insurance companies to 
cover breast reconstructive surgery for women afflicted with breast 
cancer.
  On the tax side, we have extended the research and development tax 
credit, which is important to North Carolina.
  Further, we are changing the tax laws to permit 100% deductibility of 
health insurance for self employed individuals.
  And this is another important point that is often overlooked by the 
media. This is the first Congress to cut taxes in 16 years. And in this 
bill, we have again reduced taxes for the self employed.
  This is in stark contrast to the Clinton tax increase of 1993, the 
largest in the history of the U.S.
  For North Carolina specifically, there are a number of positive 
provisions. We have received money for a program called LEARN North 
Carolina, which will provide important curriculum information to our 
teachers and classrooms over the Internet throughout North Carolina.
  The Congress again provided funding for the Reading Together program 
which has fifth graders tutoring second graders in reading--it is a 
truly remarkable program that has shown very positive results in 
increasing the reading skills of elementary students.
  The bill provides funding for the North Carolina Center for the 
Prevention of School Violence, in order to reduce violence in schools.

[[Page S12776]]

  We have provided money to save a national landmark, the Cape Hatteras 
Lighthouse.
  The bill will provide additional funding for the North Carolina 
Criminal Justice Information Network, which will help our state 
troopers identify criminal suspects on the spot during traffic steps. 
It will save the lives of our police officers.
  In order to stop crime before it happens, we have provided funding 
for gang resistance in troubled parts of North Carolina.
  For transportation, we have secured $10 million for light rail in the 
Triangle. In Charlotte, we have $3 million for the planning of light 
rail in that booming area of the state.
  For our farmers, unlike the White House proposal, we have made sure 
that North Carolina farmers can receive aid if they are hit by low 
prices. Also, in order to keep our farmers competitive in the global 
marketplace, we have provided millions in agriculture research for 
North Carolina.
  These are just a few of the items that have been secured for our 
state.
  As I said, Mr. President, this is not a perfect bill.
  We are spending too much money under the guise of ``emergency'' 
spending. Under the banner of ``emergency'' spending, we have funds for 
the Bosnian mission, the Year 2000 compliance, farm aid and embassy 
security funds. While we can't desert our troops in Bosnia now, we can 
find other spending cuts to pay for this mission, if it continues. We 
need funds to fix the Year 2000 problem, but we can find other cuts to 
offset this spending. And, we need funds to make our foreign missions 
more secure. I am willing to vote for these new funds now, but I can 
vow that I will seek spending reductions in the next year to offset 
them.
  For this reason, I am also introducing legislation today that would 
require the President to submit a budget next year identifying spending 
cuts so that we can pay for the twenty billion in ``emergency'' 
spending that we have spent in this bill. We must preserve the surplus 
for Social Security, and emergency or no emergency, we have to find 
cuts in government so that we do not fritter away the surplus.
  In conclusion, this bill, on balance, is a bill for a better national 
defense, better schools and better health care. For that reason, I plan 
to support it.


           Olympic and Amateur Sports Act Amendments of 1998

  Mr. STEVENS. Mr. President, this legislation includes the Olympic and 
Amateur Sports Act Amendments of 1998, a bill that Senator Campbell 
joined me in cosponsoring to update the federal charter of the U.S. 
Olympic Committee and the frame-work for Olympic and amateur sports in 
the United States.
  This framework is known as the ``Amateur Sports Act,'' because most 
of its provisions were added by the Amateur Sports Act of 1978 (P.L. 
95-606). The Act gives the U.S. Olympic Committee certain trademark 
protections to raise money--and does not provide recurring 
appropriations--so therefore does not come up for routine 
reauthorization.
  The Amateur Sports Act has not been amended since the comprehensive 
revision of 1978--a revision which provided the foundation for the 
modern Olympic movement in the United States. The bill we will soon 
pass does not fundamentally change the Act because our review showed us 
that is still fundamentally sound. We believe the modest changes we 
will make will ensure that the Act serves the United States well in the 
21st Century.
  The significant changes which have occurred in the world of Olympic 
and amateur sports since 1978 warrant some fine-tuning of the Act. Some 
of the developments of the past 20 years include: (1) that the schedule 
for the Olympics and Winter Olympics has been alternated so that games 
are held every two years, instead of every four--significantly 
increasing the workload of the U.S. Olympic Committee; (2) that sports 
have begun to allow professional athletes to compete in some Olympic 
events; (3) that even sports still considered ``amateur'' have athletes 
who with greater financial opportunities and professional 
responsibilities than we ever considered in 1978; and (4) that the 
Paralympics--the Olympics for disabled amateur athletes--have grown 
significantly in size and prestige.
  These and other changes led me to call for a comprehensive review of 
the Amateur Sports Act in 1994. The Commerce Committee has held three 
hearings since then. At the first and second--on August 11, 1994 and 
October 18, 1995--witnesses identified where the Amateur Sports Act was 
showing signs of strain. We postponed our work until after the 1996 
Summer Olympics in Atlanta, but on April 21, 1997, held a third hearing 
at the Olympic Training Center in Colorado Springs to discuss solutions 
to the problems which had been identified.
  By January, 1998, we'd refined the proposals into possible amendments 
to the Amateur Sports Act, which we discussed at length at an informal 
working session on January 26, 1998 in the Commerce Committee hearing 
room. The bill that Senator Campbell and I introduced in May reflected 
the comments received in January, and excluded proposals for which 
consensus appeared unachievable. With the help of the U.S. Olympic 
Committee, the Athletes Advisory Council, the National Governing 
Bodies' Council, numerous disabled sports organizations, and many 
others, we continued to fine tune the bill until it was approved by the 
Commerce Committee in July.
  I will include a longer summary of the bill for the Record, but will 
briefly explain its primary components: (1) the bill would change the 
title of the underlying law to the ``Olympic and Amateur Sports Act'' 
to reflect that more than strictly amateurs are involved now, but 
without lessening the amateur and grass roots focus reflected in the 
title of the 1978 Act; (2) the bill would add a number of measures to 
strengthen the provisions which protect athletes' rights to compete; 
(3) it would add measures to improve the ability of the USOC to resolve 
disputes--particularly close the Olympics, Paralympics, or Pan-American 
Games--and reduce the legal costs and administrative burdens of the 
USOC; (4) it would add measures to fully incorporate the Paralympics 
into the Amateur Sports Act, and update the existing provisions 
affecting disabled athletes; (5) it would improve the notification 
requirements when an NGB has been put on probation or is being 
challenged; (6) it would increase the reporting requirements of the 
USOC and NGB with respect to sports opportunities for women, 
minorities, and disabled individuals; and (7) it would require the USOC 
to report back to Congress in five years with any additional changes 
that may be needed to the Act.
  Mr. President, I am the only Senator from President Ford's Commission 
on Amateur Sports who is still serving. It has therefore been very 
helpful to have Senator Campbell--an Olympian himself in 1964--involved 
in this process. Over my objection he has included an amendment the 
package to name the Act after me. There are many others who deserve 
recognition for their work to bring about the 1978 Act, and since he 
has prevailed, I will accept this honor on their behalf. I ask 
unanimous consent that my summary of the major components of the bill 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Summary of Major Provisions of Section 142, the Olympic and Amateur 
                     Sports Act Amendments of 1998

       Section 142 of the omnibus bill is based on S. 2119, the 
     Olympic and Amateur Sports Act Amendments of 1998, a bill 
     introduced by Senators Stevens and Campbell on May 22, 1998 
     and approved by the Senate Commerce Committee in July of 
     1998. Summary of major provisions:
       Olympic and Amateur Sports Act--The federal charter of the 
     U.S. Olympic Committee (USOC) and framework for Olympic and 
     amateur sports in the United States is commonly known as the 
     ``Amateur Sports Act'' because most of its provisions were 
     enacted as part of the Amateur Sports Act of 1978 (P.L. 95-
     606). Section 142 would officially rename the underlying Act 
     as the ``Olympic and Amateur Sports Act.'' An amendment by 
     Senator Campbell changed section 142 to rename the underlying 
     Act as the ``Ted Stevens Olympic and Amateur Sports Act.''
       Paralympics--Section 142 incorporates the Paralympics into 
     the Olympic and Amateur Sports Act, so that the Act clearly 
     reflects the equal status between able-bodied and disabled 
     athletes. It continues the original focus of the Act to 
     integrate disabled sports with able-bodied National Governing 
     Bodies (NGB's), but allows the USOC to recognize paralympic 
     sports organizations if integration does not serve the best 
     interest of a

[[Page S12777]]

     sport or if the NGB for the sport objects to integration. The 
     USOC is officially recognized as the national Paralympic 
     committee.
       Athletes--The amendments require the creation of an 
     Athletes' Advisory Council and National Governing Bodies' 
     Council to advise the USOC. The amendments also require that 
     at least 20 percent of the USOC Board be comprised of active 
     athletes. The USOC already carries out these provisions but 
     is not required to do us under existing law. The amendments 
     require the USOC to hire an ombudsman for athletes nominated 
     by the Athletes' Advisory Council who will provide advice to 
     athletes about the Olympic and Amateur Sports Act, the 
     relevant constitution and bylaws of the USOC and NGBs, and 
     the rules of international sports federations and the 
     International Olympic Committee (IOC) and International 
     Paralympic Committee (IPC), and who will assist in mediating 
     certain disputes involving the opportunity of amateur 
     athletes to compete. The amendments also require the NGBs to 
     disseminate and distribute to athletes, coaches, trainers, 
     and others, all applicable rules and any changes to the rules 
     of the NGB, USOC, international sports federation, IOC, IPC, 
     and Pan-American Sports Organization. Section 142 clarifies 
     that NGBs must agree to submit to binding arbitration with 
     respect to opportunity-to-compete issues at the request of 
     the affected athlete under the Commercial Rules of the 
     American Arbitration Association, but gives USOC authority to 
     alter the Commercial Rules with the concurrence of the 
     Athletes' Advisory Council and National Governing Bodies 
     Council, or by a two-thirds vote of the USOC Board of 
     Directors;
       USOC Administrative/Cost Saving--The amendments allow the 
     USOC to remove certain lawsuits against it to federal court. 
     The amendments require the USOC to keep an agent for service 
     of process only in the State of Colorado, rather than all 50 
     States. Under the amendments, the USOC is required to report 
     to Congress only every four years, instead of annually. The 
     report, however, is required to include data on the 
     participation of women, disabled individuals, and minorities. 
     Section 142 protects the USOC against court injunction in 
     selecting athletes to serve on the Olympic, Paralympic, or 
     Pan-American teams within 21 days of those games if the 
     USOC's constitution and bylaws cannot provide a resolution 
     before the games are to begin.
       National Governing Bodies--The amendments in section 142 
     allow the USOC/NGBs not to send to the Olympics, Pan-American 
     Games, or Paralympics athletes who haven't met the 
     eligibility criteria of the USOC and appropriate NGB, even if 
     not sending those athletes will result in an incomplete team. 
     The amendments allow NGBs to establish criteria on a sport-
     by-sport basis for the ``active athletes'' that must comprise 
     at least 20 percent of their boards of directors and other 
     governing boards. Under the amendments, the USOC, AAC, and 
     NGB Council will set guidelines, but an NGB will be able to 
     seek exceptions to the guidelines from the USOC. Section 142 
     includes improved notification and hearing requirements by 
     the USOC when an NGB is being challenged to be replaced or 
     being put on probation.
       Trademark--The amendment gives USOC trademark protection 
     for the Pan-American Games, Paralympics, and symbols 
     associated with each. As passed, it does not grandfather 
     entities which have previously used these words or symbols. 
     However, the USOC is directed not to pursue any actions 
     against entities which already used such words or symbols on 
     the date of the enactment of section 142 until Congress has 
     the opportunity to legislatively address this matter. Section 
     142 also includes a provision to minimize the effects of the 
     trademark protections in the Olympic and Amateur Sports Act 
     on certain businesses in Washington State.
       Special Report--The amendments in section 142 require the 
     USOC to submit a report to Congress at the end of five years 
     on the implementation of the provisions of section 142 and 
     any additional changes the USOC believes are needed to the 
     Olympic and Amateur Sports Act.


                       The American Fisheries Act

  Mr. STEVENS. Mr. President, we've reached agreement to include the 
American Fisheries Act in the legislation being passed today (as title 
II of division C of the bill). This Act will not only complete the 
process begun in 1976 to give U.S. interests a priority in the harvest 
of U.S. fishery resources, but will also significantly decapitalize the 
Bering Sea pollock fishery.
  The Bering Sea pollock fishery is the nation's largest, and its 
present state of overcapacity is the result of mistakes in, and 
misinterpretations of, the 1987 Commercial Fishing Industry Vessel 
Anti-Reflagging Act (the ``Anti-Reflagging Act''). In 1986, as the last 
of the foreign-flag fishing vessels in U.S. fisheries were being 
replaced by U.S.-flag vessels, we discovered that federal law did not 
prevent U.S. flag vessels from being entirely owned by foreign 
interests. We also discovered that federal law did not require U.S. 
fishing vessels to carry U.S. crew members, and that U.S. fishing 
vessels could essentially be built in foreign shipyards under the 
existing regulatory definition of ``rebuild.'' The goals of the 1987 
Anti-Reflagging Act therefore were to: (1) require the U.S.-control of 
fishing vessels that fly the U.S. flag; (2) stop the foreign 
construction of U.S. flag vessels under the ``rebuild'' loophole; and 
(3) require U.S.-flag fishing vessels to carry U.S. crews.
  Of these three goals, only the U.S. crew requirement was achieved. 
The Anti-Reflagging Act did not stop foreign interests from owning and 
controlling U.S. flag fishing vessels. In fact, about 30,000 of the 
33,000 existing U.S.-flag fishing vessels are not subject to any U.S. 
controlling interest requirement. The Anti-Reflagging Act also failed 
to stop the massive foreign shipbuilding programs between 1987 and 1990 
that brought almost 20 of the largest fishing vessels ever built into 
our fisheries as ``rebuilds.'' Today, half of the nation's largest 
fishery--Bering Sea pollock--continues to be harvested by foreign 
interests on foreign-built vessels that are not subject to any U.S.-
controlling interest standard.
  On September 25, 1997, I introduced the American Fisheries Act (S. 
1221) to fix these mistakes. Senators from almost every fishing region 
of the country joined me in support of this effort, including Senator 
Breaux, Senator Hollings, Senator Gregg, Senator Wyden, and Senator 
Murkowski. As introduced, the bill had three primary objectives: (1) 
require the owners of all U.S.-flag fishing vessels to comply with a 75 
percent U.S.-controlling interest standard (similar to the standard for 
other commercial U.S.-flag vessels that operate in U.S. waters); (2) 
remove from U.S. fisheries at least half of the foreign-built factory 
trawlers that entered the fisheries through the Anti-Reflagging Act 
foreign rebuild grandfather loophole and that continued to be foreign-
owned on September 25, 1997; and (3) prohibit the entry of any new 
fishing vessels above 165 feet, 750 tons, or with engines that produce 
greater than 3,000 horsepower.
  I am pleased to report that the package we are approving today 
accomplishes all three of the main objectives of S. 1221 as introduced.
  I wish to thank Senator Gorton for his tremendous effort in this. For 
almost a decade now, he and I have had various disagreements about the 
Bering Sea pollock fishery and issues relating to the Anti-Reflagging 
Act. At the Commerce Committee hearing in March, and later, at an 
Appropriations Committee markup in July, Senator Gorton plainly 
expressed his concerns with S. 1221. In August, however, he spent 
considerable time with representatives from the Bering Sea pollock 
fishery and by sheer will managed to develop a framework upon which we 
could both agree. After he presented the framework to me, we convened 
meetings in September that went around the clock for five days. Those 
meetings included Bering Sea pollock fishery industry representatives, 
industry representatives from other North Pacific fisheries, the State 
of Alaska, North Pacific Council members, the National Marine 
Fisheries, the Coast Guard, the Maritime Administration, environmental 
representatives, and staff for various members of Congress and the 
Senate and House committees of jurisdiction.
  At the end of those meetings, a consensus had been achieved among 
Bering Sea fishing representatives on an agreement to reduce capacity 
in the Bering Sea pollock fishery. For the next three weeks, we drafted 
the legislation to give effect to the agreement, and spent considerable 
time with the fishing industry from other fisheries who were concerned 
about the possible impacts of the changes in the Bering Sea pollock 
fishery. The legislation we are passing today includes many safeguards 
for other fisheries and the participants in those fisheries. By 
delaying implementation of some measures until January 1, 2000, it also 
provides the North Pacific Council and Secretary with sufficient time 
to develop safeguards for other fisheries.
  This legislation is unprecedented in the 23 years since the enactment 
of the Magnuson-Stevens Act. With the council system, Congressional 
action of this type is not needed in the federal fisheries anymore. 
However, the mistakes in the Anti-Reflagging Act and the way it was 
interpreted created unique problems in the Bering Sea pollock fishery 
that only Congress can fix. The North Pacific Council simply does not 
have the authority to turn back the clock

[[Page S12778]]

by removing fishery endorsements, to provide the funds required under 
the Federal Credit Reform Act to allow for the $75 million loan to 
remove capacity, to strengthen the U.S.-control requirements for 
fishing vessels, to restrict federal loans on large fishing vessels, or 
to do many other things in this legislation.
  While S.1221 as introduced was more modest in scope, I believe the 
measures in this agreement are fully justified as a one-time corrective 
measure for the negative effects of Anti-Reflagging Act.
  I ask unanimous consent that the section-by-section analysis I have 
prepared be printed in the Record.
  There being no objection, the summary was ordered to be printed in 
the Record, as follows:

                       Section-by-Section Summary


                               Division A

     Section 120.--Appropriation
       Section 120 appropriates a total of $30 million for the 
     American Fisheries Act and other purposes. Specifically, it 
     provides: (1) $20 million for the federal contribution to the 
     reduction of capacity in the Bering Sea/Aleutian Islands 
     (BSAI) pollock fishery; (2) $750,000 for the cost under the 
     Federal Credit Reform Act of providing a $75 million loan to 
     the fishing industry for the reduction of capacity in the 
     BSAI pollock fishery; (3) $250,000 for the cost under the 
     Federal Credit Reform Act of providing loans totaling $25 
     million to communities that participate in the western Alaska 
     community development quota program to enable those 
     communities to increase their participation in BSAI and other 
     North Pacific fisheries; (4) $1,000,000 for the cost under 
     the Federal Credit Reform Act of providing a loan of up to 
     $100 million to the BSAI crab industry if a fishing capacity 
     reduction program is implemented in that fishery under 
     section 312(b) of the Magnuson-Stevens Act; (5) $6 million to 
     the Secretary of Commerce for the costs of implementing 
     subtitle II of the American Fisheries Act; and (6) $2 million 
     to the Secretary of Transportation, primarily to the Maritime 
     Administration for the costs of implementing subtitle I.


                          Division C--Title II

                    Subtitle I--Fishery Endorsements

     Section 201.--Short Title
       This section establishes the title of the legislation as 
     the ``American Fisheries Act.'' The provisions of title II of 
     division C draw substantially from S. 1221 (also called the 
     American Fisheries Act), which was introduced on September 
     25, 1997, and cosponsored by Senators Breaux, Murkowski, 
     Hollings, Wyden, and Gregg. A hearing to review S. 1221 was 
     held by the Senate Commerce Committee on March 26, 1998, and 
     a related hearing was held by the House Resources Committee 
     on June 4, 1998.
     Section 202.--Standard for Fishery Endorsements
       Subsection (a) of section 202 amends section 12102(c) of 
     title 46, United States Code to require at least 75 percent 
     of the interest in entities that own U.S.-flag vessels in the 
     fishing industry (including fishing vessels, fish tender 
     vessels and floating processors) to be owned and controlled 
     by citizens of the United States. U.S.-flag vessels in the 
     fishing industry that are owned by individuals must be owned 
     by a citizen of the United States under the requirement of 
     section 12102(a)(1) of title 46, which allows only an 
     individual who is a citizen of the United States to own a 
     vessel that is eligible for documentation. Section 12102(c) 
     of title 46, as amended by subsection (a), would require 
     section 2(c) of the Shipping Act, 1916 to be applied in 
     determining whether an entity meets the 75 percent 
     requirement. Section 2(c) of the Shipping Act, 1916 states 
     the following:
       ``Seventy-five per centum of the interest in a corporation 
     shall not be deemed to be owned by citizens of the United 
     States (a) if the title to 75 per centum of its stock is not 
     vested in such citizens free from any trust or fiduciary 
     obligation in favor of any person not a citizen of the United 
     States; or (b) if 75 per centum of the voting power in such 
     corporation is not vested in citizens of the United States; 
     or (c) if, through any contract or understanding, it is so 
     arranged that more than 25 per centum of the voting power in 
     such corporation may be exercised, directly or indirectly, in 
     behalf of any person who is not a citizen of the United 
     States; or (d) if by any other means whatsoever [emphasis 
     added] control of any interest in the corporation in excess 
     of 25 per centum is confered upon or permitted to be 
     exercised by any person who is not a citizen of the United 
     States.''
       The application of section 2(c) is intended to ensure that 
     vessels with a fishery endorsement are truly controlled by 
     citizens of the United States. The amendments made by 
     subsection (a) make clear that the term `corporation' as used 
     in section 2(c) of the Shipping Act, 1916 means a 
     corporation, partnership, association, trust, joint venture, 
     limited liability company, limited liability partnership, or 
     any other entity for the purposes of applying section 2(c) to 
     section 12102(c) of title 46, United States Code.
       Subsection (a) also amends section 12102(c) (by adding a 
     new paragraph (2)) to statutorily prohibit some of the types 
     of control which are impermissible under the standard. A new 
     paragraph (3) would prohibit vessels with a fishery 
     endorsement from being leased to a non-citizen of the United 
     States for use as a fishing vessel (to harvest fish) even if 
     the control requirements are satisfied. A new paragraph (4) 
     would allow a person not eligible to own a vessel with a 
     fishery endorsement to nevertheless have an interest greater 
     than 25 percent in the vessel, if the interest is secured by 
     a mortgage to a trustee who is eligible to own a vessel with 
     a fishery endorsement and who complies with specific 
     requirements in the law and other requirements prescribed by 
     the Secretary, and if the arrangement does not violate the 75 
     percent control requirements.
       Subsection (a) amends section 12102(c) with a new paragraph 
     (paragraph (5)) that would exempt the following vessels from 
     the 75 percent standard, provided the owners of the vessels 
     continue to comply with the fishery endorsement law in effect 
     on October 1, 1998: (1) vessels engaged in fisheries under 
     the authority of the Western Pacific Fishery Management 
     Council; and (2) purse seine vessels engaged in tuna fishing 
     in the Pacific Ocean outside the exclusive economic zone or 
     pursuant to the South Pacific Regional Fisheries Treaty. 
     Fishery endorsements issued by the Secretary for these 
     vessels would be valid only in those specific fisheries and 
     the vessels would not be eligible to receive a fishery 
     endorsement to participate in other fisheries unless the 
     owner complied with the 75 percent standard.
       Paragraph (6) of section 12102(c), as amended by subsection 
     (a), would prevent new large fishing vessels from entering 
     U.S. fisheries, including former U.S.-flag fishing vessels 
     that have reflagged in recent years to fish in waters outside 
     the U.S. exclusive economic zone. Specifically, it would 
     prohibit the issuance of fishery endorsements to vessels 
     greater than 165 feet in registered length, of more than 750 
     gross registered tons, or that have an engine or engines 
     capable of producing a total of more than 3,000 shaft 
     horsepower unless: (1) the vessel had a valid fishery 
     endorsement on September 25, 1997 (the day that S. 1221 
     was introduced), is not placed under foreign registry 
     after the date of the enactment of the American Fisheries 
     Act, and, if the vessel's fishery endorsement is allowed 
     to lapse or is invalidated after the date of the enactment 
     of the American Fisheries Act, an application for a new 
     fishery endorsement is submitted to the Secretary within 
     15 business days; or (2) the owner of the vessel 
     demonstrates to the Secretary that a regional fishery 
     management council has recommended and the Secretary of 
     Commerce has approved specific measures after the date of 
     the enactment of the American Fisheries Act to allow the 
     vessel to be used in fisheries under that council's 
     authority. The regional councils have the authority and 
     are encouraged to submit for approval to the Secretary of 
     Commerce measures to prohibit vessels that receive a 
     fishery endorsement under section 12102(c)(6) from 
     receiving any permit that would allow the vessel to 
     participate in fisheries under their authority, so that a 
     vessel cannot receive a fishery endorsement through 
     measures recommended by one council, then enter the 
     fisheries under the authority of another Council.
       Subsection (b) amends section 31322(a) of title 46, United 
     States Code, to require that a preferred mortgage with 
     respect to a vessel with a fishery endorsement have as a 
     mortgagee only: (1) a person that meets the 75 percent U.S.-
     controlling interest requirement; (2) a state- or federally-
     chartered financial institution that meets a majority (more 
     than 50 percent) U.S.-controlling interest requirement; or 
     (3) a person using a trustee under the authority of, and in 
     compliance with, section 12102(c)(4) of title 46, as amended 
     by this Act.
     Section 203--Enforcement of Standard
       Subsection (a) of section 203 specifies that amendments in 
     section 202 take effect on October 1, 2001, roughly three 
     years from the date of the expected enactment of the American 
     Fisheries Act. As introduced, S. 1221 would have required 
     compliance with the new standard 18 months after enactment. 
     The extended implementation period is intended to provide 
     additional time for the fishing industry to prepare for the 
     new requirements, as well as time for the Secretary of 
     Transportation to prepare to carry out the requirements.
       Subsection (b) requires final regulations to implement 
     subtitle I to be published in the Federal Register by April 
     1, 2000, 18 months before the new requirements go into 
     effect, and requires that the regulations specifically 
     identify: (1) impermissible transfers of ownership or 
     control; (2) transactions that will require prior agency 
     approval; and (3) transactions that will not require prior 
     agency approval. Subsection (b) prohibits the Secretary of 
     Transportation from issuing any letter rulings before 
     publishing the final regulations. It is the intent of 
     Congress that there be a full opportunity for the public to 
     comment on the regulations implementing the new requirements 
     before any decisions are made with respect to specific 
     vessels or vessel owners. During the implementation of the 
     1987 Anti-Reflagging Act, numerous letter rulings were issued 
     by the Coast Guard prior to the publication of final 
     regulations to implement the U.S.-control requirements, which 
     limited the Coast Guard's ability to address valid concerns 
     about the regulations. The implementation process set out in 
     subsection (b) will provide an 18 month period for the 
     Secretary of Transportation to promulgate regulations and 
     fully review public

[[Page S12779]]

     comments, followed by an 18 month period in which the fishing 
     industry can obtain letter rulings before the new 
     requirements take effect to avoid disruptions where possible. 
     This framework allows time for the Secretary of 
     Transportation to consult with Congress if the Secretary has 
     concerns about Congressional intent or identifies any 
     technical or other amendments needed to give full effect to 
     the American Fisheries Act.
       Subsection (c) requires the Maritime Administration 
     (MarAd), rather than the Coast Guard, to administer the new 
     U.S.-ownership and control requirements for vessels 100 feet 
     in registered length and greater. MarAd will use a more 
     thorough process than has been used in the past to ensure 
     compliance with the new requirements. The process will be 
     based on the process for federal loan guarantees and 
     subsidies. The owners of vessels 100 feet and greater will be 
     required to file an annual statement to demonstrate 
     compliance with section 12102(c), based on an existing 
     citizenship affidavit required to be filed under certain 
     MarAd regulations. Paragraph (2) of subsection (c) directs 
     MarAd to rigorously scrutinize transfers of ownership and 
     control of vessels, and identifies specific areas in which 
     MarAd should pay particular attention.
       Subsection (d) directs the Secretary of Transportation to 
     establish the requirements for the owners of vessels less 
     than 100 feet to demonstrate compliance with the new 
     requirements, and allows the Secretary to decide whether the 
     Coast Guard or MarAd should be the implementing agency. 
     Subsection (d) further directs the Secretary to minimize the 
     administrative burden on individuals who own and operate 
     vessels that measure less than 100 feet.
       Subsection (e) directs the Secretary of Transportation to 
     revoke the fishery endorsement of any vessel subject to 
     section 12102(c) of title 46 whose owner does not meet the 
     75-percent ownership and control requirement or otherwise 
     fails to comply with that section.
       Subsection (f) increases the penalties for fishery 
     endorsement violations. Specifically, it would make the owner 
     of a vessel with a fishery endorsement liable for a civil 
     penalty of up to $100,000 for each day the vessel is engaged 
     in fishing if the owner has knowingly falsified or concealed 
     a material fact or knowingly made a false statement or 
     representation when applying for or renewing a fishery 
     endorsement. This increased penalty is intended to discourage 
     willful noncompliance with the new requirements.
       Subsection (g) provides limited exemptions from the new 
     U.S.-control and ownership requirements in section 12102(c) 
     of title 46 for the owners of five vessels (the EXCELLENCE, 
     GOLDEN ALASKA, OCEAN PHOENIX, NORTHERN TRAVELER, and NORTHERN 
     VOYAGER) under certain conditions. It exempts the owners 
     after October 1, 2001 only until more than 50 percent of the 
     interest owned and controlled in the entity that owns the 
     vessel changes. The exemption applies only to the present 
     owners, and the subsection not only requires all subsequent 
     owners to comply the 75 percent standard, but requires even 
     the present owners to comply if more than 50 percent of the 
     interest owned and controlled in that owner changes after 
     October 1, 2001. The exemption also automatically terminates 
     with respect to the NORTHERN TRAVELER or NORTHERN VOYAGER if 
     the vessel is used in a fishery other than under the 
     jurisdiction of the New England or Mid-Atlantic fishery 
     management councils, and automatically terminates with 
     respect to the EXCELLENCE, GOLDEN ALASKA, or OCEAN PHOENIX if 
     the vessel is used to harvest fish.
     Section 204--Repeal of Ownership Savings Clause
       Section 204 would repeal the U.S.-ownership and control 
     grandfather provision of the 1987 Anti-Reflagging Act, which 
     was interpreted by the Coast Guard (and later upheld by the 
     U.S. Court of Appeals for the D.C. Circuit, see 298 U.S. App. 
     D.C. 331) to ``run with the vessel,'' thereby exempting about 
     90 percent of the U.S.-flag fishing industry vessels in 
     existence today from any U.S.-ownership and control 
     requirements. The American Fisheries Act and provisions of 
     section 204 require that the owners of all vessels comply 
     with the new U.S.-ownership and control requirements when 
     those requirements take effect on October 1, 2001 (except as 
     provided in section 12102(c)(5) of title 46, as amended by 
     the American Fisheries Act (Hawaii exemption), and in section 
     203(g) of the American Fisheries Act (five specific 
     vessels)).


                Subtitle II--Bering Sea Pollock Fishery

     Section 205--Definitions
       Section 205 provides definitions for the following terms 
     used in subtitle II: (1) Bering Sea and Aleutian Islands 
     Management Area; (2) catcher/processor; (3) catcher vessel; 
     (4) directed pollock fishery; (5) harvest; (6) inshore 
     component; (7) Magnuson-Stevens Act; (8) mothership; (9) 
     North Pacific Council; (10) offshore component; (11) 
     Secretary; and (12) shoreside processor.
     Section 206--Allocations
       Section 206 establishes new allocations in the pollock 
     fishery in the BSAI beginning in 1999. Subsection (a) 
     requires 10 percent of the total allowable catch of pollock 
     to be allocated as a directed fishing allowance to the 
     western Alaska community development quota program. 
     Subsection (b) requires an additional amount from the total 
     allowable catch to be allocated for the incidental catch of 
     pollock in other groundfish fisheries (including the portion 
     of those fisheries harvested under the western Alaska CDQ 
     program). Of the remainder, subsection (b) requires 50 
     percent to be allocated as a directed fishing allowance for 
     catcher vessels that deliver to shoreside processors, 40 
     percent to be allocated as a directed fishing allowance for 
     catcher/processors and catcher vessels that deliver to 
     catcher/processors, and 10 percent to be allocated as a 
     directed fishing allowance for catcher vessels that deliver 
     to motherships. Section 206 clarifies that the 10 percent of 
     pollock allocated to the western Alaska CDQ program is 
     allocated as a target species, consistent with the present 
     method of allocation and with Congressional intent with the 
     respect to the target species allocations required under 
     section 305(i) of the Magnuson-Stevens Act for the western 
     Alaska CDQ program. The section is intended to ensure the 
     continuation of the present system under which the bycatch in 
     the pollock CDQ fishery and the bycatch in the non-pollock 
     groundfish CDQ fisheries are not counted against the CDQ 
     allocations.
     Section 207--Buyout
       Subsection (a) directs the Secretary of Commerce, using 
     special authority added in 1996 to the title XI loan program, 
     to provide a loan of $75 million to the shoreside processors 
     and catcher vessels that deliver to the shoreside processors 
     to remove fishing capacity from the BSAI pollock fishery. 
     Subsection (b) sets out the terms for the repayment of the 
     loan, requiring the shoreside processors and catcher vessels 
     that deliver to those processors to pay on an equal basis 
     six-tenths (0.6) of one cent per pound of pollock beginning 
     in the year 2000 and continuing until the loan is fully 
     repaid (probably for around 25 years). Subsection (c) 
     authorizes appropriations of an additional $20 million for 
     the removal of fishing capacity from the BSAI pollock 
     fishery, for a total of $95 million.
       Subsection (d) establishes the payment formula for the 
     removal of fishing capacity. Paragraph (1) of subsection (d) 
     requires $90 million to be paid by the Secretary to the 
     owners of the nine catcher/processors (also called factory 
     trawlers) listed in section 209, subject to the conditions 
     that one of the vessels (the AMERICAN EMPRESS) not be used 
     outside of the U.S. exclusive economic zone (EEZ) to harvest 
     stocks that occur within the U.S. EEZ, and that eight of the 
     vessels be scrapped by December 31, 2000. Paragraph (2) of 
     subsection (d) requires the payment of $5 million to either 
     the owners of certain catcher/processors listed in section 
     208(e), or to owners of catcher vessels eligible under 
     section 208(b) and the 20 catcher/processors eligible under 
     section 208(e), depending on whether or not a contract to 
     implement a fishery cooperative has been filed by December 
     31, 1998. These payments totaling $95 million are for the 
     removal of fishing capacity only, and are in no way intended 
     as compensation for any allocation adjustments, nor should 
     they be construed to create any right of compensation for any 
     allocation adjustments or any right, title, or interest in or 
     to any fish in any fishery. Subsection (d) authorizes the 
     Secretary of Commerce to reduce the payments by any amount 
     owed to the federal government which has not been satisfied 
     by the owners of the vessels.
       Subsection (e) allows the Secretary to suspend any or all 
     of the federal fishing permits held by the owners who receive 
     payments under subsection (d) if the vessel identified in 
     paragraph (1) of section 209 is used outside of the U.S. 
     exclusive economic zone (EEZ) to harvest stocks that occur 
     within the U.S. EEZ, or if the other eight catcher/processors 
     identified in section 209 are not scrapped by December 31, 
     2000.
       Subsection (f) allows the repayment period for the $75 
     million loan to the shoreside processors and catcher vessels 
     that deliver to the shoreside processors to be paid back over 
     as many as 30 years. The general authority for fishing 
     capacity reduction loans under the title XI program allows a 
     repayment period of only up to 20 years.
       Subsection (g) directs the Secretary of Commerce to publish 
     proposed regulations to implement the fishing capacity 
     reduction program under title XI and under the Magnuson-
     Stevens Act by October 15, 1998. This program was enacted on 
     October 11, 1996 as part of the Sustainable Fisheries Act 
     (P.L. 104-297), yet the proposed regulations to implement the 
     program have not yet been published for review. Subsection 
     (g) is intended to bring about the expeditious publication of 
     the proposed regulations.
     Section 208--Eligible Vessels and Processors
       Subsection (a) of section 208 establishes the criteria for 
     the catcher vessels that, beginning on January 1, 2000, will 
     be eligible to harvest the pollock allocated under section 
     206(b)(1) for processing by the inshore component. To be 
     eligible a vessel must: (1) have delivered at least 250 
     metric tons of pollock in the BSAI directed pollock fishery 
     (or at least 40 metric tons if the vessel is less than 60 
     feet in length overall) to the inshore component in one of 
     1996 or 1997, or before September 1, 1998; (2) be eligible 
     for a license under the license limitation program; and (3) 
     not be eligible under subsection (b) to deliver pollock to 
     catcher/processors. Any vessel which cannot meet these 
     criteria will be ineligible as of January 1, 2000 to harvest 
     the pollock allocated for processing by the inshore 
     component.
       Subsection (b) lists the particular catcher vessels and 
     establishes criteria for other

[[Page S12780]]

     catcher vessels that, beginning on January 1, 1999, will be 
     eligible to harvest pollock allocated under section 206(b)(2) 
     for processing by catcher/processors. In addition to the 
     seven listed vessels, any catcher vessel which (1) delivered 
     at least 250 metric tons and at least 75 percent of the 
     pollock it harvested in the BSAI directed pollock fishery to 
     catcher processors in 1997, and (2) is eligible for a license 
     under the license limitation program, will also be eligible 
     as of January 1, 1999 to harvest pollock allocated for 
     processing by catcher/processors. Any vessel which is not 
     listed or cannot meet these criteria will be ineligible as of 
     January 1, 1999 to harvest the pollock allocated for 
     processing by catcher/processors.
       Subsection (c) lists the particular catcher vessels and 
     establishes criteria for other catcher vessels that, 
     beginning on January 1, 2000, will be eligible to harvest 
     pollock allocated under section 206(b)(3) for processing by 
     motherships. In addition to the twenty listed vessels, any 
     catcher vessel which (1) delivered at least 250 metric tons 
     of pollock from the BSAI directed pollock fishery to 
     motherships in one of 1996 or 1997, or before September 1, 
     1998, (2) is eligible for a license under the license 
     limitation program, and (3) is not eligible under subsection 
     (b) to deliver pollock to catcher/processors, will also be 
     eligible as of January 1, 2000 to harvest pollock allocated 
     for processing by motherships. Any vessel which is not listed 
     or cannot meet these criteria will be ineligible as of 
     January 1, 2000 to harvest the pollock allocated for 
     processing by motherships.
       Subsection (d) lists the three motherships that will be 
     eligible beginning on January 1, 2000 to process the pollock 
     allocated under section 206(b)(3). Any vessel which is not 
     listed will be ineligible as of January 1, 2000 to process 
     the pollock allocated for processing by motherships in the 
     BSAI directed pollock fishery.
       Subsection (e) lists the particular catcher/processors 
     that, beginning on January 1, 2000, will be eligible to 
     harvest pollock allocated under section 206(b)(2) for 
     processing by catcher/processors. In addition to the twenty 
     vessels listed, under paragraph (21) of subsection (e), any 
     catcher/processor which harvested more than 2,000 metric tons 
     of pollock in the BSAI directed pollock fishery in 1997, and 
     is eligible for a license under the license limitation 
     program, will be eligible to harvest a small portion of the 
     pollock allocated under section 206(b)(2). The vessel or 
     vessels eligible under paragraph (21) are prohibited from 
     harvesting more than one-half percent in the aggregate of the 
     pollock allocated under subsection 206(b)(2). This provision 
     is intended to allow a small number of catcher/processors 
     (perhaps as few as one) to continue to harvest the relatively 
     small amount of pollock they harvested in the past while 
     relying primarily on other fisheries. The last sentence of 
     subsection (e) would allow the catcher/processors listed in 
     paragraphs (1) through (20) to continue to be eligible for a 
     fishery endorsement even if it is ultimately determined that 
     the vessel did not satisfy the foreign rebuild grandfather 
     provisions of the 1987 Anti-Reflagging Act--provided that the 
     owner of the vessel complies with all other requirements for 
     a fishery endorsement. The removal of nine catcher/processors 
     in section 209 is intended to address the overcapacity 
     concerns that resulted from the entry under the Anti-
     Reflagging Act of foreign built vessels contrary to 
     Congressional intent.
       Subsection (f) establishes the criteria for shoreside 
     processors to which the catcher vessels eligible under 
     section 208(a) may deliver pollock from the BSAI directed 
     pollock fishery beginning on January 1, 2000. To be eligible, 
     a shoreside processor (which may include moored vessels) must 
     have processed more than 2,000 metric tons of pollock in the 
     inshore component of the BSAI directed pollock fishery during 
     each of 1996 and 1997. Any shoreside processor that processed 
     pollock in the inshore component in 1996 or 1997, but 
     processed less than 2,000 metric tons, would be allowed under 
     paragraph (1)(B) to continue processing up to 2,000 metric 
     tons per year after January 1, 2000. Paragraph (2) of 
     subsection (f) would allow the North Pacific Council to 
     recommend (and the Secretary to approve) the entry of 
     additional shoreside processors to process the allocation 
     under section 206(b)(1) if the total allowable catch for 
     pollock increases by more than 10 percent above the 1997 
     total allowable catch, or if any of the shoreside processors 
     eligible to process more than 2,000 metric tons is lost.
       Subsection (g) establishes requirements for the replacement 
     of any of the vessels eligible to harvest pollock under 
     section 208 if the vessel is lost by an event other than the 
     willful misconduct of the owner or agent of the owner.
       Subsection (h) allows vessels and shoreside processors for 
     which an application for eligibility under section 208 has 
     been filed to be allowed to participate in the BSAI directed 
     pollock fishery until the Secretary of Commerce can make a 
     final determination about the eligible of the vessel or 
     shoreside processor. This subsection is intended to minimize 
     disruptions in the event the Secretary is unable to complete 
     determinations for all vessels and processors prior to the 
     effective dates of the eligible criteria.
       Subsection (i) clarifies that eligibility under section 208 
     does not confer any right of compensation if the eligibility 
     is subsequently revoked or limited, does not create any right 
     to any fish in any fishery, and does not waive any provision 
     of law otherwise applicable to an eligible vessel or 
     shoreside processor. Section 208 simply prevents the 
     participation of vessels and shoreside processors not listed 
     or that do not meet the eligibility criteria, and ineligible 
     vessels and shoreside processors similarly have no right of 
     compensation or right to any fish of any kind.
     Section 209--List of Ineligible Vessels
       Section 209 identifies nine catcher/processors that, 
     effective December 31, 1998, are permanently ineligible for 
     fishery endorsements. Section 209 also extinguishes all 
     claims associated with the vessels that could qualify the 
     owners of the vessels for any limited access system 
     permit.
     Section 210--Fishery Cooperative Limitations
       Subsection (a) of section 210 requires all contracts 
     implementing a fishery cooperative in the BSAI directed 
     pollock fishery and all material modifications to those 
     contracts to be filed with the North Pacific Council and 
     Secretary of Commerce, and requires information about the 
     contracts to be made available to the public. With the 
     limitations in section 208 on further entry into the BSAI 
     directed pollock fishery, the American Fisheries Act 
     increases the likelihood that fishery cooperatives will be 
     formed under the 1934 Act (15 U.S.C. 521 et seq.) that allows 
     fishermen to ``act together . . . in collectively catching, 
     producing, preparing for market, processing, handling, and 
     marketing'' fish and fish products without being subject to 
     federal anti-trust laws. The 1934 Act does not require the 
     public disclosure of the details from contracts implementing 
     fishery cooperatives, nor does it include many of the other 
     restrictions and limitations in section 210 that would apply 
     to fishery cooperatives in the BSAI directed pollock fishery. 
     Subsection (a) will require at a minimum the public 
     disclosure of the parties to the contract, the vessels 
     involved, the amount of fish each vessel is expected to 
     harvest, and, after the fishing season, the amount of fish 
     (including bycatch) each vessel actually harvested. In 
     addition, the North Pacific Council and Secretary may require 
     other information that they deem appropriate from 
     participants in a fishery cooperative for public disclosure.
       Subsection (b) allows the catcher vessels that deliver 
     pollock to shoreside processors to form fishery cooperatives 
     with fewer than the whole class of vessels eligible under 
     section 208(a) so that they will be able to compete in the 
     event that fishery cooperatives are formed in the other BSAI 
     directed pollock fishery sectors which have fewer vessels. 
     Paragraph (1) requires the Secretary to establish a separate 
     allocation within the allocation under section 206(b)(1) if 
     at least 80 percent of the catcher vessels that delivered 
     most of their pollock in the previous year to a shoreside 
     processor decide to form a fishery cooperative to deliver 
     pollock to that shoreside processor and that processor has 
     agreed to process the pollock. The allocation for those 
     vessels would be equal to the average percentage those 
     vessels caught in the aggregate in 1995, 1996, and 1997. If a 
     fishery cooperative is formed, other catcher vessels that 
     delivered most of the their catch to that shoreside processor 
     would be required to be allowed to join the fishery 
     cooperative under the same terms and conditions as other 
     participants at any time before the calendar year in which 
     fishing under the cooperative will begin. Vessels which 
     participate in a fishery cooperative will not be allowed to 
     harvest any of the pollock that remains in the ``open 
     access'' portion of the allocation under section 206(b)(1). 
     The ``open access'' portion will be equal to the average 
     percentage that the vessels which do not elect to participate 
     in fishery cooperatives caught in the aggregate in 1995, 
     1996, and 1997. The vessels eligible to harvest pollock 
     allocated for processing by shoreside processors would 
     continue to have the authority to form a fishery cooperative 
     on a class-wide basis as well.
       Subsection (c) requires at least 8.5 percent of the pollock 
     allocated under section 206(b)(2) for processing by catcher/
     processors to be available for harvesting by the catcher 
     vessels eligible under section 208(b). This requirement will 
     help ensure that the traditional harvest of those catcher 
     vessels will not be reduced. The catcher vessels may 
     participate in a fishery cooperative with the 20 catcher/
     processors eligible under section 208(e), but may participate 
     during 1999 only if the contract implementing the fishery 
     cooperative includes penalties to prevent the catcher vessels 
     from exceeding their traditional harvest levels in other 
     fisheries. Under a fishery cooperative, vessel owners have 
     more control over the time during which they will fish, and 
     without these provisions in 1999, the catcher vessels could 
     target other fisheries during the time they would 
     traditionally be participating in the BSAI directed pollock 
     fishery. By the year 2000, the North Pacific Council will 
     have been able to recommend (and the Secretary to approve) 
     any measures needed to protect other fisheries.
       Subsection (d) extends the 1934 fishery cooperative 
     authority to motherships for purposes of processing pollock 
     if 80 percent of the catcher vessels eligible to harvest the 
     pollock allocated for processing by motherships decide to 
     form a fishery cooperative. The possible extension of this 
     authority would not begin until January 1, 2000, and would 
     remain in effect only for the duration of the contract 
     implementing the fishery cooperative. If a fishery 
     cooperative is formed, other catcher vessels eligible to 
     harvest the pollock allocated for processing by

[[Page S12781]]

     motherships would be required to be allowed to join the 
     fishery cooperative under the same terms and conditions as 
     other participants at any time before the calendar year in 
     which fishing under the cooperative will begin.
       Subsection (e) prohibits any individual or any single 
     entity from harvesting more than 17.5 percent of the pollock 
     in the BSAI directed pollock fishery to ensure competion. 
     Presently in that fishery, a single entity in that fishery 
     harvests close to 30 percent of the pollock in the BSAI 
     directed pollock fishery. In addition, paragraph (2) of 
     subsection (e) directs the North Pacific Council to establish 
     an excessive share cap for the processing of pollock in the 
     BSAI directed pollock fishery. Paragraph (3) requires any 
     individual or entity believed by the North Pacific Council or 
     Secretary to have exceeded the harvesting or processing caps 
     to submit information to MarAd, and requires MarAd make a 
     determination as soon as possible. If an individual or entity 
     owns 10 percent or more of another entity, they will be 
     considered to be the same entity as that other entity for the 
     purposes of the harvesting and processing caps.
       Subsection (f) requires contracts that implement fishery 
     cooperatives in the BSAI directed pollock fishery to include 
     clauses under which the participants will pay landing taxes 
     established under Alaska law for pollock that is not landed 
     in the State of Alaska. The failure to include the clause or 
     to pay the landing taxes results in the permanent revocation 
     of the authority to form fishery cooperatives under the 1934 
     Act for the parties to the contract implement the fishery 
     cooperative and the vessels involved in the fishery 
     cooperative.
       Subsection (g) specifies that the violation of any of the 
     provisions of section 210 (fishery cooperative limitations) 
     or section 211 (protections for other fisheries and 
     conservation measures) constitutes a violation of the 
     prohibited acts section of the Magnuson-Stevens Act and is 
     subject to the civil penalties and permit sanctions under 
     section 308 of the Magnuson-Stevens Act. In addition, 
     subsection (g) specifies that any person found to have 
     violated either of section 210 or 211 is subject to the 
     forfeiture of any fish harvested or processed during the 
     commission of the violation.
     Section 211--Protections for Other Fisheries; Conservation 
         Measures
       Subsection (a) of section 211 directs the North Pacific 
     Council to submit measures for the consideration and approval 
     of the Secretary of Commerce to protect other fisheries under 
     its authority and the participants in those fisheries from 
     adverse impacts caused by the subtitle II of the American 
     Fisheries Act or by fishery cooperatives in the BSAI directed 
     pollock fishery. The Congress intends for the North Pacific 
     Council to consider particularly any potential adverse 
     effects on fishermen in other fisheries resulting from 
     increased competition in those fisheries from vessels 
     eligible to fish in the BSAI directed pollock fishery or in 
     fisheries resulting from any decreased competition among 
     processors.
       Subsection (b) includes specific measures to restrict the 
     participation in other fisheries of the catcher/processors 
     eligible to participate in the BSAI directed pollock fishery 
     (other than the vessel or vessels eligible under paragraph 
     (21) of section 208(e)). While these types of limitations are 
     appropriately for the North Pacific Council to develop, the 
     catcher/processors eligible under section 208(e) may form a 
     fishery cooperative for 1999 before the North Pacific Council 
     can recommend (and the Secretary approve) necessary 
     limitations. The restrictions in subsection (b) would 
     therefore take effect on January 1, 1999 and remain in effect 
     thereafter unless the North Pacific Council recommends and 
     the Secretary approves measures that supercede the 
     restrictions. Subparagraphs (A) and (B) of paragraph (2) 
     prohibit the catcher/processors eligible to participate in 
     the BSAI directed pollock fishery from exceeding the 
     aggregate amounts of targeted species and bycatch in other 
     fisheries that catcher/processors from the BSAI directed 
     pollock fishery caught on average in 1995, 1996, and 1997. 
     Subparagraph (C) prohibits those catcher/processors from 
     fishing for Atka mackerel in the eastern area of the BSAI or 
     from exceeding specific percentages in the central area or 
     western area. The limitations in subparagraphs (A), (B), and 
     (C) do not ensure that the BSAI pollock-eligible catcher/
     processors will be able to harvest any amount of fish, they 
     simply establish additional caps after which those catcher/
     processors, as a class, will be prohibited from further 
     fishing.
       Paragraph (3) of section 211(b) prohibits the catcher/
     processors eligible to participate in the BSAI directed 
     pollock fishery from processing any of the pollock allocated 
     for processing by motherships or shoreside processors in the 
     BSAI directed pollock fishery and from processing any species 
     of crab harvested in the BSAI. Paragraph (4) prohibits the 
     BSAI pollock-eligible catcher/processors from harvesting any 
     fish in the Gulf of Alaska, from processing any groundfish 
     harvested in area 630 of the Gulf of Alaska, from processing 
     any pollock in the Gulf of Alaska other than as bycatch, and 
     from processing in the aggregate a total of more than 10 
     percent of the cod harvested in areas 610, 620, and 640 of 
     the Gulf of Alaska. Paragraph (5) prohibits BSAI-eligible 
     catcher/processors and motherships from harvesting or 
     processing fish in any fishery under the authority of another 
     regional fishery management council unless the council 
     authorizes their participation, with the exception of the 
     Pacific whiting fishery under the Pacific Council's 
     authority, where the catcher/processors and motherships are 
     already participating.
       Paragraph (6) of section 211(b) requires the BSAI pollock 
     eligible catcher/processors to carry two observers on board 
     and to install scales on board and weigh all fish harvested 
     by the vessel while participating in pollock and other 
     groundfish fisheries under the North Pacific Council's 
     authority. The requirements of paragraph (6) take effect in 
     1999 for catcher/processors that will harvest pollock 
     allocated to the western Alaska community development quota 
     program, and in 2000 for the other BSAI pollock-eligible 
     catcher/processors.
       Subsection (c) of section 211 requires the North Pacific 
     Council to submit measures by July 1, 1999 to prevent the 
     expanded participation of BSAI pollock-eligible catcher 
     vessels in other fisheries as a result of BSAI pollock 
     fishery cooperatives and to protect processors in other 
     fisheries from any adverse effects caused by subtitle II of 
     the American Fisheries or by BSAI pollock fishery 
     cooperatives. Paragraph (1) of subsection (c) allows the 
     Secretary to restrict or change the BSAI pollock fishery 
     cooperative authority for catcher vessels delivering to 
     shoreside processors (including by allowing those vessels to 
     deliver to shoreside processors other than those which are 
     BSAI pollock-eligible) if the North Pacific Council does not 
     recommend measures by July 1, 1999 or if the Secretary 
     determines that those measures are not adequate.
       Paragraph (2)(A) prohibits the BSAI pollock-eligible 
     motherships and shoreside processors from processing in the 
     aggregate more crab in fisheries under the North Pacific 
     Council's authority than the percentage of crab those 
     motherships and shoreside processed in the fishery in the 
     aggregate and on average in 1995, 1996, and 1997. The intent 
     of paragraph (2) is to protect processors that are not BSAI 
     pollock-eligible from increased competition from the 
     shoreside processors who may have a financial advantage as a 
     result of the increased pollock allocation under the American 
     Fisheries Act or by receiving pollock under a fishery 
     cooperative. Paragraph (2)(B) directs the North Pacific 
     Council to establish excessive share harvesting and 
     processing caps in the BSAI crab and non-pollock groundfish 
     fisheries for similar purposes.
       Paragraph (3) of subsection (c) directs the Pacific Council 
     to submit any measures that may be necessary to protect 
     fisheries under its authority by July 1, 2000 and allows the 
     Secretary of Commerce to implement measures if the Pacific 
     Council does not submit measures or if the measures submitted 
     are determined by the Secretary to be inadequate.
       Subsection (d) give the North Pacific Council the authority 
     with approval of the Secretary to publically disclose 
     information on a vessel-by-vessel basis from any of the 
     groundfish fisheries under the Council's authority that may 
     be useful in carrying out the requirements of the Magnuson-
     Stevens Act which require the avoidance of bycatch. The North 
     Pacific Council is directed to use this new authority to the 
     maximum extent necessary to fully implement the bycatch 
     measures added to the Magnuson-Stevens Act by the 1996 
     Sustainable Fisheries Act.
       Subsection (e) creates a special federal loan program 
     within the existing title XI loan program to allow 
     communities eligible to participate in the western Alaska 
     community development quota program to increase their 
     participation in the Bering Sea pollock fishery by purchasing 
     all or part of an ownership interest in vessels and shoreside 
     processors.
     Section 212--Restriction on Federal Loans
       Section 212 amends the title XI loan program to prohibit 
     federal loans for the construction or rebuilding of vessels 
     that will be used to harvest fish and that are greater than 
     165 feet, of more than 750 tons, or that have an engine or 
     engines capable of producing a total of more than 3,000 shaft 
     horsepower. The prohibition does not apply to vessels to be 
     used only in the menhaden fishery or a tuna purse seine 
     fishery outside the U.S. EEZ or in the area of the South 
     Pacific Regional Fisheries Treaty.
     Section 213--Duration
       Subsection (a) of section 213 explains that the provisions 
     of the American Fisheries Act take effect upon its enactment, 
     except where other effective dates are specified. The 
     allocations in section 206, BSAI pollock eligibility 
     criteria/lists of vessels in section 208, and fishery 
     cooperative limitations in section 210 remain in effect only 
     until December 31, 2004, and are repealed on that date except 
     to the extent the North Pacific Council has recommended, and 
     the Secretary has approved measures to give effect to those 
     sections thereafter.
       Subsection (b) clarifies that except as specifically 
     provided, none of the provisions in subtitle II of the 
     American Fisheries Act limit the authority of the North 
     Pacific Council or the Secretary of Commerce under the 
     Magnuson-Stevens Act. Subsection (c) sets out specific 
     circumstances under which the North Pacific Council may 
     submit measures to supersede provisions of subtitle II. The 
     Council may submit measures to supersede any of the 
     provisions of subtitle II, with the exception of the 
     provisions of section 206 (BSAI pollock allocations) and 
     section 208 (eligibility criteria/vessels), for conservation

[[Page S12782]]

     purposes, to mitigate adverse effects in other fisheries or 
     in the BSAI pollock fishery, or to mitigate adverse effects 
     on the participants in the BSAI directed pollock fishery that 
     only own only one or two vessels. If the Council does submit 
     such measures, the measures must take into account all 
     factors affecting the fisheries and be imposed fairly and 
     equitably to the extent practicable among and within the 
     sectors in the BSAI directed pollock fishery. With respect to 
     the allocations in section 206, the Council may submit 
     measures to increase the allocation to the western Alaska 
     community development quota program for the year 2002 and 
     thereafter if the Council determines that the program has 
     been adversely affected by any provision of subtitle II of 
     the American Fisheries Act. To the extent of its authority 
     under the Magnuson-Stevens Act, the Council has general 
     authority to submit measures that affect or supersede the 
     fishery cooperative limitations in section 210. Paragraph (3) 
     of section 213(c) identifies the specific authority of the 
     Council to submit different catch-year criteria for the 
     calculation of the allocations for catcher vessels that 
     deliver to shoreside processors and that form fishery 
     cooperatives.
       Subsection (d) requires the North Pacific Council to report 
     to the Secretary of Commerce and to the Congress by October 
     1, 2000 on the implementation and effects of subtitle II of 
     the American Fisheries Act.
       Subsection (e) requires the General Accounting Office to 
     submit a report to the North Pacific Council and the 
     Secretary of Commerce by June 1, 2000 on whether subtitle II 
     of the American Fisheries Act has negatively affected the 
     market for fillet or fillet blocks, and requires the North 
     Pacific Council to submit for Secretarial approval any 
     measures it determines appropriate to mitigate any negative 
     effects that have occurred.
       Section (f) specifies that if any of the provisions of the 
     American Fisheries Act are held to be unconstitutional, the 
     remainder of the Act shall not be affected.
       Section (g) specifies that in the event the new U.S. 
     ownership and control requirements or preferred mortgage 
     requirements of subtitle I of the American Fisheries Act are 
     deemed to be inconsistent with an existing international 
     agreement relating to foreign investment with respect to a 
     specific owner or mortgagee on October 1, 2001 of a vessel 
     with a fishery endorsement, that the provision shall not 
     apply to that specific owner or mortgagee with respect to 
     that particular vessel to the extent of the inconsistency. 
     Section (g) does not exempt any subsequent owner or mortgagee 
     of the vessel, and is therefore not an exemption that ``runs 
     with the vessel.'' In addition, the exemption in section (g) 
     ceases to apply even to the owner on October 1, 2001 of the 
     vessel if any ownership interest in that owner is acquired by 
     a foreign individual or entity after October 1, 2001.
       Customary international law and the United Nations 
     Conference on the Law of the Sea (article 62) clearly protect 
     the right of a coastal nation to harvest the living resources 
     of its exclusive economic zone. Many of the bilateral 
     treaties to which the United States is a party that might 
     otherwise involve U.S. fisheries or investments in U.S. 
     fisheries include specific exemptions for fishing vessels and 
     for measures to protect the fishery resources. For example, 
     the Treaty of Friendship, Commerce, and Consular Rights 
     between the United States and the Kingdom of Norway (1932) 
     provides that ``[n]othing in this Treaty shall be construed 
     to restrict the right of either [the United States or Norway] 
     to impose, on such terms as it may see fit, prohibitions or 
     restrictions designed to protect human, animal, or plant 
     health or life'' (emphasis added). The Treaty and Protocol 
     between the United States and Japan Regarding Friendship, 
     Commerce, and Navigation (1953) provides that 
     ``Notwithstanding any other provision of the present Treaty, 
     each Party may reserve exclusive rights and privileges to its 
     own vessels with respect to the coasting trade, national 
     fisheries, and inland navigation'' (Article XIX(6); emphasis 
     added). Similarly, the Agreement between the United States 
     and the Republic of Korea Regarding Friendship, Commerce, and 
     Navigation (1957) provides that ``each Party may reserve 
     exclusive rights and privileges to its own vessels with 
     respect to the coasting trade, inland navigation, and 
     national fisheries'' (Article XIX(3); emphasis added).
       While Congress does not believe that any of the 
     requirements of the American Fisheries Act violate any 
     international agreements relating to foreign investment to 
     which the United States is a party, subsection (g) is 
     included as a precaution. If the citizenship or preferred 
     mortgage requirements in subtitle I are deemed to be 
     inconsistent with such an international agreement, only the 
     current owner on October 1, 2001 to which the international 
     agreement applies will be grandfathered, and to the extent 
     that any interest in that owner/entity is sold, the interest 
     must be sold to citizens of the United States until the 
     owner/entity comes into compliance with the 75 standard.

  Mr. HARKIN. Mr. President, the legislation that is pending provides 
funding for nearly all domestic discretionary programs for the upcoming 
year. As we know, it combines 8 of the 13 regular spending bills, as 
well as a large number of other unrelated legislative provisions.
  It truly is a legislative behemoth, and is one which I have very 
mixed feelings about. One part I don't have any mixed feelings about is 
the process, particularly for the unrelated nonappropriation measures. 
It is the worst that I have witnessed in my years in Congress. Here we 
have a 40-pound, nearly 4,000-page bill which not only includes over 
half of the year's appropriations bills, but countless other unrelated 
measures, many of which were never debated and never brought to the 
floor of the Senate. Then we are given less than a day--just a matter 
of hours--to look it over.
  That certainly is not any way to do the people's business. In fact, I 
say that the Republican leadership in the Senate and the House has 
shown a tremendous disrespect for the taxpayers' dollars.
  This is really a cavalier treatment of taxpayers dollars when you 
think about the way this bill was put together. Nobody knows how much 
is in there. Billions of dollars are being spent, and a lot of it was 
never debated or shown the light of day in either the House or the 
Senate. The taxpayers deserve a little bit better treatment for their 
tax dollars than that.
  Before I get into my other concerns, I want to speak about what I see 
as one of the true bright spots, which will lead me to vote in favor of 
the overall measure, even with all my misgivings about it, and that is 
the progress it makes toward improving the quality and affordability of 
education, health care and job training for American families.
  As the ranking member on the Appropriations Subcommittee on the 
Department of Health and Human Services and Education, I want to focus 
my comments initially on that section of the bill.
  First, I want to thank Senator Specter for his outstanding leadership 
on the legislation. He has worked tirelessly to put together a strong, 
bipartisan bill. I want to publicly thank Bettilou Taylor, Jim 
Sourwine, Jack Chow, Mary Deitrich, Mark Laisch and Jennifer Stiefel. I 
also thank those on my staff, on the minority side--Marsha Simon and 
Ellen Murray--for their long and hard work in taking care of all of the 
important details of the legislation. They literally have been here 
around the clock for the last several weeks putting the bill and report 
together.
  I also extend my sincere appreciation to our colleagues in the 
House--Chairman Porter and ranking member Obey. There were many 
significant differences between our two bills and it required much work 
to bridge the gulf. I appreciate their willingness to work with us to 
craft a strong Labor-HHS-Education bill to send to the President.
  The Labor-HHS-Education component of this bill is notable in a number 
of areas. It makes many vital investments in the human infrastructure 
of our Nation.
  Mr. President, I am very pleased that the bill before us provides the 
biggest funding increase in history in our search for medical 
breakthroughs. Almost every day, the paper has a new story about one 
advance or another in medical research. New therapies, more effective 
intervention and treatment strategies--we are making great progress. We 
aren't suffering from a shortfall of ideas, but a shortfall of 
resources.
  At the present time, the National Institutes of Health is able to 
fund only one-fourth of their peer-reviewed grant proposals. As a 
result, too many worthy projects never get off the ground. The tragedy 
is that the 3 of 4 unfunded grants could have led to a cure for breast 
cancer, or a more effective treatment for Parkinson's disease, or a way 
to reverse spinal chord injury.
  This must change, and the pending legislation provides a generous 15 
percent increase for the NIH and is the first step toward doubling the 
budget for biomedical research.
  Another important victory for improved health is the inclusion of a 
proposal I authored to substantially improve research on complementary 
and alternative medicine. Consumers need and deserve reliable 
information about these promising therapies. And, if appropriately 
implemented, the new National Center for Complementary and Alternative 
Medicine at NIH will provide just that.
  Mr. President, one of the great disappointments of the 105th Congress 
was the defeat by the Republican leadership of comprehensive 
legislation to protect

[[Page S12783]]

children from tobacco. Their action is costly: Every day, more than 
3,000 young people will start smoking, and one-third will die 
prematurely from tobacco-related diseases.
  I am pleased, however, that the bill before us makes at least a very 
modest downpayment on fighting tobacco. It provides $46 million to fund 
antitobacco activities--the largest increase for preventing and 
treating the addiction, disease, and death caused by tobacco use. The 
CDC will receive additional funding to help communities keep tobacco 
products out of the hands of children, help smokers kick the habit, and 
combat the tobacco industry's daily multimillion dollar misinformation 
campaigns.
  I want to be clear, however, that this is by no means a replacement 
for comprehensive reform. We should make reform of the tobacco scourge 
a major agenda item for the next Congress.
  Another important drug problem--and tobacco is a drug problem--facing 
us in this Nation is the scourge of methamphetamine. It is ravaging my 
State and other States in the Midwest. So I am pleased that the bill 
before us includes my proposal to expand support for prevention and 
treatment of meth addiction. It also contains a significant increase to 
boost our law enforcement efforts to combat this problem. But I am 
extremely disappointed that the leadership blocked inclusion of my 
Comprehensive Methamphetamine Control Act. Their action, I think, is 
extremely shortsighted and is a defeat for our efforts to get tougher 
on methamphetamine.
  The bill before us includes the important initiative to combat fraud, 
waste and abuse in Medicare. It would expand nationwide a program I 
started 2 years ago to train retired nurses, doctors, accountants, 
insurance writers, and other professionals to be expert resources in 
their local communities to help fellow seniors identify and report 
suspect cases of abuse. The Senior Waste Patrol, as it is known, has 
been a great success in Iowa and the 11 other States in which it now 
exists on a pilot program basis. This bill, as I said, will extend the 
Senior Waste Patrol to every State in the Nation. I believe it will be 
one of the keys that we will have in really cutting down on the waste, 
fraud and abuse that is so rampant in Medicare.
  Mr. President, for the last several years, I have worked to eradicate 
abusive child labor around the world, and I am pleased that the 
legislation provides resources to help end this exploitative practice 
here at home and around the world.
  The bill signals a strong commitment by the United States to ending 
this unconscionable practice of child labor by providing a $27 million 
increase, from $3 million to $30 million, to the International 
Programme for the Elimination of Child Labor, otherwise known as IPEC. 
In the past, IPEC initiatives have been instrumental in reaching 
agreements in Bangladesh for child garment workers, and in Pakistan for 
the children making soccer balls. As a result, thousands of these 
children in both countries have been moved from factories to schools. 
This increase for IPEC will ensure that we can do in those countries 
and in other countries to get child laborers out of factories and into 
schools.
  However, if we intend to lead the world in ending this terrible 
practice of child labor, we must here lead by example. I am deeply 
concerned about the rising incidence of child labor in our own country. 
Although no official estimate exists, studies place the number of 
illegally employed children in the U.S. at between 300,000 a 800,000. 
To respond to the problem, this legislation has fully funded the 
President's child labor initiative by providing $15 million for migrant 
education and $5 million for at-risk youth in agriculture. 
Additionally, $4 million was added for 36 new investigators to enforce 
child labor laws. We must make eradication of child labor a top 
priority, and these resources will make that possible.
  I do want to publicly thank and compliment Secretary of Labor Herman 
for her leadership in this area and for her focus and determination to 
crack down on the use of child labor in our country. She has taken 
great leadership on this. The additional funding we put in this bill 
will enable her to do her job even more effectively.
  Mr. President, this legislation makes some significant investments in 
education, which are critical to the future of our country. The bill 
provides an additional $2.1 billion--that's $2.1 billion more than last 
year--to improve our Nation's schools and help them meet the needs of 
our schoolchildren.
  There are many problems facing our nation's schools. 14 million 
students attend classes in schools that are literally crumbling around 
them; too many students are in classes that are too big; and too many 
children do not have a safe place to be in the hours after school. We 
can and must address these important matters.
  The pending legislation provides us with a good foundation. The bill 
provides additional resources through the Title I program to reduce 
class size and it fully funds the President's after-school initiative.
  However, I was disappointed that we could not hold on to the funds 
provided in the Senate bill to help modernize and repair our nation's 
crumbling schools.
  I might add that I just came back, like so many Senators, last night 
from my home State to discover that in my State of Iowa over one-
third--36 percent--of the elementary and secondary schools in Iowa 
don't even meet the fire and safety codes. I know that our State is 
very good. If it is that bad in Iowa, it has to be bad in other States, 
too.
  That is why the money is needed so desperately from the Federal 
Government--to help rebuild the infrastructure of our schools, not just 
in meeting the fire and safety codes but to make sure that they are 
wired, that they get the technology that they need to hookup to the 
Internet, and to get the technology to our kids in elementary and 
secondary schools.
  The legislation also makes other important investments in education. 
The bill provides a $500 million increase for special education and 
additional funds for Head Start to make sure that students are ready to 
start school.
  Education must be our Nation's top priority and while I am pleased 
with the investments made in this legislation, we must recognize that 
this is just the first step forward. Our future depends on us to do 
even more next year and the year after.
  The bill provides new funding to higher and train up to 100,000 new 
teachers, increases the maximum Pell grant to its highest level ever, 
$3,125, and provides additional resources for child care and eliminates 
cuts to worker protection programs.
  Mr. President, I am also pleased that the final bill restored the 
massive cuts contained in the House bill for the Summer Jobs Program 
and the Low-Income Heat and Energy Assistance Program. These cuts in 
the House bill--not in the Senate bill--unfairly targeted some of our 
Nation's most needy citizens, and had to be reversed. I am glad it was 
reversed.
  As has been the case in recent years, the appropriations committees 
was confronted with a number of legislative riders. This is a source of 
continuing frustration for our committee because we continue to believe 
there should be no authorizing legislation on appropriations bills.
  The House bill included an amendment to the Individuals With 
Disabilities Education Act, or IDEA, that would have given school 
officials expanded authorities to remove children with disabilities 
from school. I vigorously opposed that amendment, because it would have 
removed critical civil rights protections for children with 
disabilities--this on the heels of just a little over a year ago, after 
years of negotiation, when Congress enacted the 1997 amendments to 
IDEA. These amendments made a number of important changes to the law, 
including provisions governing the discipline of children with 
disabilities. The '97 amendments give schools new tools for addressing 
the behavior of children with disabilities, including more flexible 
authorities for removing children with disabilities engaged in 
misconduct involving weapons, drugs, or behavior substantially likely 
to result in injury. More information is needed on the implementation 
of these amendments before any additional changes to the law are 
considered by the Congress.
  For example, I keep hearing from some people that if a child with a 
disability brings a gun to school there is nothing they can do with 
them, but if

[[Page S12784]]

a nondisabled kid brought a gun to school they could expel them. 
Nothing could be further from the truth. If any child, such as a child 
with disabilities, under IDEA brings a gun, a weapon, a drug to school, 
they can be immediately dismissed, expelled, for up to 10 days, and 
then placed in an alternative setting for 45 more days. Again, people 
can expel a child right away who brings a gun or a dangerous weapon to 
school.
  I just say that as a way of pointing out that there is a lot of 
misinformation out there about the law, because the law was changed 
last year, and the rules and regulations have not yet been promulgated 
by the Department of Education. Hopefully, that will be done prior to 
the end of this year.
  Again, I would like to close these remarks on this section of the 
bill by thanking Chairman Specter for his outstanding leadership 
throughout the process of putting this part of the bill together.
  I therefore support the recommendation of the conferees for a GAO 
study on the discipline of children with disabilities in lieu of making 
any changes to the authorizing legislation itself. The conference 
agreement charges GAO with obtaining information on how the '97 
amendments have affected the ability of schools to maintain safe school 
environments conducive to learning. In order to enable the Congress to 
differentiate between the need for amendments as opposed to better 
implementation of the law, it is critical that GAO look at the extent 
to which school personnel understand the provisions in the IDEA and 
make use of the options available under the law.
  For example, in the past, there has been considerable confusion and 
misunderstanding regarding the options available to school districts in 
disciplining children with disabilities. The GAO should determine 
whether schools are using the authorities currently available for 
removing children. These include: removing a child for up to 10 school 
days per incident; placing the child in an interim alternative 
educational setting; extending a child's placement in an interim 
alternative educational setting; suspending and expelling a child for 
behavior that is not a manifestation of the child's disability; seeking 
removal of the child through injunctive relief; and proposing a change 
in the child's placement.
  In addition, the law now explicitly requires schools to consider the 
need for behavioral strategies for children with behavior problems. I 
continue to believes that the incidence of misconduct by children with 
disabilities is closely related to how well these children are served, 
including whether they have appropriate individualized education plans, 
with behavioral interventions where necessary. Again, to enable the 
Congress to interpret information on the effect of the IDEA on dealing 
with misconduct, this GAO report should provide information on the 
extent to which the schools are appropriately addressing the needs of 
students engaged in this misconduct. I would be opposed to giving 
school officials expanded authority for removing children who engage in 
misconduct, if such misconduct could be ameliorated by giving these 
children the services to which they are entitled. We need information 
on the effect of appropriate implementation of the IDEA on the ability 
of schools to provide for safe and orderly environments, and that is 
what the GAO study should evaluate.
  Finally on this matter, I want to emphasize that the provisions in 
the IDEA for removing children are only needed in those cases in which 
parents and school officials disagree about a proposed disciplinary 
action. Therefore, it is important that the GAO study also provides us 
information on the extent to which parents are requesting due process 
hearings on discipline-related matters and the outcomes of three 
hearings.
  Turning to another important component of this bill, Mr. President, 
I'd like to talk for a few minutes about agriculture. Since early 
summer, I have been working, along with a number of my colleagues, to 
inform this body about the very serious economic crisis gripping our 
nation's agriculture sector and to develop an emergency assistance 
package. Farm families and rural communities are not currently sharing 
in the prosperity of our broader economy. With farm income down over 20 
percent from just two years ago, our farm economy is suffering its 
worst downturn in over a decade.
  There are ominous signs that unless we turn this situation around, we 
are on the path to a full-blown agricultural depression on a scale of 
the 1980s farm crisis. My State of Iowa simply cannot stand to go down 
that road again, nor can our nation.
  So I am pleased that through our concerted efforts, this bill 
includes a substantial package of emergency assistance for America's 
farmers. President Clinton vetoed the first Agriculture appropriations 
bill. He was right to do so. It was woefully inadequate. So we brought 
it back. And that veto by the President set the stage for the extensive 
improvements that we now have in this bill.

  This bill increases funding by about 85 percent above the amount that 
was in the vetoed bill for assistance to replace income lost because of 
low commodity prices--an 85-percent increase over the bill that was 
vetoed. This is a victory but a partial victory. While this bill will 
provide a good deal of assistance in the form of a one-time payment, it 
falls far short of what is needed for the future.
  This bill really has been a ``missed opportunity'' in which we could 
have put underneath the so-called Freedom to Farm bill a farm income 
safety net, but did not. When the so-called Freedom to Farm bill was 
passed in 1996, commodity prices were high and the safety net was 
thrown out the window. But prices go down as well as go up.
  Since 1996 farm commodity prices have plummeted across our country. 
Now it is clear that the 1996 farm bill has failed, and has failed 
drastically, in protecting against disastrous losses in farm income. 
The bill that is before us just plows more money right into the Freedom 
to Farm payment system, which has already proven itself incapable of 
responding to low commodity prices.
  We proposed a better way. We proposed to focus assistance more 
carefully on farmers who really need it because of low prices. We 
proposed to direct the benefits towards actual farmers instead of 
toward landlords. We proposed to restore a farm income safety net 
responsive to commodity prices. And we proposed to link assistance to 
actual production to avoid windfalls for those choosing not to plant 
the supported crop. Lastly, we supported a measure of fiscal 
responsibility so that rising commodity prices would limit USDA farm 
program spending.
  Despite all of these advantages, the Republican majority rejected any 
alternative to the Freedom to Farm payment scheme. So what is going to 
happen is farmers will get a payment this fall. Even farmers who chose 
not to plant a crop will get a payment for it. They will get a payment 
having no relationship to the market price--just a flat payment across 
the board--fairly generous for those commodities with relatively better 
prices, much too little for commodities suffering the worst price 
losses. Also, a good number of farmers who will not be farming next 
year will get payments this fall, and somehow that will all have to be 
sorted out.
  With fixed cash payments, landlords are in a great position to put 
the pressure on and claim a lot of that money in the form of rent for 
next year. Again, farmers fortunate enough to produce a good crop and 
whose commodities already have high prices and who are not suffering 
will still get a payment. This scheme makes no sense whatsoever. And 
yet it is strictly the triumph of ideology over practicality. The 
Republican ideology is not to have any farm income safety net and if 
there is a crisis to throw money at it.
  So what we have done for the farm crisis is we have just thrown a lot 
of money at it. Well, that will help for this year, but it still won't 
be as good as what we proposed. Equally important, this bill does 
nothing toward restoring a farm income safety net for the longer term. 
What we proposed would have provided more income support for farmers 
and done so in a way that helps farmers deal with the practical reality 
of commodity markets. But, no, the Republican majority's ideology said 
we are going to stick with Freedom to Farm no matter what. And yet we 
know that a majority of farmers, a majority, a huge majority of the 
farmers wanted to take the caps off of marketing loan rates and they 
wanted to have some storage payments. Why?

[[Page S12785]]

 So they could take the bumper crop we are having this year, store it, 
wait for the grain prices to go up and market it later on.
  Well, this bill gives them nothing in this regard. Oh, they will get 
a payment this fall. But it will not be as much income protection as 
what we would have provided by taking the caps off of the marketing 
loan rates. Will it help? Sure, it will help. But it is a wasteful and 
fundamentally unsound way of helping our farmers.
  Well, as I said, Republicans just decided to throw money at the 
problem--a triumph of ideology over practicality.
  One last point. One of my biggest concerns about this bill is the $9 
billion add-on to the Pentagon budget--$9 billion thrown in at the last 
minute. Despite the rhetoric from the Republican side, precious little 
of this fiscally irresponsible add-on is targeted at troop readiness 
and other emergencies in the military.
  Congressional leadership talks a lot about shortages of spare parts 
and about troop pay problems. So where are the proposals to fix the 
Pentagon's antiquated supply system? Where are the proposals to 
increase pay for the troops? Not in this bill. But there is $1 billion 
for star wars. There are billions more in pork barrel projects not 
requested by the Pentagon. And at the same time that this bill piles on 
the Pentagon pork, it is shortchanging reform. The General Accounting 
Office and the Pentagon's own inspector general constantly report 
rampant waste and mismanagement in the military's purchasing and supply 
system, yet this bill lets the waste and mismangement continue 
unchecked, and throws in a few more gold-plated weapons systems to 
boot.
  What a boondoggle. What a boondoggle. We talk about troop readiness, 
so where does this bill put the money? It puts it into star wars. It 
puts it into pork projects that the Pentagon doesn't want, some more 
gold-plated weapons systems, but precious little in fact, for troop 
readiness.
  I have mixed feelings about this 40-pound, 4,000-page whopper that we 
have before us. It has some important provisions that we worked 
together on in a bipartisan fashion--to improve medical research, for 
example, and to improve education. A number of the components of this 
bill truly will improve the lives of hard-working American families, 
but the bill also has a number of awful provisions, add-ons, fiscally 
irresponsible giveaways.
  In the end, I will vote for it because I believe the good does 
outweigh the bad, but I want to be clear that if this bill were in the 
many separate pieces of legislation as it should have been, a lot of 
them I would have voted against, and I don't think a lot of them would 
ever have gotten through this body.
  As I have said earlier, and as many of my colleagues have said, this 
process which we just went through is bad for Americans. This is no way 
to do the Nation's business. The Republican leadership, as I said 
earlier, has treated our taxpayer dollars cavalierly. This is no way to 
flagrantly throw around the hard-earned tax dollars of the taxpayers of 
this country, to throw it away on boondoggles, to throw it away on 
items that were never debated or saw the light of day in the Senate or 
the House.
  I can only hope that the next Congress will not go through this 
exercise again. I hope the leadership of the next Congress will get the 
appropriations bills through on time, will debate these matters openly 
so that we can have the opportunity to discuss them openly, so we will 
know what is in the bills before we vote on them. I think Senator 
Robert Byrd of West Virginia said it best--as I read in the newspaper. 
He said, ``Only God knows what's in this bill.''
  Well, I don't know, Mr. President, I don't know if we will ever know 
what all is in this bill, but I am certain, certain as I am standing 
here, we are going to see inquiring reporters, investigative 
journalists who will begin looking at this bill. They will begin 
looking at all of those hidden items, and I bet you piece by piece, bit 
by bit, it is going to come out, maybe next month, maybe in January, 
maybe in March, all of the little hidden things that were in there. And 
I say, shame on this Congress, shame on the leadership for treating the 
American taxpayers this way. We have got to do better in the way we do 
the Nation's business.
  Mr. President, I yield the floor.


             opposition to deletion of the agjobs amendment

  Mr. SMITH of Oregon. Mr. President, as we take up the Omnibus 
appropriations bill, I would like to take this opportunity to express 
my extreme disappointment that the Agricultural Job Opportunity 
Benefits and Security Act amendment, known as AgJOBS, was eliminated 
from the Omnibus bill.
  The bipartisan AgJOBS amendment received a veto proof majority vote 
of 68-31 when it was added to the Commerce, Justice, State 
Appropriations bill earlier this year. We had a golden opportunity to 
reform the current bureaucratic H-2A immigrant visa program that has 
made fugitives out of farmworkers and felons out of farmers. The 
amendment would have created a workable system for recruiting farm 
workers domestically and preventing our American crops from rotting in 
the fields.
  Unfortuantely, the Clinton Administration was content with the status 
quo and threatened to veto the Omnibus bill if the balanced AgJOBS 
amendment was included.
  Mr. President, I find the Administration's veto threat quite 
troubling since the Omnibus appropriations bill contains a multi-
billion dollar disaster relief package for traditional program-crop 
agriculture to help deal with losses sustained as a result of the world 
financial crisis.
  The disaster relief goes to producers who already have a long history 
of reliance on federal assistance, yet the farm disaster bill does 
nothing to help producers of labor intensive commodities--fruits, 
vegetables, and horticultural specialties--who are not supported by the 
government and who are facing a crisis of nationwide labor shortages 
created by our own government. This crisis has been exacerbated by our 
current unworkable legal foreign worker program.
  A farmworker shortage ultimately affects America's ability to compete 
in the world agriculture market. According to the United States 
Department of Agriculture data, about three off-farm jobs are sustained 
by each on-farm production job. Therefore, nearly three times as many 
U.S. workers will lose their U.S. jobs as the number of foreign 
farmworkers kept out of the United States increases.
  Mr. President, I also cannot understand the inconsistency of the 
Administration enacting the H-1B high-tech worker bill and not enacting 
H-2A reform as embodied in our AgJOBS bill.
  Our AgJOBS bill contains worker benefits far in excess of those 
provided by the H-1B high-tech worker bill. Our bill guarantees above-
prevailing wages for lower wage occupations, free housing to both U.S. 
and foreign workers recruited from outside the local area, 
reimbursement of inbound and return transportation costs to both U.S. 
and foreign workers recruited from outside the local area, and 
penalties that include lifetime program debarment for violations. The 
H-1B requires only the prevailing wage without any housing or 
transportation benefits and provides a maximum penalty of a 3-year 
debarment.
  Mr. President, we cannot continue to allow our farmers and 
farmworkers to be trapped in a system that rewards illegal labor 
practices and punishes the most vulnerable.
  As we address reform of the H-2A immigrant visa program early next 
year, I hope my colleagues will work with me to finally safeguard basic 
human rights, provide a reliable documented work force for farmers, and 
reward legal conduct to both farmers and farmworkers.


                    QUINCY LIBRARY GROUP LEGISLATION

  Mrs. FEINSTEIN. Mr. President, I am very pleased that the Quincy 
Library Group bill has been included in the omnibus appropriations 
bill. This legislation embodies the consensus proposal of the Quincy 
Library Group, a coalition of environmentalists, timber industry 
representatives, and local elected officials in Northern California, 
who came together to resolve their long-standing conflicts over timber 
management on the national forest lands in their area.
  The Quincy Library Group legislation is a real victory for local 
consensus decision making. It proves that even some of the most 
intractable environmental issues can be resolved if

[[Page S12786]]

people work together toward a common goal.
  I first met the Quincy Library Group back in 1992 when I was running 
for the Senate, and was then very impressed with what they were trying 
to do.
  The members of the Quincy Library Group had seen first hand the 
conflict between timber harvesting and jobs, environmental laws and 
protection of their communities and forests, and the devastation of 
massive forest fires. Their overriding concern was that a catastrophic 
fire could destroy both the natural environment and the potential for 
jobs and economic stability in their community. They were also 
concerned the ongoing stalemate over forest management was ultimately 
harming both the environment and their local economy.
  The group got together and talked things out. They decided to meet in 
a quiet, non-confrontational environment--the main room of the Quincy 
Public Library. They began their dialogue in the recognition that they 
shared the common goal of fostering forest health, keeping ecological 
integrity, assuring an adequate timber supply for area mills, and 
providing economic stability for their community.
  One of the best articles I have read about the Quincy Library Group 
process recently appeared in the Washington Post. Mr. President, I ask 
unanimous consent that this article be printed in the Record at the end 
of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. Mr. President, after dozens of meetings and a year 
and a half of negotiation, the Quincy Library Group developed an 
alternative management plan for the Lassen National Forest, Plumas 
National Forest, and the Sierraville Ranger District of the Tahoe 
National Forest.
  In the last 5 years, the group has tried to persuade the U.S. Forest 
Service to administratively implement the plan they developed. While 
the Forest Service was interested in the plan developed, they were 
unwilling to fully implement it. Negotiations and discussions began in 
Congress. This legislation is the result.


                  the quincy library group legislation

  Specifically, the legislation directs the Secretary of Agriculture to 
implement the Quincy Library Group's forest management proposal on 
designated lands in the Plumas, Lassen and Tahoe National Forests for 
five years as a demonstration of community-based consensus forest 
management. I would like to thank Senators Murkowski, Bumpers, and 
Craig, Representatives Herger and Miller, as well as the Clinton 
Administration, for the thoughts they contributed to the development of 
the final bill.
  The legislation establishes significant new environmental protections 
in the Quincy Library Group project area. It protects hundreds of 
thousands of acres of environmentally sensitive lands, including all 
California spotted owl habitat, as well as roadless areas. Placing 
these areas off limits to logging and road construction protects many 
areas that currently are not protected, including areas identified as 
old-growth and sensitive watersheds in the Sierra Nevada Ecosystem 
Project report.
  However, in the event that any sensitive old growth is not already 
included in the legislation's off base areas, the Senate Energy and 
Natural Resources Committee provided report language when the 
legislation was reported last year, as I requested, directing the 
Forest Service to avoid conducting timber harvest activities or road 
construction in these late successful old-growth areas. The legislation 
also requires a program of riparian management, including wide 
protection zones and streamside restoration projects.
  The bottom line is that the Quincy Library Group legislation will 
provide strong protections for the environment while preserving the job 
base in the Northern Sierra--not just in one single company, but across 
35 area businesses, many of them small and family-owned.
  The Quincy Library Group legislation is strongly supported by local 
environmentalists, labor unions, elected officials, the timber 
industry, and 27 California counties. The House approved the Quincy 
Library Group legislation by a vote of 429 to one last year. The Senate 
Energy Committee reported the legislation last October. The legislation 
has been the subject of Congressional hearings and the focus of 
nationwide public discussion.
  I thank my colleagues for ensuring that this worthy pilot project has 
a chance.

                             Exhibit No. 1

               [From the Washington Post, Oct. 11, 1998]

                    Grass-Roots Seeds of Compromise

                (By Charles C. Mann and Mark L. Plummer)

       Every month since 1993, about 30 environmentalists, 
     loggers, biologists, union representatives and local 
     government officials have met the library of Quincy--a timber 
     town in northern California that has been the site of a nasty 
     15-year battle over logging.
       Out of these monthly meetings has emerged a plan to manage 
     2.4 million acres of the surrounding national forests. 
     Instead of leaving the forests' ecological fate solely to 
     Washington-based agencies and national interest groups, the 
     once-bitter adversaries have tried to forge a compromise 
     solution on the ground--a green version of Jeffersonian 
     democracy. When the House of Representatives, notorious for 
     its discord on environmental legislation, approved the plan 
     429-1 in July 1997, the Quincy Library Group became the 
     symbol for a promising new means of resolving America's 
     intractable environmental disputes.
       The Quincy Library Group is one of scores of citizens' 
     associations that in the past decade have brought together 
     people who previously met only in court. Sometimes called 
     ``community-based conservation'' groups, they include the 
     Friends of the Cheat River, a West Virginia coalition working 
     to restore a waterway damaged by mining runoff; the Applegate 
     Partnership, which hopes to restore a watershed in 
     southwestern Oregon while keeping timber jobs alive, and 
     Envision Utah, which tries to foster consensus about how to 
     manage growth in and around Salt Lake City.
       Like many similar organizations, the Quincy Library Group 
     was born of frustration. In the 1980s, Quincy-based 
     environmental advocates, led by local attorney Michael B. 
     Jackson, attempted with varying success to block more than a 
     dozen U.S. Forest Service timber sales in the surrounding 
     Plumas, Lassen and Tahoe national forests. The constant 
     battles tied the federal agency in knots and almost shut down 
     Sierra Pacific Industries, the biggest timber company there, 
     imperiling many jobs. The atmosphere was ``openly hostile, 
     with agitators on both sides,'' says Linda Blum, a local 
     activist who joined forces with Jackson in 1990 and aroused 
     so much opprobrium that Quincy radio hosts denounced her on 
     the air for taking food from the mouths of the town's 
     children.
       Worn down and dismayed by the hostility in his community, 
     Jackson was ready to try something different. He got a chance 
     to do so late in 1992, when Bill Coates, a Plumas County 
     supervisor, invited the factions to talk to each other, face 
     to face. Coates suggested that the group work from forest-
     management plans proposed by several local environmental 
     organizations in the mid-1980s. By early 1993, they were 
     meeting at the library and soon put together a new proposal. 
     (The Forest Service eventually had to drop out because the 
     Federal Advisory Committee Act, which places cumbersome 
     requirements on groups who meet with federal agencies.) Under 
     this proposal, timber companies could continue thinning and 
     selectively logging in up to 70,000 acres per year, about the 
     same area being logged in 1993 but drastically lower than the 
     1990 level. Riverbanks and roadless areas, almost half the 
     area covered by the plan, would be off-limits.
       The Quincy group asked the Forest Service to incorporate 
     its proposal into the official plans for the three national 
     forests, but never got a definite answer. Convinced that the 
     agency was too dysfunctional to respond, in 1996 the group 
     took its plan to their congressman, Wally Herger, a 
     conservative Republican. Herger introduced the Quincy 
     proposal in the House, hoping to instruct the agency to heed 
     the wishes of local communities. It passed overwhelmingly--
     perhaps the only time that Reps. Helen Chenoweth (R-Idaho), a 
     vehement property-rights advocate, and George Miller (D-
     Calif.) one of the greenest legislators on Capitol Hill, have 
     agreed on an environmental law. Then the bill went to the 
     Senate--and slammed into resistance from big environmental 
     lobbies.
       From the start, the Quincy group had kept in touch with the 
     Wilderness Society, the Natural Resources Defense Council and 
     the Sierra Club. The three organizations offered comments, 
     and the Quincy group incorporated some. Still, the national 
     groups continued to balk, instead submitting detailed 
     criteria necessary to ``merit'' their support. When the 
     Quincy plan became proposed legislation, the national groups 
     stepped up their attacks. The Quincy approach, said Sierra 
     Club legal director Debbie Sease, had a ``basic underlying 
     flaw'' using a cooperative, local decision-making process to 
     manage national assets. Jay Watson, regional director of the 
     Wilderness Society, said: ``Just because a group of local 
     people can come to agreement doesn't mean that it is good 
     public policy.'' And because such parochial efforts are 
     inevitably ill-informed and always risk domination by rich, 
     sophisticated industry representatives, the Audubon Society 
     warned, they are ``not necessarily equipped

[[Page S12787]]

     to view the bigger picture.'' Considering this bigger 
     picture, it continued, ``is the job of Congress, and of 
     watchdog groups like the National Audubon Society.''
       Many local groups regard national organizations as more 
     interested in protecting their turf than in achieving 
     solutions that advance conservation. ``It's interesting to me 
     that it has to be top-down,'' said Jack Shipley, a member of 
     the Applegate Partnership. ``It's a power issue, a control 
     issue.'' The big groups' insistence on veto power over local 
     decision-making ``sounds like the old rhetoric--either their 
     way or no way,'' Shipley says. ``No way'' may be the fate of 
     the Quincy bill. Pressured by environmental lobbies, Sen. 
     Barbara Boxer (D-Calif.) placed a hold on it in the Senate.
       Despite the group's setback, community-based conservation 
     efforts like Quincy provide a glimpse of the future. Under 
     the traditional approach to environmental management, 
     decisions have been delegated to impartial bureaucracies--the 
     Forest Service, for example, for national forests. Based on 
     the scientific evaluations of ecologists and economists, the 
     agencies then formulate the ``right'' policies, preventing 
     what James Madison called ``the mischief of faction.''
       But today, according to Mark Sagoff of the University of 
     Maryland Institute for Philosophy and Public Policy, it is 
     the bureaucrats who are beset by factions; big business and 
     environmental lobbies. For these special-interest groups, he 
     argues, ``deliberating with others to resolve problems 
     undermines the group's mission, which is to press its purpose 
     or concern as far as it can in a zero-sum game with its 
     political adversaries.'' The system ``benefits the lawyers, 
     lobbyists and expert witnesses who serve in various causes as 
     mercenaries,'' he says, ``but it produces no policy worth a 
     damn.''
       In contrast, community-based conservation depends on all 
     sides acknowledging the legitimacy of each other's values. 
     Participants are not guaranteed to get exactly what they 
     want; no one has the power to stand by and judge the 
     ``merit'' of the results. Although ecology and economics play 
     central roles, ecologists and economists have no special 
     place. Like everyone else, they must sit at the table as 
     citizens, striving to make their community and its 
     environment a better place to live.
       In short, Quincy's efforts and those like it represent a 
     new type of environmentalism: republican environmentalism, 
     with a small ``r.'' This new approach cannot address global 
     problems like climate change. Nor should it be routinely 
     accepted if a local group decides on irrevocable changes in 
     areas of paramount national interest--filling in the Grand 
     Canyon, say. But even if some small town would be foolish 
     enough to decide to do something destructive, there's a whole 
     framework of national environment laws that would prevent it 
     from happening. And, despite the resistance of the national 
     organizations, the environmental movement should not reject 
     this new approach out of hand. Efforts to protect the 
     environment over the past 25 years have produced substantial 
     gains, but have lately degenerated into a morass of 
     litigation and lobbying. Community-based conservation has the 
     potential to change things on the ground, where it matters 
     most.

  Mr. CRAIG. It is agreed that certain language added to the Quincy 
Library Group Forest Recovery and Economic Stability Act after the bill 
was proposed by Congressman Wally Herger related to grazing within the 
pilot project areas may have introduced ambiguities that could lead to 
adverse effects. Is there any intent for the Quincy Library Group 
legislation to negatively impact grazing in general?
  Mrs. FEINSTEIN. No, neither the authors of the bill, nor the Quincy 
Library Group ever intended to negatively impact grazing generally.
  Mr. CRAIG. What does ``specific location'' as referred to in 
subsection (c)(2)(C) of the legislation mean? Can the riparian 
management or SAT guidelines referred to by this legislation be applied 
to the entire pilot project area?
  Mrs. FEINSTEIN. The only location where these guidelines would apply 
to grazing is where cattle are actually in the work area and at the 
same time a QLG activity is taking place. The QLG resource management 
activities include building defensible profile zones, single or group 
tree selection thinning, and riparian management projects.
  Mr. CRAIG. Will the SAT riparian management guidelines referred to in 
this measure apply to riparian management projects outside of the pilot 
project area or to grazing activities within the pilot project area 
where no riparian management activities are taking place?
  Mrs. FEINSTEIN. Under the terms of this bill the SAT guidelines 
affecting grazing will apply only to the specific work area location 
and only at the specific time that projects are conducted within the 
pilot project area. The applicability of these guidelines outside of 
the pilot project area is not addressed by this legislation.


                       Children's Online Privacy

  Mr. BRYAN. Mr. President, the Children's Online Privacy Act was 
reported out of Committee by voice vote. Because of time constraints at 
the end of the session, we have been unable to file a Committee Report 
before offering it as an amendment on the Senate floor. Accordingly, I 
wish to take this opportunity to explain the purpose and some of the 
important features of the amendment.
  In a matter of only a few months since Chairman McCain and I 
introduced this bill last summer, we have been able to achieve a 
remarkable consensus. This is due in large part to the recognition by a 
wide range of constituencies that the issue is an important one that 
requires prompt attention by Congress. It is also due to revisions to 
our original bill that were worked out carefully with the participation 
of the marketing and online industries, the Federal Trade Commission, 
privacy groups, and First Amendment organizations.
  The goals of this legislation are: (1) to enhance parental 
involvement in a child's online activities in order to protect the 
privacy of children in the online environment; (2) to enhance parental 
involvement to help protect the safety of children in online fora such 
as chatrooms, home pages, and pen-pal services in which children may 
make public postings of identifying information; (3) to maintain the 
security of personally identifiable information of children collected 
online; and (4) to protect children's privacy by limiting the 
collection of personal information from children without parental 
consent. The legislation accomplishes these goals in a manner that 
preserves the interactivity of children's experience on the Internet 
and preserves children's access to information in this rich and 
valuable medium.
  I ask unanimous consent that a summary of the bill's provisions be 
printed in the Record.
  There being no objection, the summary was ordered to be printed in 
the Record, as follows:
     Sec. 1301. Short Title
       This Act may be cited as the ``Children's Online Privacy 
     Protection Act of 1998.''
     Sec. 1302. Definitions
       (1) Child: The amendment applies to information collected 
     from children under the age of 13.
       (2) Operator: The amendment applies to ``operators.'' This 
     term is defined as the person or entity who both operates an 
     Internet website or online service and collects information 
     on that site either directly or through a subcontractor. This 
     definition is intended to hold responsible the entity that 
     collects the information, as well as the entity on whose 
     behalf the information is collected. This definition, 
     however, would not apply to an online service to the extent 
     that it does not collect or use the information.
       The amendment exempts nonprofit entities that would not be 
     subject to the FTC Act. The exception for a non-profit entity 
     set forth in Section 202(2)(B) applies only to a true not-
     for-profit and would not apply to an entity that operates for 
     its own profit or that operates in substantial part to 
     provide profits to or enhance the profitability of its 
     members.
       (7) Parent: The term ``parent'' includes ``legal 
     guardian.''
       (8) Personal Information: This is an online children's 
     privacy bill, and its reach is limited to information 
     collected online from a child.
       The amendment applies to individually identifying 
     information collected online from a child. The definition 
     covers the online collection of a first and last name, 
     address including both street and city/town (unless the 
     street address alone is provided in a forum, such as a city-
     specific site, from which the city or town is obvious), e-
     mail address or other online contact information, phone 
     number, Social Security number, and other information that 
     the website collects online from a child and combines with 
     one of these identifiers that the website has also collected 
     online. Thus, for example, the information ``Andy from Las 
     Vegas'' would not fall within the amendment's definition of 
     personal information. In addition, the amendment authorizes 
     the FTC to determine through rulemaking whether this 
     definition should include any other identifier that permits 
     the physical or online contacting of a specific individual.
       It is my understanding that ``contact'' of an individual 
     online is not limited to e-mail, but also includes any other 
     attempts to communicate directly with a specific, 
     identifiable individual. Anonymous, aggregate information--
     information that cannot be linked by the operator to a 
     specific individual--is not covered by this definition.
       (9) Verifiable Parental Consent: The amendment establishes 
     a general rule that ``verifiable parental consent'' is 
     required before a

[[Page S12788]]

     web site or online service may collect information online 
     from children, or use or disclose information that it has 
     collected online from children. The amendment makes clear 
     that parental consent need not be obtained for each instance 
     of information collection, but may, with proper notice, be 
     obtained by the operator for future information collection, 
     use and disclosure. Where parental consent is required under 
     the amendment, it means any reasonable effort, taking into 
     consideration available technology, to provide the parent of 
     a child with notice of the website's information practices 
     and to ensure that the parent authorizes collection, use and 
     disclosure, as applicable, of the personal information 
     collected from that child.
       The FTC will specify through rulemaking what is required 
     for the notice and consent to be considered adequate in light 
     of available technology. The term should be interpreted 
     flexibly, encompassing ``reasonable effort'' and ``taking 
     into consideration available technology.'' Obtaining written 
     parental consent is only one type of reasonable effort 
     authorized by this legislation. ``Available technology'' can 
     encompass other online and electronic methods of obtaining 
     parental consent. Reasonable efforts other than obtaining 
     written parental consent can satisfy the standard. For 
     example, digital signatures hold significant promise for 
     securing consent in the future, as does the World Wide Web 
     Consortium's Platform for Privacy Preferences. In addition, I 
     understand that the FTC will consider how schools, libraries 
     and other public institutions that provide Internet access to 
     children may accomplish the goals of this Act.
       As the term ``reasonable efforts'' indicates, this is not a 
     strict liability standard and looks to the reasonableness of 
     the efforts made by the operator to contact the parent.
       (10) Website Directed to Children: This definition 
     encompasses a site, or that portion of a site or service, 
     which is targeted to children under age 13. The subject 
     matter, visual content, age of models, language, or other 
     characteristics of the site or service, as well as off-line 
     advertising promoting the website, are all relevant to this 
     determination. For example, an online general interest 
     bookstore or compact disc store will not be considered to be 
     directed to children, even though children visit the site. 
     However, if the operator knows that a particular visitor from 
     whom it is collecting information is a child, then it must 
     comply with the provisions of this amendment. In addition, if 
     that site has a special area for children, then that portion 
     of the site will be considered to be directed to children.
       The amendment provides that sites or services that are not 
     otherwise directed to children should not be considered 
     directed to children solely because they refer or link users 
     to different sites that are directed to children. Thus a site 
     that is directed to a general audience, but that includes 
     hyperlinks to different sites that are directed to children, 
     would not be included in this definition but the child 
     oriented linked sites would be. By contrast, a site that is a 
     child-oriented directory would be considered directed to 
     children under this standard. However, it would be 
     responsible for its own information practices, not those of 
     the sites or services to which it offers hyperlinks or 
     references.
       (12) Online Contact Information: This term means an e-mail 
     address and other substantially similar identifiers enabling 
     direct online contact with a person.
     Sec. 1303. Regulation of Unfair and Deceptive Acts and 
         Practices
       This subsection directs the FTC to promulgate regulations 
     within one year of the date of enactment prohibiting website 
     or online service operators or any person acting on their 
     behalf from violating the prohibitions of subsection (b). The 
     regulations shall apply to any operator of a website or 
     online service that collects personal information from 
     children and is directed to children, or to any operator 
     where that operator has actual knowledge that it is 
     collecting personal information from a child.
       The regulations shall require that these operators adhere 
     to the statutory requirements set forth in Section 203(b)(1):
       1. Notice.--Operators must provide notice on their sites of 
     what personal information they are collecting online from 
     children, how they are using that information, and their 
     disclosure practices with regard to that information. Such 
     notice should be clear, prominent and understandable. 
     However, providing notice on the site alone is not sufficient 
     to comply with the other provisions of Section 202 that 
     require the operator to make reasonable efforts to provide 
     notice in obtaining verifiable parental consent, or the 
     provisions of Section 203 that require reasonable efforts to 
     give parents notice and an opportunity to refuse further use 
     or maintenance of the personal information collected from 
     their child. These provisions require that the operator make 
     reasonable efforts to ensure that a parent receives notice, 
     taking into consideration available technology.
       2. Prior Parental Consent.--As a general rule, operators 
     must obtain verifiable parental consent for the collection, 
     use or disclosure of personal information collected online 
     from a child.
       3. Disclosure and Opt Out for a Parent Who Has Provided 
     Consent.--Subsection 203(b)(1)(B) creates a mechanism for a 
     parent, upon supplying proper identification, to obtain: (1) 
     disclosure of the specific types of personal information 
     collected from the child by the operator; and (2) disclosure 
     through a ``means that is reasonable under the 
     circumstances'' of the actual personal information the 
     operator has collected from that child. It would be 
     inappropriate for operators to be liable under another source 
     of law for disclosures made in a good faith effort to fulfill 
     the disclosure obligation under this subsection. Accordingly, 
     subsection 203(a)(2) provides that operators are immune from 
     liability under either federal or state law for any 
     disclosure made in good faith and following procedures that 
     are reasonable. If the FTC has not issued regulations, I 
     expect that such procedures would be judged by a court based 
     upon their reasonableness.
       Subsection 203(b)(1)(B) also gives that parent the ability 
     to opt out of the operator's further use or maintenance in 
     retrievable form, or future online collection of information 
     from that child. The opt out of future collection operates as 
     a revocation of consent that the parent has previously given. 
     It does not prohibit the child from seeking to provide 
     information to the operator in the future, nor the operator 
     from responding to such a request by seeking (and obtaining) 
     parental consent. In addition, the opt out requirement 
     relates only to the online site or sites for which the 
     information was collected and maintained, and does not apply 
     to different sites which the operator separately maintains.
       Subsection 203(b)(3) provides that if a parent opts out of 
     use or maintenance in retrievable form, or future online 
     collection of personal information, the operator of the site 
     or service in question may terminate the service provided to 
     that child.
       4. Curbing Inducements to Disclose Personal Information.--
     Subsection 203(b)(1)(C) prohibits operators from inducing a 
     child to disclose more personal information than reasonably 
     necessary in order to participate in a game, win a prize, or 
     engage in another activity.
       5. Security Procedures.--Subsection 203(b)(1)(D) requires 
     that an operator establish and maintain reasonable procedures 
     to protect the confidentiality, security, and integrity of 
     personal information collected online from children by that 
     operator.
       Exceptions to Parental Consent: Subsection 203(b)(2) is 
     intended to ensure that children can obtain information they 
     specifically request on the Internet but only if the operator 
     follows certain specified steps to protect the child's 
     privacy. This subsection permits an operator to collect 
     online contact information from a child without prior 
     parental consent in the following circumstances: (A) 
     collecting a child's online contact information to respond on 
     a one-time basis to a specific request of the child; (B) 
     collecting a parent's or child's name and online contact 
     information to seek parental consent or to provide parental 
     notice; (C) collecting online contact information to respond 
     directly more than once to a specific request of the child 
     (e.g., subscription to an online magazine), when such 
     information is not used to contact the child beyond the scope 
     of that request; (D) the name and online contact information 
     of the child to the extent reasonably necessary to protect 
     the safety of a child participant in the site; and (E) 
     collection, use, or dissemination of such information as 
     necessary to protect the security or integrity of the site or 
     service, to take precautions against liability, to respond to 
     judicial process, or, to the extent permitted under other 
     provisions of law, to provide information to law enforcement 
     agencies or for an investigation related to public safety.
       For each of these exceptions the amendment provides 
     additional protections to ensure the privacy of the child. 
     For a one-time contact, the online contact information 
     collected may be used only to respond to the child and then 
     must not be maintained in retrievable form. In cases where 
     the site has collected the parents' online contact 
     information in order to obtain parental consent, it must not 
     maintain that information in retrievable form if the parent 
     does not respond in a reasonable period of time. Finally, if 
     the child's online contact information will be used, at the 
     child's request, to contact the child more than once, the 
     site must use reasonable means to notify parents and give 
     them the opportunity to opt out.
       In addition, subsection (C)(ii) also allows the FTC the 
     flexibility to permit the site to recontact the child without 
     notice to the parents, but only after the FTC takes into 
     consideration the benefits to the child of access to online 
     information and services and the risks to the security and 
     privacy of the child associated with such access.
       Paragraph (D) clarifies that websites and online services 
     offering interactive services directed to children, such as 
     monitored chatrooms and bulletin boards, that require 
     registration but do not allow the child to post personally 
     identifiable information, may request and retain the names 
     and online contact information of children participating in 
     such activities to the extent necessary to protect the safety 
     of the child. However, the company may not use such 
     information except in circumstances where the company 
     believes that the safety of a child participating on that 
     site is threatened, and the company must provide direct 
     parental notification with the opportunity for the parent to 
     opt out of retention of the information. For example, there 
     have been instances in which children have threatened suicide 
     or discussed family abuse in such fora. Under these 
     circumstances, an operator may use the name and online 
     contact information of the child in order to be able to get 
     help for the child.

[[Page S12789]]

       Throughout this section, the amendment uses the term ``not 
     maintained in retrievable form.'' It is my intent in using 
     this language that information that is ``not maintained in 
     retrievable form'' be deleted from the operator's database. 
     This language simply recognizes the technical reality that 
     some information that is ``deleted'' from a database may 
     linger there in non-retrievable form.
       Enforcement.--Subsection 203(c) provides that violations of 
     the FTC's regulations issued under this amendment shall be 
     treated as unfair or deceptive trade practices under the FTC 
     Act. As discussed below, State Attorneys General may enforce 
     violations of the FTC's rules. Under subsection 203(d), state 
     and local governments may not, however, impose liability for 
     activities or actions covered by the amendment if such 
     requirements would be inconsistent with the requirements 
     under this amendment or Commission regulations implementing 
     this amendment.
     Sec. 1304. Safe harbors
       This section requires the FTC to provide incentives for 
     industry self-regulation to implement the requirements of 
     Section 203(b). Among these incentives is a safe harbor 
     through which operators may satisfy the requirements of 
     Section 203 by complying with self-regulatory guidelines that 
     are approved by the Commission under this section.
       This section requires the Commission to make a 
     determination as to whether self-regulatory guidelines 
     submitted to it for approval meet the requirements of 
     Commission regulations issued under Section 203. The 
     Commission will issue, through rulemaking, regulations 
     setting forth procedures for the submission of self-
     regulatory guidelines for Commission approval. The 
     regulations will require that such guidelines provide the 
     privacy protections set forth in Section 203. The Commission 
     will assess all elements of proposed self-regulatory 
     guidelines, including enforcement mechanisms, in light of the 
     circumstances attendant to the industry or sector that the 
     guidelines are intended to govern.
       The amendment provides that, once guidelines are approved 
     by the Commission, compliance with such guidelines shall be 
     deemed compliance with Section 203 and the regulations issued 
     thereunder.
       The amendment requires the Commission to act upon requests 
     for approval of guidelines for safe harbor treatment within 
     180 days of the filing of such requests, including a period 
     for public notice and comment, and to set forth its 
     conclusions in writing. If the Commission denies a request 
     for safe harbor treatment or fails to act on a request within 
     180 days, the amendment provides that the party that sought 
     Commission approval may appeal to a United States district 
     court as provided for in the Administrative Procedure Act, 5 
     U.S.C. Sec. 706.
     Sec. 1305. Actions by States.
       State Attorneys General may file suit on behalf of the 
     citizens of their state in any U.S. district court of 
     jurisdiction with regard to a practice that violates the 
     FTC's regulations regarding online children's privacy 
     practices. Relief may include enjoining the practice, 
     enforcing compliance, obtaining compensation on behalf of 
     residents of the state, and other relief that the court 
     considers appropriate.
       Before filing such an action, an attorney general must 
     provide the FTC with written notice of the action and a copy 
     of the complaint. However, if the attorney general determines 
     that prior notice is not feasible, it shall provide notice 
     and a copy of the complaint simultaneous to filing the 
     action. In these actions, state attorneys general may 
     exercise their power under state law to conduct 
     investigations, take evidence, and compel the production of 
     evidence or the appearance of witnesses.
       After receiving notice, the FTC may intervene in the 
     action, in which case it has the right to be heard and to 
     file an appeal. Industry associations whose guidelines are 
     relied upon as a defense by any defendant to the action may 
     file as amicus curiae in proceedings under this section.
       If the FTC has filed a pending action for violation of a 
     regulation prescribed under Section 3, no state attorney 
     general may file an action.
     Sec. 1306. Administration and applicability
       FTC Enforcement: Except as otherwise provided in the 
     amendment, the FTC shall conduct enforcement proceedings. The 
     FTC shall have the same jurisdiction and enforcement 
     authority with respect to its rules under this amendment as 
     in the case of a violation of the Federal Trade Commission 
     Act, and the amendment shall not be construed to limit the 
     authority of the Commission under any other provisions of 
     law.
       Enforcement by Other Agencies: In the case of certain 
     categories of banks, enforcement shall be carried out by the 
     Office of the Comptroller of the Currency; the Federal 
     Reserve Board; the Board of Directors of the Federal Deposit 
     Insurance Corporation, the National Credit Union 
     Administration Board, and the Farm Credit Administration. The 
     Secretary of Transportation shall have enforcement authority 
     with regard to any domestic or foreign air carrier, and the 
     Secretary of Agriculture where certain aspects of the Packers 
     and Stockyards Act apply.
     Sec. 1307. Review.
       Within 5 years of the effective date for this amendment, 
     the Commission shall conduct a review of the implementation 
     of this amendment, and shall report to Congress.
     Sec. 1308. Effective date
       The enforcement provisions of this amendment shall take 
     effect 18 months after the date of enactment, or the date on 
     which the FTC rules on the first safe harbor application 
     under section 204 if the FTC does not rule on the first such 
     application filed within one year after the date of 
     enactment, whichever is later. However, in no case shall the 
     effective date be later than 30 months after the date of 
     enactment of this Act.


                              Section 110

  Mr. D'AMATO. Mr. President, I am pleased that this Omnibus 
Appropriations Bill will include a delay of the implementation of 
Section 110 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996.
  The 1996 immigration law mandated the implementation of an exit-entry 
system at all U.S. borders by September 30, 1998. If implemented, the 
impact of this provision would be devastating, causing insufferable 
delays at the U.S.-Canadian border, particularly in my own state of New 
York. Trade, tourism and international relations would all suffer.
  Last year, I joined with Senator Spencer Abraham and other colleagues 
to introduce the Border Improvement and Immigration Act of 1997 (S. 
1360) which would maintain current cross-border traffic along the 
northern border and I testified at a Senate Subcommittee hearing on the 
repercussions of implementing Section 110 on New York. On April 23, 
1998, the Senate Judiciary Committee considered and marked up the bill. 
The bill approved by the Committee allows land border and seaports to 
be exempt from the new system. The full Senate passed S. 1360 in July 
1998 and also voted in support of a full repeal of Section 110.
  However, as the date of implementation grew closer, Congress enacted 
a two and a half year delay, which is included in the Omnibus 
Consolidated and Emergency Supplemental Appropriation Act for Fiscal 
Year 1999. While we have some ``breathing room'', rest assured that I 
will continue to press for a full repeal of Section 110. I thank my 
colleagues for working with Senator Abraham and I on this important 
provision.
  Mrs. BOXER. Mr. President, I have decided to vote for the omnibus 
appropriations bill because it contains many things which are very 
beneficial to the people and the economy of my state of California, and 
it includes two of my top priorities--afterschool programs and the 
Salton Sea Restoration Act.
  I want to make it clear, however, that the process that brought us 
this bill is severely flawed. While the Senate Appropriations 
Committee, on which I sit, did its work and reported each 
appropriations bill to the full Senate, the leaders of this Congress 
failed to do the appropriations work. This omnibus bill is not the 
right way to legislate.
  I also want to say that I strongly object to the environmental riders 
in the bill, including legislation that will double the timber cut in 
several national forests in California. I realize that some of the 
riders were dropped from the final legislation and others were 
negotiated to have less impact, but the presence of any riders that 
harm our environment is unacceptable to me.
  First, let me say what I like about the omnibus legislation:


                               education

  The most significant achievement of the bill is its emphasis on 
funding for public education, including:
  $129 million to recruit, hire and train 3,500 teachers for California 
schools in order to reduce class size in the primary grades.
  $20 million to expand afterschool programs for 25,000 children in 
California. This is a $16 million increase for California. I am 
particularly gratified by the outcome here because I believe it 
reflects my bill, the ``Afterschool Education and Safety Act'', and the 
amendment I successfully attached to the Senate Budget Resolution 
calling for more afterschool funding.
  $77 million, a $12 million increase, for technology in schools 
programs, to help train teachers, and ensure computer literacy and 
access to Internet for California students.
  $875 million to California schools, a $35 million increase over last 
year, for disadvantaged students under the Title I program. Senator 
Feinstein and I worked very hard for this increase.

[[Page S12790]]

  $550 million for California Head Start programs, to serve 3,280 more 
California children than last year for a total of more than 80,000.
  $58 million, an increase of $3.6 million, through the Goals 2000 
program to promote higher academic standards, increase student 
achievement, and help 12000 California schools implement school 
reforms.
  $26 million for California through the ``America Reads'' program, to 
help children in grades K-3 improving reading skills--all new funds.
  The largest Pell Grant ever to California: $920 million, an increase 
of $43 million over last year, to increase the maximum grant to college 
students to $3,125, 36% higher than maximum award last year.


                                 health

  The bill provides funding for several federal programs that are very 
important in my state, and the omnibus funding levels will result in 
great benefits to California:
  $2.3 billion, a $300 million increase, for medical research grants to 
California universities and research institutions through the National 
Institutes of Health (est.)
  $238 million , a $43 million increase, for the Ryan White Care Act 
for health care services to Californians with HIV and AIDS.
  At least $13 million for HIV/AIDS prevention and treatment for 
minority communities.
  An increase of between $11 and 21 million in funding for Housing 
Opportunities for Persons With Aids (HOPWA) who have limited financial 
resources.
  In addition, the bill accelerates the implementation of the health 
insurance premium tax deduction for the self-employed. By 2003, the 
deduction will be 100 percent.
  The omnibus legislation also requires federal health plans to provide 
coverage for contraceptive drugs and devices.
  Finally, the bill increases funding for the Centers for Disease 
Control by $226 million over last year--even more than the president's 
request--and specifies funds for important priorities such as childhood 
immunization ($421 million), breast and cervical cancer screening ($159 
million), and chronic and environmental disease ($294 million).


                                economy

  The legislation extends provisions of current law that help 
California's economy, including:
  The Research and Experimentation Tax Credit, which is of great 
importance to California's high tech and bio tech companies.
  The Work Opportunity Tax Credit, which encourages businesses to hire 
disadvantaged workers.
  The Trade Adjustment Assistance program, which helps workers and 
businesses adversely affected by free trade agreements.
  The Generalized System of Preferences authority of the President, 
which allows him to extend duty-free treatment on imports from certain 
development countries.
  There are a number of other funding provisions that are beneficial to 
my state's businesses and industries, and our economy, including:
  $204 million for the Advanced Technology Program, an increase of $11 
million over last year, to develop cutting edge technologies. 
California receives more than any other state.
  $100 million for ``Next Generation Internet'', a federal program to 
connect universities to the Internet and to one another. Many 
California universities are part of this program: UCLA, Stanford, 
Berkeley, UC-Davis, UC-Irvine, UC-San Diego, Calif. Tech, and Cal 
State, and others.
  A 3-year moratorium on new taxes on Internet activities.
  Full funding for the international Monetary Fund.
  About double the number of visas available to foreign high tech, high 
skilled workers under the H-1B program. The bill raises the annual cap 
from 65,000 to 115,000 for next 2 years.
  An increase in the Federal Housing Administration's loan limit from 
$86,000 to $109,000, which will give more housing ownership 
opportunities to Californians.
  $283 million nationally for 50,000 Welfare to Work Housing Vouchers 
for families trying to make transition to jobs. This new program will 
help them get housing closer to jobs.


                              Agriculture

  The bill includes a number of important funding and legislative 
provisions for California farm interests:
  Extension of time for California citrus growers to conduct scientific 
review of whether Argentine citrus should be permitted into the U.S.
  Continued affordability for California farmers for crop insurance.
  $500,000 for pest control research that affects citrus fruit trees.
  $90 million for the Market Access Program, which benefits California 
companies that sell product overseas.
  In addition, the bill provides an increase of $75 million--to $633 
million--for the Food Safety Initiative, to help implement improvements 
in surveillance of food borne illnesses, education about proper food 
handling, research, and inspection of imported and domestic foods.


                              environment

  The omnibus bill includes some good things for California, including:
  Salton Sea legislation to require a Department of Interior study on 
options for restoring the Sea. The bill also provides $14.4 million to 
fund research and restoration activities.
  $10,000 for an appraisal of the Bolsa Chica mesa.
  $2 million for land acquisition in the Santa Monica Mountains 
National Recreation Area.
  $273,000 for operations at the Manzanar National Historic Site
  Continuation for the moratorium on new Outer Continental Shelf oil/
mineral leases and drilling.
  $1 million for land acquisition in the San Bernardino National 
Forest.
  More generally, the bill provides a substantial increase for global 
climate change programs to more than $1 billion, a 25.6 percent 
increase over 1998. It also funds the President's Clean Water Action 
Plan at $1.7 billion--a 16.1 percent increase over 1998. This 5-year 
program helps communities and farmers clean up waterways which are 
currently deemed unswimmable and unfishable.


                             infrastructure

  The bill provides a total of $293 million for California 
transportation projects, including $70 million for Los Angeles 
Metropolitan Transportation Authority Red Line, $40 million for the 
BART-to-San Francisco Airport line, and $17 million for the Santa 
Monica Bus Transitway for a dedicated highway express lane for buses.
  Other major California projects that are funded include $50 million 
for Los Angeles River flood control, $52 million for Port of Los 
Angeles expansion, $6 million for Port of Long Beach expansion, and 
$1.5 million for Marina Del Rey dredging (Boxer request)


                   community development and services

  Allows LA City and County to use up to 25 percent of Los Angeles 
Community Development Block Grant for public services, such as job 
training, child care, crime and drug abuse prevention--federal cap 
normally is 15 percent. This gives LA more flexibility in deciding how 
to spend the CDBG funds.
  Funds the Low Income Home Energy Assistance program at $1.1 billion 
nationally. Last year, the program benefited 300,000 low income 
families in California.
  Summer Youth Employment program is funded at $871 million, same as 
last year, nationwide. Last year, California received $140.1 million, 
creating 70,510 jobs for economically disadvantaged youth.


                                 crime

  The omnibus appropriations bill funds the COPS program with an 
additional $1.4 billion nationwide. This will allow the hiring of an 
additional 1,700 new police in California. The bill also includes $2 
million for the ``Tools for Tolerance'' program, a new grant under the 
Byrne Grant program for the Simon Wiesenthal Center in Los Angeles. 
This program helps police officers learn how they can reduce prejudice 
in their communities.


                    immigration assistance to states

  The legislation includes about $585 million to states as 
reimbursement for the cost of incarcerating illegal immigrants. 
California receives about half the national total. The bill also 
includes roughly $150 million to reduce backlog at INS in processing 
requests by legal immigrants to become U.S. citizens. Forty percent of 
the current backlog is in California.
  These are all good provisions that will be of benefit to my state. 
However, I am very disappointed that the omnibus bill contains a number 
of harmful provisions, as well, including:

[[Page S12791]]

  Legislation to allow doubling the cut of timber in 2\1/2\ national 
forests in California.
  An 8-month delay of implementation of new oil valuation royalty 
rules, which deprives California schools of funds they are entitled to.
  Zero funding for the U.N. Fund for Population Activities--
international family planning assistance.
  Continuation of the prohibition, except in cases of life 
endangerment, rape or incest, on the use of any federal funds for 
abortion services.
  Continuaiton of the ban on federal employee health benefit plans for 
covering abortion services except in cases of life endangerment, rape 
or incest.
  The bill provides about $8 million in ``emergency'' fiscal year 1999 
spending for defense and national security. The Joint Chiefs of Staff 
have said there are billions in the defense budget for items not 
requested by them. I believe they are right and that some of the 
unrequested items could have been cut to offset needed additional 
defense funds included in the omnibus bill.
  Mr. President, for the good that is in the bill, I will vote for it. 
However, it is my strong feeling that this ``omnibus, consolidated, 
emergency, supplemental'' bill is not a good way to put together the 
budget of the United States. Too many decisions--important decisions 
that affect millions of Americans--were left to the end of the year and 
made by just a handful of people, rather than being considered 
carefully and thoroughly over a period of months, in open committee and 
floor debates. I hope that this process will not be repeated in future 
years.
  Overall, I remain strongly and deeply committed to a budget and 
legislative agenda that puts top priority on education for all American 
children, health research that will make life better for all Americans, 
technology development to keep America's economy the strongest in the 
world, and infrastructure that promotes safety, economic activity, and 
higher quality of life for all our people.


                        INTERNET MORATORIUM ACT

  Mr. BREAUX. Mr. President, I am pleased that the Internet Moratorium 
Act is included in the 1998 omnibus appropriations bill. Present 
federal law neither authorizes, nor imposes, nor ratifies any excise, 
sales, or domain registration tax on Internet use for electronic 
interstate commerce, and only one fee for the Intellectual 
Infrastructure Fund. This temporary moratorium will prevent federal and 
state governments from implementing or enforcing taxes imposed on 
Internet commerce over the next three years. We would also like to 
clarify that this Congress has not ratified or authorized any federal 
taxes on Internet domain name registrations. The U.S. Federal Court has 
stated that Section 8003 ratifies what was previously declared to be an 
unconstitutional tax. However, it was never intended to ratify a tax on 
the Internet; it only speaks to a fee for the Intellectual 
Infrastructure Fund. Because the fee constitutes an unconstitutional 
tax, it was not ratified by section 8003. I am confident that this 
moratorium will enable Congress to develop a coherent national strategy 
of appropriate taxation of business transactions conducted over the 
Internet without hindering business opportunities and would also like 
to reiterate that this Congress has never ratified an unconstitutional 
tax on the Internet.


             INCLUSION OF NORTH DAKOTA IN THE MIDWEST HIDTA

  Mr. CONRAD. Mr. President, I rise today to thank the conferees who 
worked on the fiscal year 1999 omnibus appropriations bill for 
retention of my amendment calling for inclusion of North Dakota in the 
Midwest High Intensity Drug Trafficking Area, or HIDTA.
  As North Dakota Attorney General Heidi Heitkamp and US Attorney John 
Schneider have pointed out, North Dakota--like other Midwestern 
states--has been inundated by a relentlessly rising tide of 
methamphetamine trafficking, production, and abuse. Unless action is 
taken swiftly, the Attorney General and US Attorney warn that North 
Dakota is at high risk to attract a meth manufacturing industry.
  This is because my state's sparse population, great size, and 
abandoned buildings offer excellent locations for meth laboratories. 
Counter-drug operations in the southwestern US are also forcing this 
easily-relocated industry to find alternative production locations.
  The numbers speak for themselves. There were no meth purchases by 
undercover agents in North Dakota in 1993. By 1997, there were 181 
meth-related cases reported by state and federal law enforcement. In 
1993, meth-related cases represented only 6 percent of the drug-related 
workload of the Office of the US Attorney. In five short years this 
number has skyrocketed to 75 percent. It is undeniable that increased 
production of meth in North Dakota along with associated trafficking 
has contributed to a spike of violent crime.
  This unacceptable increase in meth-driven crime in North Dakota is 
placing a growing burden on North Dakota law enforcement, and 
represents a growing danger to the people of my state. It demands an 
immediate--and coordinated--federal response. Similar problems in the 
states of South Dakota, Iowa, Nebraska, Missouri, and Kansas were 
countered with the formation of the Midwest HIDTA.
  North Dakota meets all the statutory criteria for inclusion in the 
Midwest HIDTA. In the words of Heitkamp and Schneider, joining the 
HIDTA will allow federal, state, and local law enforcement to ``work 
together to disrupt, dismantle, and destroy street and mid-level 
elements of methamphetamine organizations and/or groups operating in 
North Dakota, the Midwest, and Canada.''
  During floor consideration of the Treasury-Postal appropriations 
bill, I was pleased to work on this matter with the distinguished 
leadership of the Treasury-Postal Appropriations Subcommittee, Senators 
Campbell and Kohl. I greatly appreciate their good work in conference 
to retain my amendment. I am also pleased that the conference report 
includes additional funding for the new HIDTAs designated in this 
legislation, and I urge the Administration to consider favorably North 
Dakota's request for $1.97 million in fiscal year 1999 funding for 
integration of my state into the Midwest HIDTA.
  Mr. President, passage of the omnibus bill is an important step in 
getting tough on methamphetamine in my state. It is simply imperative 
that there be coordinated federal, state, and local law enforcement 
response to North Dakota's drug crisis, and I again thank Senators 
Campbell and Kohl for their assistance in making this a reality.


                  District of Columbia Appropriations

  Mr. ROBB. Mr. President, I rise to bring to the Senate's attention to 
a matter of concern to the government of the District of Columbia and 
to commuters in the capital area.
  Each workday, about one thousand people a day use an informal carpool 
system to get in and out of the nation's capital. These commuters 
gather in ``slug lines'' at unofficial pick up points to catch rides 
with others driving into the District. At the end of the day, these 
``slugs'' catch rides home.
  Nearly everyone benefits from this system. The drivers get to work 
more quickly because they get to use the carpool lane. The ``slugs'' 
get a free ride. Other drivers benefit from reduce traffic. And all of 
us benefit from less pollution due to increased carpooling.
  Not everyone is happy with the slugs however. The District of 
Columbia police have raised concerns that drivers picking up slugs will 
slow traffic or create a safety hazard. As reported in recent articles 
in the Washington Post, city police officers have ticketed these 
drivers and considered forcing the commuters to find a new pick up 
point. Fortunately, District Police Chief Ramsey has decided against 
his approach. Instead, he will study the traffic situation along 14th 
Street to see how we can improve the flow of traffic.
  I welcome this approach. We may be able to address the District's 
concerns about safety and traffic congestion while preserving the slug 
lines. I've asked the managers of the legislation to consider this 
problem during conference, and if possible, to include language 
directing the Department of the Interior and the District of Columbia 
Department of Public Works to study the feasibility of providing 
commuter pick-up lanes to serve commuters in the busy 14th Street 
Corridor south of Constitution Avenue. The Interior Department and the 
District would report to the Appropriations Committees of the Senate 
and House of Representatives on their joint recommendations

[[Page S12792]]

to address this matter. Even if conference report language could not be 
included, I believe the idea of the study, with recommendations would 
be helpful.
  I would like to emphasize that many of these commuters are Federal 
employees, and so I think it's appropriate to get the federal 
government involved. I am certainly willing to work with the District 
Government to seek federal funds or easements to create commuter pick 
up lanes, and I hope the District will look closely at this option. I 
think it could be a triple play--a win with respect to the District's 
safety concerns, a win for drivers on our congested highways, and of 
course, a win for the slugs.
  Mr. President, I would appreciate hearing the comments of the joint 
managers on this issue, and I yield the floor.
  Mr. FAIRCLOTH. I think the Senator has a workable plan to move this 
toward a solution, and I urge the Department of the Interior and the 
District Government to study the matter and report back to us early 
next year.
  Mrs. BOXER. I thank the Senator from Virginia for raising this issue. 
The commuter lane proposal sounds like an excellent compromise, and I 
hope Interior and the District will begin looking at this option 
immediately.
  As the ranking Democrat of the D.C. I would like to thank Senator 
Faircloth for his efforts as Chairman of the D.C. Appropriations 
Subcommittee. He has worked hard to address the District's financial 
ills, and I am pleased that we have begun to make some progress for the 
District to resolve its serious financial problems.
  In fact, the fiscal well being of the District has improved 
dramatically. The District ended fiscal year 1997 with a budget surplus 
of almost $186 million. The June, 1998 projections suggest that the 
District may have a surplus of $302 million for fiscal year 1998.
  The fiscal year 1999 D.C. Appropriations includes $494.59 million in 
Federal Funds. This amount represents an increase of $8.39 million 
above the President's Budget request for the District of Columbia. It 
is $38.4 million below the FY 1998 level.
  With regard to the District of Columbia Funds, the legislation 
largely reflects the consensus budget formulated by the Mayor, the City 
Council, and the Control Board.
  It is important to note that because of abuses of taxpayer funds, 
there is no appropriation to the Advisory Neighborhood Commissions 
(ANCs) as provided for in the consensus budget. However, this deletion 
of funds does not preclude the District from including funds for the 
commissions in future budgets so long as there are sufficient 
safeguards to protect taxpayers' interests.
  Mr. President, with respect to specific provisions of this bill, 
there are some good things, but there are also some bad provisions.
  On the plus side, this bill includes a $25 million federal payment 
for management reform. Within these funds, special attention will be 
given to fire and emergency medical services, the reopening of the 
Chief Medical Officer's laboratory, and implementation of a high-speed 
city-owned fiber network for voice and data services.
  The bill provides funds for the repair and maintenance of public 
safety facilities in the District. The Federal highway funds made 
available to the District include $98 million for local streets.
  The bill includes a $25 million federal contribution to the 
Washington Metropolitan Area Transit Authority for improvements to the 
Metrorail station at the site of the proposed Washington Convention 
Center project.
  I am pleased that the bill sets aside $5 million to address the 
chronic need for additional community-based housing facilities for 
seriously and chronically mentally ill individuals in the District.
  The bill also provides an appropriation to the Children's National 
Medical Center for the Community Pediatric Health Initiative. This 
reestablishes an important public-private partnership to provide 
pediatric services to high risk children in medically under-served 
areas.
  The bill requires the Control Board to report to Congress on the 
status of any agreements between the District and all non-profit 
organizations that provide medical and social services to the 
District's residents. This will ensure that the District re-evaluates 
the decisions to terminate support and where possible renew support for 
these critical programs, including those of Children's Hospital.
  I am especially pleased that funding for homeless programs in the 
District will remain level for fiscal year 1999. In previous years, 
these programs were threatened with funding cuts and I am happy that 
these cuts are no longer being proposed.
  Finally, I am pleased that this legislation does not divert any funds 
from the District of Columbia Public School system for private school 
vouchers as was included in the D.C. Appropriations bill passed by the 
House of Representatives.
  Mr. President, unfortunately this legislation includes a number of 
objectionable provision which violate the principle of home rule and 
infringe on the rights of District residents.
  Again this year, the bill includes a ban on the use of local funds 
for abortions, and a ban on the use of local funds to expand health 
care benefits to unmarried couples. I continue in my strong opposition 
to these provisions.
  I also have serious concerns about the provision to cap the funds 
available to reimburse attorneys who represent children who obtain 
special education placements in hearing sunder the Individuals with 
Disabilities Education Act. This provision will seriously inhibit the 
ability of children with special needs to obtain their legal right to 
an education.
  I am disappointed by the inclusion of a provision that prohibits the 
District from using funds to provide assistance to any civil action to 
require Congress to provide the District of Columbia with voting 
representation.
  The bill also includes a repeal of a recently enacted residency 
requirement, a matter of some controversy.
  I know that the Administration strongly objects to several provisions 
in the bill, including a ban on funds to organizations that participate 
in needle exchange programs.
  All of these provisions are unnecessary and inappropriate intrusions 
into the District's own priorities and the rights of its citizens.
  Overall, I support the proposed allocation of funds for the District 
of Columbia, but I am disappointed by the many inappropriate riders in 
this legislation. Without these provisions, this would have been a much 
better bill.
  Again, I would like to recognize Chairman Faircloth, and to 
acknowledge the hard work of the staff for this bill: Mary Beth 
Nethercutt of the Majority Staff, Minority Deputy Staff Director, Terry 
Sauvain; Liz Blevins and Neyla Arnas of the Committee staff; and 
Danielle Drissel of my legislative staff.
  I would especially like to express my appreciation to Senator Byrd, 
the Ranking Democrat of the Committee on Appropriations, for assigning 
his Deputy Staff Director, Terry Sauvain, to serve as Minority Clerk of 
the D.C. Appropriations Subcommittee. Terry is a long time 
appropriations staff member who is a consummate professional and a 
pleasure to work with, and I have really enjoyed and counted on his 
advice and council.


       Glacier Bay National Park and Preserve Commercial Fishing

  Mr. STEVENS. Mr. President, the omnibus package, H.R. 4328, includes 
a measure involving commercial fishing in Glacier Bay and Upper Dundas 
Bay within Glacier Bay National Park and Preserve. While working on 
this in the past weeks, a fisherman commented to my office that the 
choices presented are like choosing whether to cut off your finger, 
hand, or arm. In short, because the Department of the Interior has 
taken the position that commercial fishing in Glacier Bay and Dundas 
Bay should end, there simply has been no solution that Alaskans can 
fully support. In the omnibus bill we have chosen the lesser of evils.
  Without Congressional action, the National Park Service would have 
gone forward with regulations to phase out fishing in the Bay over 15 
years and eventually ban it altogether. The National Park Service would 
also have blocked Dungeness crab fishermen who fish in Upper Dundas Bay 
and the Beardslee Islands, the so-called wilderness waters, from 
continuing a fishery that has existed for nearly 20 years

[[Page S12793]]

with no evidence of environmental damage. Whether the Service would 
have ever agreed to a fair plan to compensate these crabbers is 
doubtful. Discussions have been ongoing for three years without the 
Park Service putting a compensation plan on the table.
  Without Congressional action, the Service might have proceeded with 
plans to shut down the scallop fishery, stop flounder fishing, close 
out crabbing, and block fisheries outside Glacier Bay itself, again 
relying on what it believes are its inherent powers to stop commercial 
activities in parks, the spirit and letter of the Alaska National Lands 
Conservation Act to the contrary. In my opinion and the opinion of the 
State of Alaska, the Service has no such authority because regulation 
of fisheries is a state prerogative in Alaska as well as the rest of 
the nation. Furthermore, the Alaska Department of Law maintains that 
the submerged land within Glacier Bay and, as a result, the water 
column above it, both fall under the jurisdiction of the State of 
Alaska under the Submerged Lands Act and the Alaska Statehood Act.
  When this issue was brought before this Congress, I supported Senator 
Murkowski's amendment to the Interior Appropriations bill to block the 
Park Service's planned regulations to give us more time to work out a 
solution. I also cosponsored Senator Murkowski's bill to resolve this 
problem once and for all. Unfortunately, because of Administration 
opposition, the bill did not pass Congress, leaving us with the 
provision for a moratorium on regulations in the Interior bill.
  As we approached the end of the fiscal year, the Administration 
became more vocally opposed to allowing traditional fisheries in 
Glacier Bay to continue even though there is no scientific evidence 
that either the fisheries or other resources which depend on them are 
in trouble. For example, whale counts are actually up in Glacier Bay, 
an indication that there is an abundance of fish upon which to feed. 
Secretary Babbitt threatened to recommend a veto of the bill if the 
provision blocking the Park Service's fishing ban was included in the 
spending bills.
  At the same time, the Congressional leadership stepped up efforts to 
develop an omnibus spending package the President would sign. As much 
as they supported the Delegation's efforts in Glacier Bay, the 
Congressional leadership were not willing to give the President any 
excuse to veto bills and shut down the government to divert attention 
from other matters. I was asked to try to work out a solution that the 
President would accept. We worked for nearly a week to develop a plan; 
and after consultation with fishermen, crabbers, and the other members 
of the Delegation, I reluctantly concluded that this proposal was 
better than taking no action at all.
  The plan we developed allows the fishermen who have historically 
operated in Glacier Bay to continue to fish for the rest of their 
lives. We had sought the right to allow fishermen to pass on their 
permits to their children or assignees, but that was rejected by the 
Interior Department. Had the regulations gone forward in their current 
form, all fishermen would have been banned from the Bay in 15 years.
  The proposal also offers a compensation package to the five or six 
crabbers who will be forced out of designated wilderness areas in 
Glacier Bay and Upper Dundas Bay. It will compensate them for their 
permit and lost income for six years or $400,000, which ever is 
greater. In addition, if a fisherman chooses to be compensated for his 
or her permit and lost income, he or she may also sell to the Secretary 
his or her boat and gear for additional compensation. Each crabber will 
obviously have the option of keeping their boat and gear and fishing 
elsewhere. Lost income is net after expenses which should be calculated 
by taking gross receipts and subtracting the cost of insurance, crew, 
fuel, and bait. Paper losses such as depreciation used for Internal 
Revenue purposes only, should not be subtracted in calculating net 
income.
  The crabbers will have until February 1st to file a claim and the 
Interior Department will then have six months to act on those claims. 
There will be an appeals process with a right to go to court if no 
agreement is reached on an acceptable compensation plan. The office of 
the Assistant Secretary for Parks and Wildlife has pledged to me to 
expedite this process so the Dungeness crabbers will be compensated as 
quickly as possible.
  The compromise that was reached also maintains the State of Alaska's 
prerogatives with respect to state management of the state's fisheries. 
There will be a cooperative management plan developed jointly by the 
Interior Department and the State of Alaska. As that plan is developed, 
I have been assured by the Secretary's office that the Glacier Bay 
Working Group representing the fishing industry will be consulted. 
There will be a full public process including hearings, testimony, and 
an opportunity to comment on any proposed plan.
  In addition, the legislation includes a savings clause to clarify 
that nothing in the Act undermines the power and authority of the State 
of Alaska to manage fisheries in the State. Finally, I want to make 
clear that unless explicitly provided in the Act, the legislation is 
not intended to amend the Alaska National Interest Lands Conservation 
Act which generally and specifically governs management of Glacier Bay 
National Park and Preserve as well as subsistence and commercial 
fishing.
  With respect to subsistence fishing, while the Interior Department 
would not agree to explicitly allow subsistence activities, I was 
assured by the Secretary's office that personal use fisheries could 
continue, most notably for the people of Hoonah who have had a long 
running dispute with the Park Service on this issue. I was advised that 
the Park Service is authorized under National Park Service Organic Act 
to recognize a state-run personal use fishery.
  Of critical importance is the status of the outer waters of Glacier 
Bay. The original proposal made by the Interior Department offered no 
assurance that commercial fishing could continue outside the Bay 
itself. Language was specifically included to address this shortcoming, 
making it clear that commercial fishing is authorized under law and 
will continue to be permitted in the outer waters. Although the 
Secretary, acting jointly in consort with the State of Alaska, through 
the cooperative management plan, may retain the right to protect park 
resources, that goal must be achieved through reasonable regulation. 
For example, an area around a seal rookery may be closed to salmon 
fishing to protect that specific location, but the rest of the outside 
waters must remain open to salmon fishing.
  I view this compromise as an insurance policy, a safety net that 
offers better protection to Glacier Bay's fishermen than was offered by 
the draft Park Service regulations. But I do not view it as the end of 
the story. There are provisions I do not like.
  Senator Murkowski has already indicated his intention to introduce 
legislation on this issue and hold hearings in the Senate Energy 
Committee which he chairs. I also have indications that Congressman 
Young, the Chairman of the House Resources Committee, has similar 
plans. The Secretary of the Interior agreed to extend the comment 
period on the pending agency regulations until January 15, 1999.
  One issue that has not been addressed in this legislative compromise 
are the losses of local communities and fish processing companies. The 
Interior Department acknowledges that this is a shortcoming and has 
pledged to work with me and the rest of the Delegation to address this 
issue. I pledge to work with local communities and processors in the 
months ahead.


                       Internet Speech Regulation

  Mr. LEAHY. Mr. President, last week's Washington Post proclaimed in 
one headline, ``High Tech is King of the Hill,'' citing the passage of 
several bills which I actively supported, including restricting 
Internet taxes, enhancing protection for copyrighted works online, and 
encouraging companies to share information to avoid Year 2000 computer 
failures. Yet, anyone familiar with the Internet proposals buried in 
the Omnibus Appropriations measure would be writing a different 
headline this week.
  Certain provisions in this huge spending bill repeat the mistakes 
about regulating speech on the Internet that the last Congress made 
when it passed the Communications Decency Act, the

[[Page S12794]]

 ``CDA-I.'' I opposed the CDA from the start as fatally flawed and 
flagrantly unconstitutional. I predicted that the CDA would not pass 
constitutional muster and, along with Senator Feingold, sought to 
repeal the CDA so that we would not have to wait for the Supreme Court 
to fix our mistake.
  We did not fix the mistake and so, as I predicted, the Supreme Court 
eventually did our work for us. All nine Justices agreed that the CDA 
was, at least in part, unconstitutional. Justice Stevens, writing for 
seven members of the Court, called the CDA ``patently invalid'' and 
warned that it cast a ``dark shadow over free speech'' and 
``threaten[ed] to torch a large segment of the Internet community.'' 
Reno v. ACLU, 117 S.Ct. 2329, 2350 (1997). The Court's decision came as 
no surprise to me, and should have come as no surprise to the 84 
members of the Senate who supported the legislation.
  We had been warned by constitutional scholars and Internet experts 
that the approach we were taking in the CDA would not stand up in court 
and did not make sense for the Internet. In the end, three district 
court panels and the Supreme Court all ultimately agreed in striking 
down the CDA-I as an unconstitutional restriction on free expression.
  Congress is about to make the same mistake again by including in the 
Omnibus Appropriations bill the ``Child Online Protection Act,'' or 
``CDA-II.'' I have spoken before, on July 21, 1998, about my opposition 
to a version of this legislation that was included, without debate, on 
the annual funding bill for the Commerce, State and Justice 
Departments.
  My opposition to these efforts to regulate Internet speech should not 
be misunderstood. I join with the sponsors of these measures in wanting 
to protect children from harm. I prosecuted child abusers as State's 
Attorney in Vermont, and have worked my entire professional life to 
protect children from those who would prey on them. In fact, earlier 
this month, the Congress passed the Hatch-Leahy-DeWine version of the 
``Protection of Children from Sexual Predator Act,'' H.R. 3494, to 
enhance our Federal laws outlawing child pornography. We should act 
whenever possible to protect our children, but we have a duty to ensure 
that the means we use to protect our children do not do more harm than 
good. As the Supreme Court made clear when it struck down CDA-I, laws 
that prohibit protected speech do not become constitutional merely 
because they were enacted for the important purpose of protecting 
children.
  CDA-II makes a valiant effort to address many of the Supreme Court's 
technical objections to the CDA. Nevertheless, while narrower than its 
CDA-I predecessor, this legislation continues to suffer from 
substantial constitutional and practical defects. The core holding of 
the CDA-I case was that ``the vast democratic fora of the Internet'' 
deserves the highest level of protection from government intrusion--the 
highest level of First Amendment scrutiny. Courts will assess the 
constitutionality of laws that regulate speech over the Internet by the 
same demanding standards that have traditionally applied to laws 
affecting the press.
  The CDA-II provisions included in the Omnibus Appropriations bill do 
not meet those standards.
  CDA-II would penalize the posting ``for commercial purposes'' on the 
World Wide Web of any material that is ``harmful to minors.'' Penalties 
include fines of up to $50,000 per day of violation, up to 6 months' 
imprisonment and, under a separate section of the bill, forfeiture of 
eligibility for the Internet tax moratorium. Like the old CDA-I, this 
new provision creates an affirmative defense for those who restrict 
access by requiring use of a credit card, debit account, adult access 
code, adult personal identification number, a digital certificate 
verifying age, or other reasonable measures. This new criminal 
prohibition raises a number of constitutional and practical issues that 
have been entirely ignored by this Congress.
  First, the scope of CDA-II is unclear. The prohibition applies to 
anyone ``engaged in the business'' of making any communication for 
commercial purposes by means of the World Wide Web. Vendors selling 
pornographic material from Web sites are clearly covered, but also many 
other unsuspecting persons and businesses operating Web sites will 
likely fall under this prohibition. Under new section 231(e)(2)(B) of 
title 47, U.S.C., ``it is not necessary that the person make a profit'' 
or that the Web site ``be the person's sole or principal business or 
source of income.'' Does CDA-II cover companies that offer free Web 
sites, but charge for their off-line services? If CDA-II does not apply 
in that circumstance, would the measure have the unintended effect of 
encouraging the posting of ``harmful'' materials on the Web for free? 
Does CDA-II apply to a business that merely advertises on the Web? Does 
CDA-II apply to public service postings sponsored by businesses on the 
Web?
  In the face of this uncertainty, entrepreneurs, small businesses and 
other companies who maintain a Web site as a way to enhance their 
business may face criminal liability if they post material--for free, 
for advertising, or for a fee--which some community in this country may 
perceive to be ``harmful to minors.''
  Second, CDA-II adopts a ``harmful to minors'' standard that will 
likely be found unconstitutional. CDA-II defines ``material that is 
harmful to minors'' as what the ``average person, applying contemporary 
community standards,'' would find, taken as a whole and with respect to 
minors, is designed to appeal to the prurient interest, depicts in a 
manner patently offensive to minors actual or simulated sexual acts or 
contact, and lacks serious literary, artistic, political or scientific 
value. The provision further defines a ``minor'' to be ``any person 
under 17 years of age.''
  The ``17 year old'' age cutoff in CDA-II makes this measure 
significantly more restrictive than the ``harmful to minors'' statutes 
adopted in most states, including in my home state of Vermont. Most 
state ``harmful to minors'' statutes restrict materials that would be 
harmful to minors under the age of 18. These statutes are interpreted 
to prohibit only that material which would be harmful for the oldest 
minor. Thus, by setting the age at ``under 17,'' CDA-II would prohibit 
material on the Web that is inappropriate or harmful for 16 year olds. 
Consequently, CDA-II would impose more restrictions on the material 
that can be freely accessible on the World Wide Web than most states 
impose on materials available for sale in bookstores, news stands, and 
movie theaters within their borders.
  Yet, unlike books, magazines, movies or even broadcasts, where the 
vendor can control the physical places to which the material is 
distributed, a person posting material on a Web site cannot restrict 
access to only Internet users from certain geographic regions. Indeed, 
Web site operators often cannot determine the region of the country, or 
the world, from which users are initiating their access.
  As a consequence, Web site operators will have to tailor the material 
accessible on their sites to content that would pass muster in the most 
conservative community in the country for children 16 years old and 
younger. The standards of every other community would be discounted. 
Thus, the bill's core effect will be to set--for the first time--a 
single, national harmful to minors standard for material on the World 
Wide Web. Moreover, this standard will be more restrictive than those 
already in place in most states.
  This result runs counter to existing ``harmful to minors'' law as 
articulated by the Supreme Court. The Supreme Court has never approved 
of a single, national obscenity standard, nor has it approved a 
``harmful to minors'' statute based on a national, as opposed to local, 
standard. On the contrary, the Supreme Court in Miller v. California, 
413 U.S. 15, 30-32 (1973), stated that:

       our Nation is simply too big and too diverse . . . to 
     reasonably expect that such standards could be articulated 
     for all 50 States in a single formulation. . . . It is 
     neither realistic nor constitutionally sound to read the 
     First Amendment as requiring that the people of Maine or 
     Mississippi accept public depiction of conduct found 
     tolerable in Las Vegas, or New York City.

  Reducing the material available on the Web to that which only the 
most conservative community in the country deems to be appropriate for 
16-year-olds, could very well remove material that is both 
constitutionally protected and socially valuable. The online 
publication of the Starr report, in whole or in part, Robert 
Mappelthorpe's pictures, or PG, PG-13, and certainly R-

[[Page S12795]]

rated movies or TV shows would be suspect.
  CDA-II provides an affirmative defense for online publishers of such 
material that demand credit card numbers or other adult identification. 
A similar defense did not save CDA-I, however, and remains insufficient 
to reduce the significant burden on protected speech that the new 
prohibition imposes. The Supreme Court noted in analyzing this defense 
in CDA-I, that such a requirement would ```completely bar adults who do 
not have a credit card and lack the resources to obtain one from 
accessing any blocked material.''' 117 S.Ct at 2337.
  In addition to burdening the speech rights of adults, the Supreme 
Court questioned the effectiveness of this defense in CDA-I to protect 
children, stating:

     . . . it is not economically feasible for most noncommercial 
     speakers to employ such verification . . . Even with respect 
     to commercial pornographers that would be protected by the 
     defense, the Government failed to adduce any evidence that 
     these verification techniques actually preclude minors from 
     posing as adults. Given that the risk of criminal sanctions 
     `hovers over each content provider, like the proverbial sword 
     of Damocles,' the District Court correctly refused to rely on 
     unproven future technology to save the statute.'' 117 S.Ct. 
     at 2349-50.

  The technology required to exercise the affirmative defense remains 
practically difficult and prohibitively expensive for many Web sites. 
As a result, just as the Supreme Court found with CDA-I, CDA-II would 
effectively chill the publication of a large amount of valuable, 
constitutionally-protected speech on popular commercial web sites such 
as CNN.com, amazon.com, or the New York Times online. As the Court 
restated in its decision on CDA-I, ```[t]he level of discourse reaching 
a mailbox simply cannot be limited to that which would be suitable for 
a sandbox.''' 117 S.Ct. at 2346.

  Third, CDA-II will be ineffective at protecting children. In 
evaluating whether the burdens that CDA-II will place on Web publishers 
are justified, we must take a realistic look at how well these new 
restrictions will work to protect children from harmful online 
materials. As the Supreme Court noted, adult identification or 
verification techniques can be falsely used by children to gain access 
to forbidden material.
  In addition, CDA-II is limited to activity on the Web, presumably to 
capture the material that the Supreme Court believed was susceptible to 
use of verified credit cards. Those of us who use the Internet 
recognize that the Web is merely one of several Internet protocols, 
although the one most amenable to pictorial or graphic displays. 
Limiting the reach of this measure to the Web excludes newsgroups, FTP 
sites, e-mail, chat rooms, private electronic bulletin board systems 
(BBS), and gopher sites, where children may continue to access harmful 
materials. Indeed, I am concerned that the unintended consequence of 
applying CDA-II's ill-considered speech restrictions on the Web will 
simply force Internet content providers and users to use or develop 
other protocols with which they would be able to exercise their First 
Amendment rights unfettered by the threat of criminal prosecution.
  Those of us who use the Internet and the World Wide Web also 
recognize that this is a global medium, not just a network under United 
States control. Indeed, a large percentage of content on the Internet 
originates outside the United States, and is as accessible over the Web 
as material posted next door. Objectionable material is likely to come 
from outside the United States and be unreachable by American laws.
  The Justice Department, in a letter dated October 5, 1998, on CDA-II 
that I would ask to be included in the record, stated, ``the practical 
or legal difficulty in addressing these considerable alternative 
sources from which children can obtain pornography raises questions 
about the efficacy of the [CDA-II] and the advisability of expending 
scarce resources on its enforcement.''
  The warning by the Justice Department that this measure will detract 
from current efforts to stop the distribution of illegal child 
pornography has apparently gone unheeded by Congress. The Justice 
Department has made clear that CDA-II would ``divert the resources that 
are used for important initiatives such as Innocent Images,'' a 
successful online undercover program to stop child predators and 
pornographers. The work that the Justice Department has done in going 
after the worst offenders, highlighted by the recent international 
crack down on child-pornography, should not be diluted by broadening 
their enforcement load to embrace an unconstitutional standard.
  Fourth, Congress simply has not done its homework to consider 
alternative effective means to protect children from harmful online 
materials. The Senate is considering CDA-II, including its creation of 
a new Federal crime, as part of an omnibus spending measure. Until 
recently the Senate had rules and precedent against this kind of 
legislating on an appropriations bill. Under Republican leadership, 
that discipline has been lost and we are left to consider significant 
legislative proposals as part of annual appropriations. These matters 
are far-reaching. They deserve full debate and Senate consideration 
before good intentions lead the Senate to take another misstep in 
haste.
  The Congress has not held hearings on the CDA-II provisions before 
us. The Senate Commerce Committee hearing in February, 1998, elicited 
only the testimony of this measure's primary sponsor about a prior 
version of the bill, and no other testimony about its 
constitutionality. The Congress has made only the most minimal efforts 
to determine whether technical tools or this measure would be the least 
restrictive means of protecting children. There has been no study, no 
discussion, and no comparison of the effectiveness of various 
approaches, their likely impact on speech, and their appropriateness 
for the Internet.
  Ironically, CDA-II puts the proverbial cart-before-the-horse by 
enacting new speech restrictions at the same time the bill establishes 
a ``Commission on Online Child Protection'' to study the technical 
means available to protect children from harmful material. While the 
selection of the members of this Commission is left solely to 
Republican congressional leadership, we should at least hear from the 
Commission before legislating. As the letter from the Department of 
Justice advises, ``Congress should wait until the Commission has 
completed its study and made its legislative recommendations before 
determining whether a criminal enactment would be necessary, and if so, 
how such a statute should be crafted.'' This approach would allow 
Congress to create a record on the most effective means to solve the 
problem instead of passing an ineffective law.
  In striking the CDA-I as unconstitutional, the Supreme Court 
specifically cited ``the absence of any detailed findings by the 
Congress, or even hearings addressing the special problems of the CDA'' 
as grounds for its finding ``that the CDA is not narrowly tailored if 
that requirement has any meaning at all.'' 117 S.Ct. at 2348. The 
Congress is repeating this mistake here, since it has again not 
established a record showing that the extraordinary restrictions on 
Internet expression proposed in the CDA-II are the least restrictive 
way to achieve our goal of protecting children online. Congress is 
required to establish such a record if it seeks to impose these sorts 
of burdens of the speech of our citizens.
  Experts have told us that there are better ways to protect children 
that have less of an impact on constitutionally protected speech, 
including the use of blocking and filtering tools that give parents the 
ability to control access to harmful content both within and outside of 
the United States. Harvard Law School Professor Larry Lessig, who is an 
expert on both constitutional law and Internet law, has described at 
least one less restrictive alternative--the use of voluntary ``kid 
certificates'' online--that would have the same effect Congress is 
trying to achieve while placing far less of a burden on free speech. I 
ask that his letter be made part of the Record.
  It is precisely because these less restrictive means exist, and 
because Congress has not shown otherwise, that the CDA-II is most 
likely to fail in the courts.
  Finally, there are constructive steps that Congress can and should 
take. Although CDA-II would not solve the problems facing parents and 
educators on how to protect their children from

[[Page S12796]]

harmful and inappropriate online material, there are several steps that 
Congress could take which would prove more effective.
  We should hear from the Commission on Online Child Protection that is 
authorized in this bill to study the technical means available to 
protect children from harmful material.
  We should do more to protect children's privacy. The Omnibus 
appropriations bill contains a provision authorizing the FTC to require 
parental consent from children to give out personal information to Web 
sites aimed at children or where the age of child has been collected. 
These privacy provisions have broad support and could be a way for 
Congress effectively and constitutionally to protect children online 
without detracting from the current mission of law enforcement.
  We should not rush to legislate when non-legislative solutions may be 
more effective and consistent with our constitutional principles. 
Instead of trying to create a national harmful to minors standard, 
Congress should encourage companies and non-profit organizations who 
have responded to this problem with wide-ranging efforts to create 
child-friendly content collections, teach children about appropriate 
online behavior, and develop voluntary, user-controlled, technology 
tools that offer parents the ability to protect their own children from 
inappropriate material. Unlike legislative approaches, these bottom-up 
solutions are voluntary. They protect children and assist parents and 
care-takers regardless of whether the material to be avoided is on an 
American or foreign Web site. They respond to local and family 
concerns, and they avoid government decisions about content.
  We can and must do better than CDA-II. This measure will do almost 
nothing to protect children from harmful material online, but will 
divert Federal enforcement resources, restrict constitutionally-
protected free speech online and set a dangerous precedent for Federal 
regulation of the Internet. Perhaps worst of all, it will create the 
illusion of a solution. This Congress should not be in the business of 
lulling parents into a false sense of security while in fact doing 
nothing to protect children online.
  Many members who have supported CDA-II are no doubt motivated by the 
same thing that motivates me in this area: a desire to protect children 
online. I am afraid, however, that we have not taken the time to craft 
a legislative solution that will actually help solve this problem. The 
Congress has been put on notice that our approach will not work, and 
will probably end up in court for yet another battle. We should not run 
another ambiguous speech regulation up the flagpole and expect the 
courts to salute. We owe it to the millions of Americans who use the 
Web not to make the same mistake a second time.
  Now, Mr. President, I ask unanimous consent that a letter from Acting 
Attorney General Anthony Sutin from the Department of Justice and a 
letter from Harvard University Professor Lawrence Lessig in opposition 
to the Child Online Protection Act be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                  Washington, DC, October 5, 1998.
     Hon. Thomas Bliley,
     Chairman, Committee on Commerce,
     House of Representatives, Washington, DC.
       This letter sets forth the views of the Department of 
     Justice on H.R. 3783, the ``Child Online Protection Act'' 
     (``the COPA''), as ordered reported. We share the Committee's 
     goal of empowering parents and teachers to protect minors 
     from harmful material that is distributed commercially over 
     the World Wide Web. However, we would like to bring to your 
     attention certain serious concerns we have about the bill.
       The principal provision of the COPA would establish a new 
     federal crime under section 231 of Title 47 of the United 
     States Code. Subsection 231(a)(1) would provide that:
       ``Whoever, in interstate or foreign commerce, by means of 
     the World Wide Web, knowingly makes any communication for 
     commercial purposes that includes any material that is 
     harmful to minors without restricting access to such material 
     by minors pursuant to subsection (c) shall be fined not more 
     than $50,000, imprisoned not more than 6 months, or both.''
       Subsection 231(a)(2), in turn, would provide for additional 
     criminal fines of $50,000 for ``each day'' that someone 
     ``intentionally violates'' Sec. 231(a)(1); and Sec. 231(a)(3) 
     would provide for additional civil fines of $50,000 for 
     ``each day'' that a person violated Sec. 231(a)(1). 
     Subsection 231(b) would exempt certain telecommunications 
     carriers and other service providers from the operation of 
     Sec. 231(a)(1). Subsection 231(c)(1) would establish what is 
     denominated an ``affirmative defense'':
       ``(1) Defense.--It is an affirmative defense to prosecution 
     under this section that the defendant, in good faith, has 
     restricted access by minors to material that is harmful to 
     minors--
       ``(A) by requiring use of a credit card, debit account, 
     adult access code, or adult personal identification number; 
     or
       ``(B) by any other reasonable measures that are feasible 
     under available technology.''
       Subsection 231(e) would define, inter alia, the following 
     terms in the criminal prohibition: (i) ``by means of the 
     World Wide Web''; (ii) ``commercial purposes''; (iii) 
     ``material that is harmful to minors,'' and ``minor.'' See 
     proposed Sec. 231(e) (1), (2), (6) & (7). In particular, 
     ``material that is harmful to minors'' would be defined as:
       ``. . . any communication, picture, image, graphic image 
     file, article, recording, writing, or other matter of any 
     kind that--
       ``(A) the average person, applying contemporary community 
     standards, would find, taking the material as a whole and 
     with respect to minors, that such material is designed to 
     appeal to or panders to the prurient interest;
       ``(B) depicts, describes, or represents, in a patently 
     offensive way with respect to minors, an actual or simulated 
     sexual act or sexual contact, actual or simulated normal or 
     perverted sexual acts, or a lewd exhibition of the genitals 
     or female breast; and
       ``(C) taken as a whole, lacks serious literary, artistic, 
     political, or scientific value for minors.''
       The Department's enforcement of a new criminal prohibition 
     such as that proposed in the COPA could require an 
     undesirable diversion of critical investigative and 
     prosecutorial resources that the Department currently invests 
     in combating traffickers in hard-core child pornography, in 
     thwarting child predators, and in prosecuting large-scale and 
     multidistrict commercial distributors of obscene materials. 
     For example, presently the Department devotes a significant 
     percentage of our resources in this area to the highly 
     successful Innocent Images online undercover operations, 
     begun in 1995 by the FBI. Through this initiative, FBI agents 
     and task force officers go on-line, in an undercover 
     capacity, to identify and investigate those individuals who 
     are victimizing children through the Internet and on-line 
     service providers. Fifty-five FBI field offices and a number 
     of legal attaches are assisting and conducting investigations 
     in direct support of the Innocent Images initiative. To 
     ensure that the initiative remains viable and productive, the 
     Bureau's efforts include the use of new technology and 
     sophisticated investigative techniques, and the coordination 
     of this national investigative effort with other federal 
     agencies that have statutory investigative authority. We also 
     have allocated significant resources for the training of 
     state and local law enforcement agents who must become 
     involved in our effort. To date, the Innocent Images national 
     initiative has resulted in 196 indictments, 75 informations, 
     207 convictions, and 202 arrests. In addition, 456 
     evidentiary searches have been conducted.
       We do not believe that it would be wise to divert the 
     resources that are used for important initiatives such as 
     Innocent Images to prosecutions of the kind contemplated 
     under the COPA. Such a diversion would be particularly ill-
     advised in light of the uncertainty concerning whether the 
     COPA would have a material effect in limiting minors' access 
     to harmful materials. There are thousands of newsgroups and 
     Internet relay chat channels on which anyone can access 
     pornography; and children would still be able to obtain ready 
     access to pornography from a myriad of overseas web sites. 
     The COPA apparently would not attempt to address those 
     sources of Internet pornography, and admittedly it would be 
     difficult to do so because restrictions on newsgroups and 
     chat channels could pose constitutional questions, and 
     because any attempt to regulate overseas web sites would 
     raise difficult questions regarding extraterritorial 
     enforcement. The practical or legal difficulty in addressing 
     these considerable alternative sources from which children 
     can obtain pornography raises questions about the efficacy of 
     the COPA and the advisability of expending scarce resources 
     on its enforcement.
       Second, such a provision would likely be challenged on 
     constitutional grounds, since it would be a content-based 
     restriction applicable to ``the vast democratic fora of the 
     Internet,'' a ``new marketplace of ideas'' that has enjoyed a 
     ``dramatic expansion'' in the absence of significant content-
     based regulation. Reno v. ACLU, 117 S. Ct. 2329, 2343, 2351 
     (1997). As the Court in ACLU suggested, id. at 2341 
     (discussing Ginsberg v. New York, 390 U.S. 629 (1968)), it 
     may be that Congress could, consistent with the First 
     Amendment, enact an Internet version of a ``variable 
     obscenity,'' harmful-to-minors prohibition, analogous to 
     state-law statutes prohibiting bookstores from displaying to 
     minors certain materials that are obscene as to such minors. 
     See, e.g., American Booksellers v. Webb, 919 F.2d 1493 (11th 
     Cir. 1990), cert denied, 500 U.S. 942 (1991); American 
     Booksellers Ass'n v. Virginia, 882 F.2d 125 (4th Cir. 1989), 
     cert denied, 494 U.S. 1056 (1990), Davis-Kidd Booksellers, 
     Inc. v. McWherter, 866 S.W.2d 520

[[Page S12797]]

     (Tenn. 1993). However, it is not certain how the 
     constitutional analysis might be affected by adaptation of 
     such a scheme from the bookstore context in which it 
     previously has been employed to the unique media of the 
     Internet. Because it may be more difficult for Internet 
     content providers to segregate minors from adults than it is 
     for bookstore operators to do the same, and because the 
     Internet is, in the Court's words, a ``dynamic, multifaceted 
     category of communication'' that permits ``any person with a 
     phone line'' to become ``a town crier with a voice that 
     resonates farther than it could from any soapbox,'' ACLU, 117 
     S. Ct. at 2344, the Court is likely to examine very carefully 
     any content-based restrictions on the Internet.
       The decision in ACLU suggests that the constitutionality of 
     an Internet-based ``harmful-to-minors'' statute likely would 
     depend, principally, on how difficult and expensive it would 
     be for persons to comply with the statute without sacrificing 
     their ability to convey protected expression to adults and to 
     minors. And the answer to that question might depend largely 
     on the ever-changing state of technology, the continuing 
     progress that the private sector makes in empowering parents 
     and teachers to protect minors from harmful material, and the 
     scope and detail of the record before Congress. In this 
     regard, it is notable that the COPA also would establish a 
     Commission (see Sec. 6) to study the ways in which the 
     problem could most effectively be addressed in a time of 
     rapidly evolving technologies. In light of the difficult 
     constitutional issues, we believe that Congress should wait 
     until the Commission has completed its study and made its 
     legislative recommendations before determining whether a 
     criminal enactment would be necessary, and if so, how such a 
     statute should be crafted.
       Finally, the COPA as drafted contains numerous ambiguities 
     concerning the scope of its coverage. Such ambiguities not 
     only might complicate and hinder effective prosecution; they 
     also might ``render [the legislation] problematic for 
     purposes of the First Amendment,'' by ``undermin[ing] the 
     likelihood that the [bill] has been carefully tailored to the 
     congressional goal of protecting minors from potentially 
     harmful materials.'' ACLU, 117 S. Ct. 2344. Among the more 
     confusing or troubling ambiguities are the following:
       ``(a) While the COPA mentions that minors' access to 
     materials on the Internet `can frustrate parental supervision 
     or control' over their children, Sec. 2(1), the only 
     `compelling interest' that the COPA would invoke as a 
     justification for its prohibition is `the protection of the 
     physical and psychological well-being of minors by shielding 
     them from materials that are harmful to them,' id. Sec. 2(2). 
     The constitutionality of the bill would be enhanced if 
     Congress were to identify as the principal compelling 
     interest the facilitation of parents' control over their 
     children's upbringing, in addition to the government's 
     independent interest in keeping certain materials from minors 
     regardless of their parents' views. See, e.g., ACLU, 117 S. 
     Ct. at 2341 (noting that the statute in Ginsberg presented 
     fewer constitutional problems than the Communications Decency 
     Act because in the former, but not the latter, parents' 
     consent to, or participation in, the communication would 
     avoid application of the statute).
       ``(b) While the bill would not appear to apply to material 
     posted to the Web from outside the United States, that 
     question is not clear; and the extraterritoriality of the 
     prohibition might affect the efficacy and constitutionality 
     of the statute. See ACLU, 117 S. Ct. at 2347 n. 45.
       ``(c) It is unclear what difference is intended in 
     separately prohibiting `knowing' violations (proposed 
     Sec. 231(a)(1)) and `intentional' violations 
     (proposed ``Sec. 231(a)(2)); and there is no indication 
     why the two distinct penalty provisions are necessary or 
     desirable. Moreover, it is not clear, in subsection 
     (a)(1), which elements are modified by the ``knowingly'' 
     requirement. For example, must the government prove that 
     the defendant knew that the communication contained the 
     harmful-to-minors material? That the defendant knew the 
     materials were, in fact, harmful to minors? Nor is it 
     clear what it would mean, in the context of distribution 
     of the targeted materials over the World Wide Web, to 
     violate subsection (a)(1) ``intentionally.''
       ``(d) Proposed Sec. 231(a)(3) would provide for civil 
     penalties; but that section does not indicate how such 
     penalties are to be imposed and enforced--e.g., who would be 
     responsible for bringing civil actions. In this regard, we 
     should note that if Congress were to eliminate criminal 
     penalties altogether, in favor of civil penalties, that would 
     improve the likelihood that the statute eventually would be 
     found constitutional. See, e.g., ACLU, 117 S. Ct. at 2342 
     (distinguishing the civil penalties upheld in the 
     ``indecency'' statute at issue in FCC v. Pacifica Foundation, 
     438 U.S. 726 (1978), from the criminal penalties in the CDA).
       ``(e) The titles of Sec. 3 of the bill, and of proposed 
     Sec. 231 of Title 47, refer to materials ``sold by means of 
     the World Wide Web''; and yet the prohibition itself does not 
     appear to prohibit merely the ``sale'' of harmful material, 
     although it is limited to communications ``for commercial 
     purposes.''
       ``(f) One of the elements of the basic prohibition in 
     proposed Sec. 231(a)(1) would be that the defendant made the 
     communication ``without restricting access to such material 
     by minors pursuant to subsection (c).'' Yet subsection (c) 
     itself would provide that such a restriction of access is an 
     affirmative defense. This dual status of the ``restricting 
     access' factor appears to create a redundancy; at the very 
     least, it leaves unclear important questions regarding 
     burdens of proof with respect to whether a defendant 
     adequately restricted access.
       ``(g) The COPA definition of ``materials that is harmful to 
     minors'' would be similar to the ``variable obscenity'' 
     state-law definitions that courts have upheld in cases (cited 
     above) involving restrictions on the display of certain 
     material to minors in bookstores. Those state statutes have, 
     in effect, adopted the ``obscenity as to minors'' criteria 
     approved in Ginsberg as modified in accordance with the 
     Supreme court's more recent obscenity standards announced in 
     Miller v. California, 413 U.S. 15, 14 (19873). But the COPA's 
     definition would, in several respects, be different from the 
     definitions typically used in those state statutes, and the 
     reasons for such divergence are not clear. Is the definition 
     intended to be coterminous with, broader, or narrower than, 
     the standards approved in the cases involving state-law 
     display statutes? The breadth and clarity of the coverage of 
     the COPA's ``harmful to minors'' standards could have a 
     significant impact on the statute's constitutionality.
       ``(h) Particular ambiguity infects the first of the three 
     criteria for ``material that is harmful to minors,'' proposed 
     Sec. 231(e)(6)(A). (i) The words ``that such material'' 
     appear extraneous. (ii) It is unclear whether ``is designed 
     to'' is supposed to modify ``panders to,'' and, if not, 
     whether the ``panders to'' standard is supposed to reflect 
     the intended or the actual effect of the expression ``with 
     respect to minors.'' (iii) Which ``contemporary community 
     standards'' would be dispositive? Those of the judicial 
     district (or some other geographical ``community'') in which 
     the expression is ``posted''? Of the district or local 
     community in which the jury sits? Of some ``community'' in 
     cyberspace? Some other ``community''? Resolution of this 
     question might well affect the statute's constitutionality. 
     See ACLU, 117 S. Ct. at 2345 n.39.
       ``(i) Must the material, taken as a whole, ``lack serious 
     literary, artistic, political, or scientific value'' for all 
     minors, for some minors, or for the ``average'' or 
     ``reasonable'' 16-year-old minor? See, e.g., American 
     booksellers, 919 F2d at 1504-05 (under a variable obscenity 
     statute, ``if any reasonable minor, including a seventeen-
     year-old, would find serious value, the material is not 
     `harmful to minors' ''); Davis-Kidd Booksellers, 866 S.W. 2d 
     at 528 (same); American Booksellers Ass'n, 882 F.2d at 127 
     (sustaining constitutionality of a state variable obscenity 
     statute after state court had concluded that a book does not 
     satisfy the third prong of the statute if it is ``found to 
     have a serious literary, artistic, political or scientific 
     value for a legitimate minority of normal, older 
     adolescents'').
       ``(j) In the definition of ``engaged in the business'' 
     (proposed Sec. 231(e)(2)(B)), it is not clear what is 
     intended by the reference to ``offering to make such 
     communications.'' Also unclear is the effect of the modifier 
     ``knowingly'' in that same definition's clarification that a 
     person may be considered to be ``engaged in the business of 
     making, by means of the World Wide Web, communications for 
     commercial purposes that include material that is harmful to 
     minors only if the person knowingly causes the material that 
     is harmful to minors to be posted on the World Wide Web or 
     knowingly solicits such material to be posted on the World 
     Wide Web.'' Must the person know that the material is posted 
     on the Web? That the material is harmful to minors? That he 
     or she ``cause[d]'' the material to be posted?''
       In addition, we have concerns with certain facets of the 
     proposed Commission on Online Child Protection, which would 
     be established under Sec. 6 of the bill. The Commission would 
     be composed of fourteen private persons engaged in 
     business, appointed in equal measures by the Speaker of 
     the House and the Majority Leader of the Senate, as well 
     as three ``ex officio'' federal officials (or their 
     designees): the Assistant Secretary of Commerce, the 
     Attorney General and the Chairman of the Federal Trade 
     Commission. The principal duty of the Commission, see 
     Sec. 6(c)(1), would be:
     ``. . . to conduct a study . . . to identify the 
     technological or other methods to help reduce success by 
     minors to material that is harmful to minors on the Internet, 
     [and] which methods, if any--
       ``(A) that the Commission determines meet the requirements 
     for use as affirmative defenses for purposes of section 
     231(a) . . . ; or
       ``(B) may be used in any other manner to help reduce such 
     access.''
       If subsection (A) of this provision were construed to 
     permit or to require the Commission to ``determine,'' as a 
     matter of law, which methods would satisfy the affirmative 
     defense established in Sec. 23(c), it would violate the 
     constitutional separation of powers because most of the 
     Commission members would be appointed by congressional 
     officials and would not be appointed in conformity with the 
     Appointments Clause of the Constitution, article II, section 
     2, clause 2. Accordingly, we would urge deletion of the 
     portion of Sec. 6(c)(1) that follows the word ``Internet.'' 
     For similar reasons, we urge deletion of Sec. 6(d)(4), which 
     would require the Commission, as part of the report it 
     submits to Congress, to describe ``the technologies or 
     methods identified by the study that may be used as 
     affirmative defenses for purposes of section 231(c) . . .'' 
     (Even if such a delegation of responsibility to the proposed 
     Commission

[[Page S12798]]

     were otherwise permissible, it would be unwise, in our view, 
     as a matter of policy to permit the Commission--in essence--
     to make such determination about a criminal offense.)
       Thank you for the opportunity to present our views on this 
     matter. The Office of Management and Budget has advised that 
     there is no objection from the standpoint of the 
     Administration's program to the presentation of this report.
           Sincerely,
                                                 L. Anthony Sutin,
     Acting Assistant Attorney General.
                                  ____



                                           Harvard Law School,

                                  Cambridge, MA, October 10, 1998.
     Re H.R. 3783.

     Hon. John McCain,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I note that the Senate passed a version 
     of Congressman Oxley's H.R. 3783 earlier this year. On 
     September 11, I testified before the Subcommittee on 
     Telecommunications, Trade, and Consumer Protection, of the 
     House Committee on Commerce, at a hearing devoted to various 
     proposals for regulating access to material deemed ``harmful 
     to minors.'' Subsequent developments have convinced me that 
     the approach presently being considered is unconstitutional.
       My view at that time, with respect to H.R. 3783, was that 
     while the idea of require adult IDs could in principle be 
     constitutional, the existing ID technologies would be 
     constitutionally too burdensome. Given other adult ID 
     technologies, the requirement (predominate in the statute) 
     that adult turn credit numbers over to pornographers in order 
     to get access to constitutionally protected speech struck me 
     as too great a burden.
       Since my testimony, an argument by Professor Mark Lemley of 
     The University of Texas Law School, has strengthened my view 
     that there are serious constitutional problems with this 
     approach. Lemley proposes that rather than requiring adult 
     IDs, a less restrictive alternative would be a statute that 
     facilitated the development of kid IDs--digital certificates 
     that would be bound to a user's browser, but that would 
     simply identify the user as a minor. A law could then require 
     that servers with material deemed ``harmful to minors'' block 
     access by users with such certificates. Such certificates, 
     again, would reveal no information except that a user was a 
     minor.
       Such a proposal, in my view, would be seen by a court to be 
     a clearly less restrictive alternative under First Amendment 
     jurisprudence. If so, the proposal would then render the 
     means proposed in H.R. 3783 unconstitutional.
       While there are important details to be worked out in the 
     ``kid IDs'' alternative, I will note one other feature that 
     might be of interest. If kid IDs were generally available, 
     then Congress could more easily require commercial sites not 
     to gather data from kids. As it is, any rule that commercial 
     sites not gather data from kids would be hard to enforce. But 
     if such IDs became common, these other regulatory purposes 
     would be more easily achieved.
       If there is more information that I can provide, please let 
     me know.
           With kind regards,
                                                  Lawrence Lessig.

  Mr. HATCH. Mr. President, I suppose that it is appropriate that we 
are passing this bill just a week before Halloween. It seems as though 
we have spent the better part of five days trying to unmask its 
provisions. And, some of the sections have been like ghosts--first you 
see them, now you don't.
  I confess that I share the frustration voiced by many of my 
colleagues yesterday from both sides of the aisle about this extremely 
unorthodox process. I suppose it is somewhat reassuring that Senators 
on both sides of the aisle are similarly put off by the process because 
perhaps then we will not inflict it on ourselves or the American people 
next year.
  Let me start with the fact that, at least technically, it is out of 
order to authorize on an appropriations bill. We have from time to time 
bent that rule--sometimes quite liberally. But, today, we not only bent 
it, we smashed it to smithereens. I admit to having tried to amend 
appropriations bills with authorizations during my tenure in the 
Senate, but I am quickly coming around to the notion that we must get 
back to a stricter adherence to that particular rule of the Senate.
  One of the reasons for this rule, in addition to being able to 
control the appropriations process, is to ensure that the authorizing 
committees are not circumvented. The authorizing committees of the 
Senate have developed expertise on the various policy issues we must 
consider and act upon, and I believe that we do not fully carry out our 
duty to citizens and taxpayers when we fail to vet thoroughly these 
proposed changes in law.
  I am not talking only about the Judiciary Committee, although I do 
feel strongly that we could have provided constructive input. The 
authorizing committees play an important role in policy development.
  And, I think it is essential that we assert right here and now that 
national policy is not just about money. While the appropriations 
aspects of Congress' job is certainly of utmost importance, the 
authorizing process shapes the programs and establishes the rules for 
the expenditure of federal funds. One function is as important as the 
other. I do hope that this major bypass of the authorizing committees 
will not become habit-forming.
  Second, we should all be concerned about the perception that this 
backwards procedure--one in which we are considering conference reports 
on bills that have not even passed the Senate yet--will set a precedent 
for the future.
  Mr. President, I hope my colleagues on both sides of the aisle will 
join me in a sweeping denunciation of this as anything other than a 
one-time event. We cannot consider this omnibus, catch-all, 11th hour 
approach to be a model for how to extract ourselves from the dangerous 
prospect of an imminent government shutdown.
  And, by the term``we,'' I also include the President of the United 
States. I would like to send a message to President Clinton right now. 
Don't try playing this game of legislative chicken again. I may resolve 
much differently.
  Third, while I appreciate the effort of Senators Lott and Stevens and 
others to ensure that this bill does not make permanent changes in the 
budget rules or lift the budget caps we so painstakingly negotiated in 
the Balanced Budget Act, the bill before us takes the unheard of step 
of designating tax breaks as ``emergencies.''
  While I strongly support the idea of tax relief--indeed, I have 
strongly supported each one of the items in this tax package for 
farmers--I am not so sure that we should be starting down the steep and 
slippery slope of using the emergency designation in this way. I hope 
that we will all look at this as one-of-a-kind occurrence and not as a 
new procedural loophole that we continue to use in the future.
  Fourth, Mr. President, I am also disappointed by the fact that we are 
using a portion of the surplus to pay for additional spending. I 
supported the pledge of saving the surplus for Social Security and 
thought that we should move toward that goal. This bill, however, 
breaks that promise.
  Last January, one of the President's most memorable lines from his 
State of the Union speech was ``Save Social Security first.'' In 
reality, however, he has supported, practically insisted, on using that 
same surplus for more government spending. I applaud Senator Lott and 
Speaker Gingrich for keeping this encroachment on the surplus and 
Social Security to a minimum.
  I hope that during the next Congress, we can resurrect that 
bipartisan spirit of fiscal integrity and responsibility we shared to 
get the budget balanced in order to keep the budget balanced. If we 
continue to feed the voracious appetite of big government at the trough 
of the so-called surplus, we will not have that surplus for long.
  If there is one thing that we should all be united in, it is 
maintaining a balanced budget. This is perhaps the most important thing 
that any Congress can do. It is critical for the future growth of the 
U.S. economy, increases in the standard of living for our workers, and, 
indeed, the very future of the country.
  Mr. President, the unorthodox process is certainly one issue, but it 
is not the only or even the principal issue. There are substantive 
problems with this bill as well.
  Let me begin with a provision that is under the jurisdiction of the 
Judiciary Committee. I must speak out against inclusion of Title One of 
the euphemistically entitled ``Citizens Protection Act.'' This ill-
advised provision passed the House as an amendment to the House 
Commerce, State, Justice Appropriations bill but it never passed the 
Senate. Indeed, it has been opposed by a bipartisan majority of the 
Senate Judiciary Committee. Under the guise of setting ethical 
standards for federal prosecutors and other attorneys for the 
government, it will severely hamper the ability of the Department of 
Justice to enforce federal law and cede authority to regulate the 
practice of law by federal prosecutors in our federal courts to more 
than fifty state bar associations. Indeed, this provision alone

[[Page S12799]]

caused me to consider voting against this conference report.

  The sponsor of this measure is Representative Joe McDade, a man who, 
by all accounts, was wrongly prosecuted by zealous federal prosecutors 
and who has been vindicated. I have great respect for Representative 
McDade and sympathy for the objectives he seeks to protect.
  Many in Congress and citizens around the country have been, at one 
time or another, the subject of unfounded ethical or legal charges. No 
one wants more than I to ensure that all federal prosecutors are held 
to the highest ethical standards. That is why the Judiciary Committee 
staff met with Congressman McDade and his staff. That is why we 
proposed a more narrow, workable version of his ethics amendment. That 
is why I proposed that we establish a Commission to investigate alleged 
cases of wrongdoing by federal prosecutors and to make recommendations 
to Congress.
  Unfortunately, the House Leadership and others did not accept my 
proposal. Instead, I fear that, in a understandable desire to redeem 
those who have been wronged by zealous prosecutors, we have included a 
provision which is far too broad.
  In its most relevant part, the so-called McDade provision states that 
an ``attorney for the government shall be subject to State laws and 
rules . . . governing attorneys in each state where such attorney 
engages in that attorney's duties, to the same extent and in the same 
manner as other attorneys in that state.'' This may sound innocuous, 
until one realizes why state laws and rules governing the conduct of 
attorneys exist in the first place--to protect the integrity of the 
civil and criminal legal systems in the state and govern the practice 
of law in the courts of that state. It is this very purpose which makes 
inappropriate the blanket application to federal attorneys in federal 
court of all state bar rules.
  The federal government has a responsibility and the legitimate lead 
role in the investigation and prosecution of complex multistate 
terrorism, drug, fraud or organized crime conspiracies, or in rooting 
out and punishing fraud against federally funded programs such as 
Medicare, Medicaid, and Social Security. It is in these very cases that 
the McDade provision will have its most pernicious effect.
  Federal attorneys investigating and prosecuting these cases, which 
frequently encompass three, four, or five states, will be subject to 
the differing state and local rules of each of those states, plus the 
District of Columbia, if they are based here. Their decisions will be 
subject to review by the bar and ethics review boards in each of these 
states at the whim of defense counsel, even if the federal attorney is 
not licensed in that state. Practices concerning contact with 
unrepresented persons or the conduct of matters before a grand jury, 
perfectly legal and acceptable in federal courts, will be subject to 
state bar review and, as a result, could put an end to some undercover, 
federal investigations. And the very integrity and success of sensitive 
investigations could be compromised by the release of information 
during the course of these reviews. This provision is also an open 
invitation to clever defense attorneys to stymie federal criminal or 
civil investigations by bringing frivolous state bar claims.
  Mr. President, the McDade provision is opposed by Attorney General 
Reno and by the Administration. It is opposed by a bipartisan group of 
six former Attorneys General of the United States from the Nixon, 
Carter, Reagan and Bush administrations. It is opposed by the Director 
of the FBI, the Administrator of the Drug Enforcement Administration, 
and the Director of the Office of National Drug Control Policy. It is 
opposed by law enforcement organizations such as the Fraternal Order of 
Police, the National Sheriffs Association, the National District 
Attorneys Association and the Federal Criminal Investigators 
Association. The National Victims Center opposes it on behalf of the 
victims of crime. And this provision is vigorously opposed by an 
overwhelming bipartisan majority of the Senate Judiciary Committee, the 
committee with jurisdiction over this matter. The Committee's Ranking 
Member Senator Leahy has opposed this provision. Former Committee 
Chairmen Senators Kennedy and Thurmond, and Committee members Senators 
Sessions, Kohl, DeWine, Durbin, Abraham, Feingold, Thompson, and 
Feinstein have also written in opposition.
  I would note, however, that in response to our concerns, the 
Leadership has inserted a provision which will delay the implementation 
of this provision for six months. At the very least, this will give the 
Department of Justice and others the opportunity to educate the 
Congress as to the serious effect this blanket provision will have on 
law enforcement. It is my hope and expectation that, during the next 
six months, we will be able to develop a more workable and effective 
solution.
  In addition, the so-called 100,000 Teachers program so trumpeted by 
President Clinton will do virtually nothing for Utah. As if the concept 
of this teacher hiring program would be any more effective than the 
100,000 cops program, we are appropriating $1.2 billion at the 
insistence of President Clinton and under threat of government 
shutdown.
  Well, Mr. President, Utah is continually disadvantaged by the use of 
the Title I funding formula, which is how this money will be 
predominantly allocated among the states. Under this formula, we are 
year after year punished for our demographics. We will be lucky to eke 
enough out of this grant to hire a handful of teachers per district. 
And, the irony is that Utah ranks among those states with the highest 
average class sizes. This program claims reduction of class size to be 
its raison d'etre. I think not.
  Furthermore, Mr. President, the President had an opportunity to 
reward states that were taxing themselves heavily for education and 
that were addressing the needs of poorer and rural school districts 
with state funds. Did he support an appropriation for the effort and 
equity component of the Title I formula? No, he did not.
  And, what happened to ed-flex, one of the more innovative, albeit 
common sense, educational reforms we have seen in recent years? We are 
told the President would have vetoed the bill with the ed-flex 
provisions in it. I find myself resentful that I am in the position of 
being grateful for the limited flexibility that has been incorporated 
into the Teacher program.

  I do not mean to cast any aspersions on my colleagues, who I know 
worked very hard to keep some local control in this program and who 
support educational flexibility as much as I do.
  But, I ask President Clinton: What is your problem with giving states 
and local school districts some authority to make decisions about 
resource allocation? Are you afraid that the state or the locally 
elected boards of education may have a different priority than you do?
  I am most annoyed at this lost opportunity to give states and local 
school districts some unrestricted federal assistance. There is no 
question in my mind that Utah could stretch the impact of federal help 
much further if given the freedom to make these determinations and to 
pool resources more effectively.
  In view of all of this, some have suggested that I vote against this 
bill. I will say that on the basis of a few of these provisions, I was 
tempted to do so.
  But, there are also some very worthy provisions in the bill which 
mitigate its poorer aspects.
  For example, I am pleased that the tax extenders package is included 
in this bill. Despite my dislike for the idea of inserting a tax bill 
in an appropriations bill, I am glad we are getting this done. These 
tax provisions should not be allowed to expire; in fact, we ought to be 
making them permanent so we would not have to face this annual 
expiration crisis.
  I am particularly pleased that the bill accelerates the deduction for 
health insurance premiums for self-employed people. It is about time we 
gave entrepreneurs a break on this.
  I support the funding of the empowerment zones. This program is a 
powerful tool for revitalizing our urban areas; and I appreciate the 
fact that much of it is private sector driven.
  Of course, the Interior Department appropriation, which is contained 
in the Omnibus bill, is critical to Utah. It contains funds for 
Washington County's desert tortoise habitat conservation program; the 
Bonneville Shoreline

[[Page S12800]]

Trail; program development and facility construction at the Grand 
Staircase-Escalante National Monument; and a prohibition on funds to 
study draining Lake Powell or decommissioning the Glen Canyon dam.
  While I am critical of the Administration's educational priorities, I 
support the additional funds for IDEA and Impact Aid. Utah, because of 
our heavy concentration of federal installations, will benefit from 
this sizable boost in Impact Aid.
  I am sincerely grateful to my colleagues on the Appropriations 
Committee and in the leadership for their attention to the pressing 
transportation needs in Utah as well as to the planning that is 
underway for security at the 2002 Winter Olympic Games.
  Staging this event is going to require a state-of-the-art 
transportation system, including intermodel centers, light rail, an 
adequate fleet of buses, and intelligent transportation systems. This 
appropriation will give Utah the ability to move ahead in these areas.
  Additonally, I am extremely worried about our defense. We have 
alarming reports that entire air squadrons are grounded for lack of 
spare parts to keep planes in the air. We are told that junior officers 
and experienced non-commissioned officers are packing up and leaving 
the service, creating manpower and staffing problems in every branch of 
the military.
  Military readiness backs up diplomacy. The latter cannot succeed 
without the former. We simply must stop using the defense budget like a 
bank we can go to for spending offsets when we want them. We are 
risking our nation's strength and ability to influence outcomes 
throughout the world. And, what is more, if we do not properly maintain 
equipment, if we do not invest in new technologies, if we do not 
provide adequate housing and medical care, we do not honor our men and 
women in uniform.
  This bill begins the process of recognizing the importance of 
reinvesting in defense. I support the supplemental spending in this 
bill for defense, particularly the emphasis on readiness and personnel.
  Some defense funds are also directed toward drug interdiction 
efforts. This is one of several positive actions taken in this bill to 
fight the war on drugs. Drugs are poisoning our society, particularly 
our children. Drugs contribute to a variety of other crimes, including 
murders and robberies. We must not give up trying to eradicate this 
cancer from our communities, and I applaud the addition of these anti-
drug measures to this bill.
  I remember when, more than a year ago, Speaker Gingrich, Congressman 
Hastert, and I met to discuss how we might force this Administration to 
focus on the worsening drug problem. We decided that we needed to 
undertake a comprehensive, bicameral effort. And so we did. We met with 
the Administration, held numerous hearings, and worked in a cooperative 
manner, extending our hands across the Capitol in a united effort to do 
what's best for our children.
  I am pleased to say that our efforts have led to some success. A 
number of these important provisions were produced and considered by 
the Senate Judiciary Committee. I want to express my pleasure with the 
decision to include my proposal to reauthorize the Office of National 
Drug Control Policy. As well, I am pleased that we were able to include 
the Drug Demand Reduction Act, a measure sponsored by Congressman 
Portman in the House. I was pleased to work with Congressman Portman on 
getting this measure considered and put in a form which would pass the 
Senate. In fact, I recently introduced the Senate companion measure. 
For all of those involved in the effort to include this important, 
comprehensive anti-drug package in the bill--Speaker Gingrich; Senators 
Coverdell, Grassley, and DeWine; and Congressmen Hastert, McCollum, 
Portman and others--I want to express my congratulations and thanks.

  Mr. President, let me conclude by saying that although there are some 
very ligitimate things to complain about regarding the bill--and 
process is one of them--we must recognize as well as the bill is a 
compromise. And, a compromise by definition means that neither side 
gets everything it wants.
  If I were king, would I have put forward this bill? Certainly not. 
But, I am not king, and neither is Senator Lott nor Senator Stevens. 
Neither is President Clinton nor Representative Gephardt.
  The stakes in this negotiation were particularly high. We were in a 
situation in which we were faced with an imminent shutdown of the 
federal government and all of the confusion, disruption, and 
dislocation that entails. So, when asked by pundits why the Republicans 
did not hold firm on a key issue like redirecting $1.2 billion in 
educational assistance to states and local schools with fewer strings 
attached, the answer is not difficult. Because in our system of checks 
and balances, the President has the veto pen.
  Had we engaged in a war of wills, we could have held out for a 
perfect version of this educational component--a more perfect version 
of the entire appropriation--but the result would not necessarily be 
good for the country. Maybe some day, the American people will reward 
Republicans for being better statesmen than they are politicians.
  Instead we negotiated a bill that is, indeed, a compromise. There are 
beneficial elements to it. It is not all bad. I would like to commend 
the Majority Leader, Senator Lott, and Speaker Gingrich for their 
efforts on this bill. Faced with a situation in which we could not act 
on the regular appropriations bills individually, as we would all have 
preferred, he steered us through this negotiation in the best manner he 
could. He deserves great credit, and he deserves our support.
  How we ended up in this situation has already been addressed by 
several members on this side of aisle. Suffice it to say that it should 
not be necessary to file cloture petitions on appropriations bill; it 
should not be necessary to debate nongermane amendments ad infinitem. 
But, regardless of how we ended up here, we have made the best of it, 
and, I believe, have finally delivered a reasonable appropriations 
package.
  It is always easier to criticize a compromise than it is to carve one 
out of disparate views and agendas. I have had some experience in this. 
I have often been criticized for a result that was not viewed as 
perfect or politically advantageous, even if it was fair or worthwhile.
  This omnibus appropriation is not perfect. I dare say the Majority 
Leader would not say it is perfect. But, it is fair, and it is 
worthwhile. It is worthwhile because of the components I believe merit 
support, some of which I have advocated for years. It is also 
worthwhile because it will relieve the American taxpayers of the dread 
and uncertainty that the government will shutdown and of their anger 
and frustration that their government still doesn't get it.
  It is worthwhile, I believe, because it is time to put the country 
first--ahead of the ``wag the dog'' diversionary strategy and ahead of 
seeking partisan advantage on election day.
  Therefore, I will vote for this omnibus appropriations bill.


             washington state's use of the word ``olympic''

  Mr. GORTON. Mr. President, a small but important element of the 
Omnibus appropriations measure is the Olympic and Amateur Sports Act 
Amendments of 1998, and more specifically, a provision within this Act 
that recognizes that Washington state's claim to the name ``Olympic'' 
is both first in time, and first in right over the claim of the United 
States Olympic Committee.
  Vital geographic features that dominate and define the State of 
Washington, Mount Olympus in the Olympic Mountain range, within the 
Olympic National Forest on the massive Olympic Peninsula, were named 
long before Congress chartered the USOC and permitted it to use the 
word ``Olympic'' to raise money to support the Olympic games and 
encourage the USOC's activities. In an opinion interpreting the current 
statute, the United States Supreme Court noted that it was fair for 
Congress to allow the USOC to receive the benefit of its efforts to 
promote and distinguish the word ``Olympic.'' In the same vein, 
however, where the use of the word ``Olympic'' has geographical 
significance that pre-dates and is independent of the USOC, it is only 
fair that the USOC not be able to interfere with this use.
  Although there are relatively few instances in which the USOC, crying

[[Page S12801]]

``mine, mine, mine,'' has gone after any of the thousands of businesses 
in Washington state that use the word ``Olympic,'' the attitude that 
the USOC has displayed in these few instances demands correction. I 
would like to thank State Representative Jim Buck for bringing them to 
my attention. I am as much a sports enthusiast as the next person, and 
it has never been my intent to undermine the USOC's ability to raise 
money through licensing. The USOC remains a creature of Congress, 
however, and it is incumbent on us to prescribe reasonable limits--to 
remind the Committee that its privilege to the use of the word 
``Olympic'' is not absolute, and is secondary, for example, to the 
rights of geographic reference on the part of Washington state 
businesses. The provision that I have included in the Amateur Sports 
Act serves as a statutory admonition that the USOC must share the word 
``Olympic''.
  The need for a reasonable restriction on the USOC, which I believe 
this bill contains, is widely recognized in Washington state. On 
September 25, The News Tribune wrote that we have ``produced a 
reasonable and narrow compromise that will protect Washington 
businesses and protect the USOC's legitimate concerns.'' The Seattle 
Times concurred when it urged the Olympic Committee members to ``get 
over their Olympic-sized egos and support this modest and sensible 
tweaking of the law.''
  Having just chastised the USOC for its past abuses, let me say that I 
am heartened by the assurances and commitments the Committee made 
during discussion of my amendment, assurances that the past abuses were 
anomalous and inconsistent with USOC policy, and commitments that the 
USOC will not abuse its privileges with respect to the use of the word 
``Olympic.'' I trust the Committee will live up to its promise to rein 
in its organizing committees and other affiliated entities' overzealous 
pursuit of businesses using the name ``Olympic,'' even when there is no 
likelihood that such use will be confused with the Olympic games or 
activities of the USOC.
  The language in the omnibus bill is narrower than what I had included 
in the bill that passed the Commerce Committee. The ``safe harbor'' 
created for Washington as a subterfuge to obtain immunity from USOC 
action, then quickly extend their business, goods, or services to other 
locations, such as Salt Lake City, the site of the next Winter 
Olympics, with the intent of capitalizing on the games.
  To allay the USOC's concerns, the final language creates a clear safe 
harbor for businesses using the word ``Olympic'' when they operate and 
conduct most of their sales and marketing west of the Cascades. This 
safe harbor will remove the threat that hangs over the thousands of 
businesses in Western Washington--the threat that the USOC will deprive 
them of the ability to continue to use the word ``Olympic.''
  Henceforth, Olympic Cleaners in Kirkland, Olympic Auto Sales in Kent, 
Olympic Golf Repair in Port Angeles, Olympic Ambulance in Sequim, as 
well as thousands of other businesses in Washington, can rest assured 
that a creature of the Federal government, the USOC, won't come 
knocking to collect, not only their taxes, but their name.
  Finally, I point out that the language is silent about what happens 
if the business using the word ``Olympic'' substantially extends its 
operations, sales, and marketing beyond Western Washington. It 
certainly is not the intent of Congress to place Washington businesses 
using the word ``Olympic,'' in a geographical cage that constrains 
their growth so long as the operations of these Washington businesses 
do not wrongfully capitalize on the work of the USOC by confusing 
people into making an association with the Olympic games, and not the 
Olympic Mountain range, Olympic Peninsula, or other geographic 
features. No court should infer that, in creating the safe harbor for 
businesses in Western Washington, Congress intended in any way to 
affect the current law with respect to businesses operating outside of 
this area. We did not.


                   The North Pacific Pollock Fishery

  Mr. GORTON. Mr. President, after threatening to filibuster an 
appropriations measure over provisions relating to S. 1221, the 
American Fisheries Act, I now want to emphasize my support of the 
substitute version of the American Fisheries Act that has been included 
in this mammoth bill.
  It has been an unexpected privilege and a pleasure to work with, as 
opposed to against, the Senior Senator from Alaska and his staff on 
legislation affecting the allocation and management of pollock in the 
North Pacific. Together, we have crafted a substitute measure designed 
to achieve the goals of his original legislation, which aimed to 
Americanize and decapitalize the North Pacific pollock fishery. Not 
only is this substitute, in my view, fundamentally more fair than the 
original S. 1221, it is considerably better in that it allows for new 
methods of managing the largest fishery in the United States, methods 
that promise to end the race for fish and to ensure that the 
decapitalization is permanent.
  Americanization, decapitalization, and rationalization. These were 
the three things most participants in the pollock fishery said that 
they wanted from legislation when I convened an industry meeting in 
Seattle during the August recess. To these goals, I added my own: no 
summary elimination of foreign-controlled vessels without compensation, 
and the protection of independent pollock harvesters and processors.
  Due largely to the perseverance of Senator Stevens, the consensus 
that eluded the pollock industry in August was reached a month later. 
The basic elements of the September accord called for increasing the 
U.S. ownership and control requirements for all fishing vessels; 
arranging for the buy out by the onshore sector of a significant 
portion of the pollock catch and of nine Norwegian-controlled vessels; 
limiting the amount of fish that any one company can harvest and 
process; and laying the groundwork for a new management scheme to 
eliminate the race for fish by limiting participants in the pollock 
fishery and permitting these participants to decide in advance how to 
divide the resource.
  Translating the agreement-in-concept into legislation in the few 
weeks that remained in this Congress was a tremendous challenge. A 
myriad of questions arose, and we attempted to answer them as best we 
could with input from the participants in the pollock and other 
fisheries, state officials, North Pacific Fishery Management Council 
members, the National Marine Fisheries Service, the U.S. Coast Guard, 
the Maritime Administration, Community Development Quota 
representatives, and others.
  As we progressed through various drafts of the legislation, we tried 
to anticipate and address issues like how to require and enforce 
greater U.S. ownership and control of fishing vessels without 
disrupting existing and future financing arrangements; the effects of 
the transfer of fish from the offshore sector on the product mix; 
ensuring that catcher vessels have sufficient input into the formation 
and conduct of fishery cooperatives; preventing the vessels being 
removed from the U.S. Exclusive Economic Zone from contributing to 
overcapacity in other fisheries; and many, many others.
  One of the most difficult issues is how to protect participants in 
other fisheries from possible adverse effects of ending the race for 
pollock. Crabbers and other groundfish fishers are concerned that 
pollock fishers who participate in cooperatives will spend more time 
and effort in other, already overcapitalized, fisheries. After 
considering various legislative proposals to limit effort in other 
fisheries, I believe we made the right choice to leave this task to the 
regional councils. Because the measures to end the race for fish in the 
onshore and mothership sectors will not go into effect until 2000, we 
delegated to the North Pacific and the Pacific Fishery Management 
Councils the responsibility of ensuring that the new cooperative 
management regime provided for in this legislation does not 
decapitalize and rationalize the pollock fishery at the cost of further 
overcapitalizing other fisheries. For the offshore sector, which we 
anticipate will form cooperatives and stop racing for fish in 1999, 
before the regional management councils have an opportunity to impose 
restrictions on these vessels, we prescribed limits on participation in 
other fisheries.
  One of the questions for which we could not get a definitive answer 
is whether we have appropriated enough

[[Page S12802]]

money to cover the cost of the loan that will be used for the vessel 
buy out. A critical element of this bill is the purchase of nine 
pollock catcher processor vessels and their pollock fishing history. In 
exchange for being allocated significantly more fish, and permanently 
eliminating these nine vessels from all U.S. fisheries, the onshore 
pollock sector has agreed to pay $75 million to the vessel owners. This 
$75 million will be advanced as a loan by the federal government, and 
repaid to the federal government by the onshore sector over a long 
period of time. This $75 million payment from the onshore sector to the 
offshore sector is supplemented in this bill by a $20 million federal 
appropriation, so that the total payment to the offshore catcher 
processors is $95 million. Of this amount, $90 million is to be paid to 
the owners of the nine catcher processors being excluded. The 
additional $5 million is to be paid to the catcher processors whose 
allocation is reduced even though their vessels are not removed.
  Because the nine vessels are to be excluded and the allocation to 
catcher processors to be reduced on January 1, 1999, we have provided 
that the buy out payments to the owners and the catcher processors be 
made before the end of 1998. To do this, we have appropriated the $20 
million federal share of the buy out, and an additional $750,000 for 
the cost of the direct loan of $75 million. The $750,000 is one percent 
of the loan amount, and is the amount that both NMFS and the Office of 
Management and Budget believe is enough to cover the cost of the $75 
million loan. Because this type loan is unprecedented, however, OMB has 
been unable to say with absolute certainty that $750,000 is the correct 
amount.
  If OMB determines that $750,000 is insufficient to cover the cost of 
the $75 million loan, we expect OMB and NMFS to inform us of this 
immediately, and to immediately secure sufficient funds to cover the 
cost of a direct loan of $75 million so that $90 million can be paid to 
the owners of the nine excluded vessels before the end of this year. 
These funds can be secured by reprogramming part of the $6 million 
provided to NMFS to carry out the provisions of this Act.
  Another question that has arisen recently involves the interpertation 
of the section that allows offshore catcher vessels to catch 8.5 
percent of the pollock allocation reserved for these catcher boats and 
specified catcher processors. We included this section to ensure that 
the catcher boats delivering to catcher processors were not squeezed 
out of the sector. We anticipated that the fish caught by these catcher 
vessels would be delivered for processing only to the twenty catcher 
processors named in the bill as eligible to participate in the offshore 
pollock fishery and eligible to participate in a cooperative, and we 
did not intend for these catcher vessels to be able to increase the 
pollock processing capacity by delivering their catch to catcher 
processors other than the 20 listed vessels.
  But just as we did not have a definitive answer to the question of 
the cost of the loan guarantee, we did not have answers to many of the 
questions that arose from this proposal that so dramatically changes 
the operation of the largest fishery in the United States: we will rely 
heavily on the expertise of the North Pacific Fishery Management 
Council and of NMFS, to flesh out many of the details of this truly 
revolutionary legislation. Even without all of the answers, however, I 
believe that we made the right decision to seize a unique opportunity 
to Americanize, decapitalize, and rationalize this fishery, and, at 
long last, bring peace to an industry whose internecine battles over 
the years have led to the inefficient operation of the pollock fishery 
and caused a rift between Washington and Alaska.


         The Montana Fish and Wildlife Conservation Act of 1998

  Mr. BAUCUS. Mr. President, I rise to speak in support of Title X of 
the FY 1999 Omnibus Appropriations bill. I drafted this provision as a 
substitute amendment to S. 1913, the Montana Fish and Wildlife 
Conservation Act of 1998, a bill that I sponsored and Senator Burns 
from Montana co-sponsored. I am pleased that this provision has been 
included in the Omnibus Appropriations bill.
  As amended, the Montana Fish and Wildlife Conservation Act of 1998 
(now Title X) creates an exciting opportunity to exchange lands at 
Canyon Ferry Reservoir for other lands in Montana to conserve fish and 
wildlife, enhance public hunting, fishing, and recreational 
opportunities, and improve public access to public lands.
  Mr. President, I would like to take a moment to thank my good friends 
and colleagues from Montana--Senator Burns and Congressman Hill. 
Together, we have worked long hours on this project. We certainly would 
not be where we are today if not for this team effort. I would also 
like to take a moment to thank their staffs as well--especially Leo 
Giacometto, Ric Molen and Ryan Thomas from Senator Burns' office and 
Mark Baker and Kiel Weaver from Congressman Hill's office. These staff 
members have logged long hours on this project and this accomplishment 
belongs as much to them as to anyone.


                          Legislative History

  So that there will be no question as to the origins of this 
provision, let me provide a brief history of this legislation. On April 
2, 1998, I introduced S. 1913, the Montana Fish and Wildlife 
Conservation Act of 1998. Senator Burns joined me as a co-sponsor of 
this legislation. This bill, like Title X of the Omnibus Appropriations 
bill, proposed to exchange 265 cabin sites at Canyon Ferry Reservoir 
for public lands elsewhere in the state. Like the adopted provision, S. 
1913 proposed to accomplish this exchange through the use of a 
permanent trust that would hold the proceeds of the cabin site sale 
pending acquisition of other lands.
  While S. 1913 actually created two trust funds (one for local land 
acquisitions and one for land acquisitions elsewhere in Montana), Title 
X to the Omnibus bill simplifies this arrangement by creating one land 
acquisition trust, but then specifying that no more than 50% of the 
proceeds from this trust can be used outside of the local area in any 
given year. This trust arrangement is set forth in Section 1007 of 
Title X.
  On May 3, 1998, I held an Environment and Public Works Committee 
field hearing on S. 1913 in Helena, Montana. That hearing was attended 
by over 200 cabin owners and sportsmen--all of whom overwhelmingly 
supported the Montana Fish and Wildlife Conservation Act of 1998.
  On May 22, 1998, Congressman Hill from Montana introduced a related 
piece of legislation in the House. Like S. 1913, H.R. 3963 established 
a mechanism for the sale of the 265 cabin sites. Unlike S. 1913, H.R. 
3963 made no provision for the use of the proceeds from this sale.
  Between May and August of 1998, these two bills received substantial 
attention in Montana. In early August, the Montana delegation sat down 
to craft a consensus bill. By mid-August, we had reached agreement in 
principle on a substitute amendment for S. 1913.
  Under our agreement, we would use the land trust idea encompassed in 
S. 1913, but would add two provisions to provide additional benefits to 
Broadwater County, Montana. These provisions (sections 1005 and 1008 of 
Title X) are designed to improve recreational opportunities in 
Broadwater County, without diverting any of the cabin site revenues 
away from the land acquisition trust.
  After drafting legislative language to encompass this agreement in 
principle, I then sat down with Administration officials to gain their 
support for this legislation. In response to concerns voiced by 
Department of Interior officials and others in the Administration, I 
made a number of substantive changes to this bill. One of these changes 
was to add section 1009 of Title X to clarify the Bureau of 
Reclamation's authority to improve public recreation and to conserve 
wildlife at Canyon Ferry Reservoir.
  On October 10, 1998 after I revised the legislation to respond to the 
concerns of the Administration, Jack Lew, Director of the White House 
Office of Management and Budget, wrote to express the Administration's 
support for this new bill. Mr. Lew wrote: ``as amended, S. 1913 creates 
a unique opportunity to exchange lands at Canyon Ferry Reservoir for 
other lands in the state to conserve fish and wildlife, enhance public 
hunting, fishing, and recreational opportunities, and improve public 
access to public lands.'' Mr. President, I ask that the entire text of

[[Page S12803]]

the OMB letter of support be printed in the Congressional Record 
following this statement.
  The PRESIDING OFFICER. Without objection, it is so ordered,
  (See Exhibit 1.)
  Mr. BAUCUS. Soon after reaching an agreement with the Administration 
on final bill language for a substitute to S. 1913, the House and 
Senate Appropriations Committees agreed to include this Act as Title X 
of the FY1999 Omnibus Appropriations bill.


                         Provisions of Title X

  Title X grew out of a decision made by the Bureau of Reclamation in 
the late 1950s, soon after Canyon Ferry dam was completed near Helena, 
Montana. It was at that time that the Bureau decided to lease 265 cabin 
sites on the north end of Canyon Ferry Reservoir to local families. As 
conditions of their leases, the Bureau required the families to build 
and maintain cabins on these sites. In the intervening forty years, 
many of these cabins have been expanded into full fledged houses, with 
yards, driveways and carports.
  Mr. President, there are many things that the federal government does 
well. I'm not sure that being a landlord is one of them. This intensive 
concentration of cabin sites has led to on-going conflicts between the 
Bureau and the cabin owners. Most recently, these conflicts escalated 
when the Bureau moved to raise rental rates for these cabin sites by as 
much as 300 percent. From the cabin owner's perspectives, this is an 
inequitable situation. They have invested time and money in these sites 
and yet live with the constant worry that their leases will be 
terminated and their cabin sites taken away.

  To resolve these conflicts, Title X directs the Secretary of Interior 
to sell the 265 cabin sites at Canyon Ferry Reservoir in Montana in one 
transaction to the highest bidder. The minimum bid for this transaction 
is set at the fair market value of all 265 sites, appraised 
individually using standard federal appraisal procedures.
  I would like to note that, while the appraisal process for rental 
rates has been a point of contention between the cabin owners and the 
Bureau of Reclamation in the past, recently these two parties reached 
an accord for completing a joint appraisal for the purposes of setting 
rental rates. I applaud this cooperation and expect that the Bureau 
will continue this agreement and this cooperation in appraising these 
sites for the purposes of this bill.
  Title X contains protections to ensure that each cabin owner has an 
option to purchase their site from the highest bidder and to protect 
the existing lease rights of each cabin owner. At the same time, Title 
X contains ample protections to ensure that the public gets a fair deal 
too.
  Mr. President, the Bureau of Reclamation, the U.S. Forest Service, 
and other federal agencies lease cabin sites across the West. I would 
not want to suggest that the solution contained in Title X is 
appropriate in each case where cabin owners have conflicts with the 
federal government. To the contrary, I believe that the Canyon Ferry 
situation is unique in a number of respects.
  First, these are not isolated cabin sites around which the public and 
wildlife can move freely. At Canyon Ferry Reservoir, there are 265 
cabin sites arranged in tight clusters. This is one of the largest 
concentrations of residences on public lands in the West. This tight 
pattern of development dramatically lowers the value of these sites to 
the general public and largely precludes the use of the area by 
wildlife.
  Second, in this case, the lessees were required to make improvements 
to their property and, in many cases, have gone so far as to build 
houses on these sites. Many of these houses have now become primary 
residences for local families. Though the federal government leases 
cabin sites across the West, few are occupied by families living year-
round in their homes.
  Even under circumstances such as these, however, I do not believe 
that the federal government should support the sale of cabin sites. Mr. 
President, as a matter of principle, I am opposed to the sale of public 
lands. I believe that the sale of public lands threatens to establish a 
dangerous precedent that, over time, could erode our public lands 
heritage.
  Let me be clear though--I am not opposed to trading lands with low 
value to the general public for lands that are important for fish and 
wildlife conservation or that are more accessible to the public.
  Across the West, the federal government has recognized that land 
exchanges can be useful tools to allow the government to trade out of 
lands that have low values for the general public in order to acquire 
lands that are more accessible to the public or that are more important 
for fish and wildlife. Just this year, Congress approved S.1719 to 
complete the Gallatin Land Exchange near Bozeman. I was the primary 
sponsor of that bill in the Senate and can say first hand that 
legislation produced enormous benefits for the public.
  I modeled the Montana Fish and Wildlife Conservation Act after this 
and other land exchanges to ensure that our public land heritage is not 
eroded and to try to improve our public lands holdings.
  Because public lands are important to Montanans and, indeed, to all 
Americans. We take our children fishing on these lands. They're where 
we hunt, hike, and recreate. We take our families out for picnics at 
the local Forest Service campground and we ride our horses in the high 
alpine meadows. These lands serve as the backdrop for our homes and our 
communities. Mr. President, you might say that I'm a big fan of public 
lands, and that's why this bill is so important to me.
  Title X directs the Secretary of Interior to sell 265 cabin sites at 
Canyon Ferry Reservoir in Montana. The proceeds from this sale are then 
placed into a new trust called ``The Montana Fish and Wildlife 
Conservation Trust.''
  Title X very explicitly specifies the appropriate uses of the 
proceeds from this trust. The Act states that the trust is to ``provide 
a permanent source of funding to acquire publicly accessible land and 
interests in land, including easements and conservation easements, in 
the State from willing sellers at fair market value to: a) restore and 
conserve fisheries habitat, including riparian habitat; b) restore and 
conserve wildlife habitat; c) enhance public hunting, fishing, and 
recreational opportunities; and d) improve public access to public 
lands.''
  Mr. President, these provisions are very important. First, this trust 
is dedicated to acquisition of land and interests in land in Montana. 
The land-for-land concept is a critical component of this Act. To 
reiterate, this bill has been modeled after other land exchanges. By 
using the intermediary step of a trust, however, we have created a new 
breed of land exchange known as a ``bifurcated'' or ``land-trust'' 
exchange. It is my belief that this tool, by functioning as a permanent 
source of funding, and by allowing for more targeted acquisitions over 
time, may have benefits not found in the traditional land exchange 
process.
  In commenting on an early debate over this provision, the Helena 
Independent Record noted on July 9, 1998:

       The problem here is the ideological question of public 
     land, of which they aren't making any more. While some feel 
     that almost any public land would be more productive in 
     private hands, backers of Baucus' bill believe that a public 
     land value should be sold off only in return for an equal 
     land value--not marinas or roads or other things that can, 
     after all, be funded in other ways.

      Just as it is perfectly all right for the Forest Service to 
     trade off checkerboard landholdings, as long as the public 
     receives equal value, so selling the Canyon Ferry lease 
     sites is acceptable--so long as equal value land values 
     are received in return. . . . That's why it is the Senate 
     version that should be enacted into law.

  Mr. President, I agree with this statement and endorse very strongly 
the land-for-land concept embodied in this bill.
  Second, it is important to note that the bill language makes clear 
that this land trust is dedicated to the conservation and public 
enjoyment of Montana's fish and wildlife resources. The title of S.1913 
and the purposes of Title X emphasize that this trust is established to 
promote fish and wildlife conservation. Similarly, the title of the 
trust itself and the requirement in section 1007(c)(3)(B) that the 
members of the citizen advisory board have a dedicated commitment to 
fish and wildlife conservation should leave no question of the goals 
that we are trying to achieve with this legislation.

[[Page S12804]]

  While the trust may be used to acquire land and interests in land to 
improve recreation and access to public lands, it is the intent of this 
bill that the recreation and access provisions should be complimentary 
to, not contradictory with, the purposes of fish and wildlife 
conservation. Toward that end, it is my expectation that the members of 
the citizen advisory board will recommend, and members of the federal-
state agency board will request, expenditures from this trust that meet 
both the letter and spirit of this important bill. It is also the 
intent of this legislation that, under section 1007(e), lands acquired 
under this substitute amendment will be managed in a manner that 
promotes fish and wildlife conservation.
  Because the land-for-land and conservation principles are so 
critical, this bill establishes a management framework for this trust 
designed to ensure that the trust is as effective as possible. The 
permanent trust is to be managed by a trust manager who is responsible 
for investing the corpus of the trust and for ensuring that the 
proceeds from the trust are dispersed only in accordance with the terms 
of the bill.
  Requests for dispersal must be submitted by a five-member board 
consisting of representatives of the U.S. Forest Service, Bureau of 
Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, 
and the Montana Department of Fish, Wildlife, and Parks. The federal-
state agency board is directed to ensure that any requests for 
dispersal will meet the purposes of the trust. The bill intends that 
the federal-state agency board will base its decisions regarding 
expenditures from this trust on the trust plan compiled by a four-
member citizen advisory board.
  The citizen advisory board contains a representative from a Montana 
organization representing agricultural landowners, a Montana 
organization representing hunters, a Montana organization representing 
fishermen, and a Montana nonprofit land trust or environmental 
organization. Each of these members is to have a demonstrated 
commitment to improving public access to public lands and to fish and 
wildlife conservation.
  Mr. President, this citizen advisory board is integral to the proper 
functioning of this legislation. It is my intent that this group of 
citizens should play a very active role in identifying critical 
properties for acquisition and in setting the priorities of this trust.
  Because this trust is intended to supplement, not supplant, regular 
Land and Water Conservation Fund expenditures, I do not expect that the 
federal agencies' priority list for LWCF expenditures will govern the 
expenditures from this trust.
  Rather, it is the intent of this legislation that the citizen 
advisory board will take an independent look at land acquisition needs 
in Montana as they craft and update the trust plan. The legislation 
intends that the federal-state agency board will rely heavily on 
direction set by the citizen group and the trust plan and contemplates 
that the two boards will work hand-in-hand together. The legislation 
also requires the trust manager to consult with the citizen advisory 
board to ensure that expenditures from the trust are strictly limited 
to those authorized by this legislation.
  Mr. President, I would also like to take a moment to comment on a 
number of additional provisions in this substitute amendment. First, 
section 1004(b)(3)(C) provides that restrictive covenants will be 
placed on deeds to the cabin sites at the time of transfer to ensure 
the maintenance of both existing and adequate public access to and 
along the shoreline of Canyon Ferry Reservoir and to restrict future 
uses of these properties to the ``type and intensity of uses in 
existence on the date of enactment of this Act, as limited by the 
prohibitions contained in the annual operating plan of the Bureau of 
Reclamation for the Reservoir in effect on October 1, 1998.''
  These provisions were very important to the Administration to ensure 
that the privatization of these sites does not diminish the values of 
adjacent public lands. It is important that lands acquired in an 
exchange have public values at least equal to those traded away. It is 
equally important to ensure that the lands that are traded out of the 
federal estate do not compromise the values of adjacent public or 
private lands. I would also like to note the distinction between 
protecting ``existing'' and ensuring ``adequate'' access. These 
provisions were added to ensure that the public continues to have 
access to and along the shore of Canyon Ferry Reservoir and, where 
access is not currently adequate, to ensure that such access is 
improved.
  I want to note, however, that the historical use restriction is not 
intended to require cabin owners to remove or modify structures that 
were in existence on the date of this Act. As noted in the letter from 
OMB that I mentioned earlier, this provision ensures that subsequent 
owners of these properties will ``preserve the existing character of 
this area.'' Quite simply, it is the intent of this bill that this area 
should not be turned into another Lake Tahoe Resort. However, it is 
also the intent of this bill that the historical use provision should 
not unduly burden the cabin owners by requiring new limitations on the 
type and intensity of uses that are allowed on these sites.
  Second, section 1004(d)(2)(A) specifies that, if the Canyon Ferry 
Recreation Association (``CFRA'') submits the highest bid for these 
cabin sites, the Secretary will sell a cabin site to a lessee, if he 
receives a purchase request from that lessee. Section 1004(d)(2)(D) 
provides that CFRA and the lessees must purchase at least 75 percent of 
the properties by August 1 of the year following the first sale of a 
cabin site. Section 1004(d)(2)(E) provides that the Secretary shall 
continue to lease the cabin sites to those lessees who have not 
purchased their sites by that time.
  While this is a complex arrangement, the intent should be clear. It 
is the intent of this bill that every cabin owner have an opportunity 
to purchase their lot so long as they are leasing from the Bureau of 
Reclamation. This bill requires that, if CFRA submits the highest bid 
for these sites, CFRA will purchase at least 75% of the lots by August 
1 of the year following the first sale of a cabin site. CFRA's 
obligation to purchase 75% of the lots is, of course, offset by sites 
that have been purchased by individual cabin owners by that time.
  It is further the intent of this bill that the Bureau should continue 
to lease to remaining cabin owners who have not purchased by that time, 
and that the Bureau should continue to provide each lessee with the 
option of purchasing their site so long as they continue to lease their 
site from the Bureau. It is important to note that, once CFRA submits 
the highest bid, section 1004(d)(2)(g) requires that all rental revenue 
from the cabin sites will be distributed to the Fish and Wildlife 
Conservation Trust and to reduce the Pick-Sloan debt as set forth in 
section 1006 of the bill.


                               conclusion

  Mr. President, this bill is the result of exhaustive negotiations 
between local citizens, wildlife groups, county commissioners, the 
cabin owners, the Montana delegation and, most recently, the 
Administration. I am pleased that we have been able to reach a broad 
consensus on this matter and I support its inclusion as Title X of the 
Omnibus Appropriations bill.
  Again, in closing, I would like to thank Senator Burns and 
Congressman Hill for their work on this important effort--I look 
forward to working together on many more such collaborative efforts.

                               Exhibit 1

         Executive Office of the President, Office of Management 
           and Budget,
                                 Washington, DC, October 10, 1998.
     Hon. Max Baucus,
     U.S. Senate, Washington, DC.
       Dear Senator Baucus: I am writing to express the 
     Administration's support for your substitute amendment to S. 
     1913, the Montana Fish and Wildlife Conservation Act. As 
     amended, S. 1913 creates a unique opportunity to exchange 
     lands at Canyon Ferry Reservoir for other lands in the state 
     to conserve fish and wildlife, enhance public hunting, 
     fishing, and recreational opportunities, and improve public 
     access to public lands.
       We would like to commend you for your leadership in 
     vigorously pursuing legislation that promotes conservation 
     and for the cooperation shown by you and your staff in 
     working with us to address our concerns.
       As you know, S. 1913 directs the Secretary of the Interior 
     to sell the affected Federal properties around Canyon Ferry 
     Reservoir as a single block. Although, as a general rule, we 
     believe the Secretary of the Interior

[[Page S12805]]

     should have administrative discretion as to how such a 
     transaction should occur, we believe that the procedures 
     contained in the Baucus substitute amendment are acceptable 
     given the unique situation of this property.
       The substitute also includes a number of provisions that we 
     feel are necessary for the Administration's support of this 
     bill. First, it is our understanding that you have made the 
     changes that we have requested to the bill's land appraisal 
     procedures to ensure a fair and accurate appraisal of market 
     value of the properties to be sold and to avoid creating 
     opportunities for needless litigation. Second, the bill 
     ensures that subsequent owners of these properties will 
     maintain public access to Canyon Ferry Reservoir and preserve 
     the existing character of this area. And, third, this 
     substitute amendment preserves the ability of the Secretary 
     to manage Canyon Ferry Reservoir for its Congressionally 
     authorized purposes.
       We believe that this legislation, with the changes noted 
     above, will enhance public recreation and fish and wildlife 
     opportunities for this area while protecting Federal 
     interests in the operation and management of the Canyon Ferry 
     Project.
           Sincerely,
                                                     Jacob J. Lew,
                                                         Director.

  Mr. FEINGOLD. Mr. President, I want to state my opposition to the 
omnibus appropriations bill, and outline some of my concerns with both 
the content of that measure, and with the process in which it was 
crafted.
  First and foremost, Mr. President, this omnibus appropriations bill 
shreds the tough spending limits established by last year's bipartisan 
budget agreement. It does so through the expedient of declaring nearly 
21 billion dollars in spending as a budget emergency, thus exempting 
that spending from the spending caps and budget discipline that was so 
central to last year's budget agreement.
  Mr. President, as I have noted on the floor previously, the emergency 
exception to our budget rules was intended to allow Congress to act 
quickly to provide funding to assist victims of natural disasters or to 
help ensure an adequate and timely response to an international crisis. 
Sadly, that exception has now become the rule, and we now see emergency 
declarations attached to appropriations provisions not because those 
provisions were unexpected or urgent, but because doing so permitted 
Congress to duck its budget responsibilities.
  That is a gross abuse of the emergency provisions incorporated in our 
budget rules, and it must stop.
  Mr. President, of particular concern is the use of the emergency 
exception to add funds to an already bloated defense budget.
  Mr. President, the only emergency in our defense readiness is the 
sorry state of posturing by Congress for more defense spending. Some 
Members insist Congress must throw more money into the Department of 
Defense, even when our military leaders say they don't need it.
  But, Mr. President, the Pentagon does not need more money. The money 
going to the Pentagon needs to be spent more wisely. Unfortunately, too 
often Congress does everything in its power to make sure that does not 
happen.
  Congress continues to spend billions of dollars on pork-barrel 
projects that the Pentagon does not need and does not want. Congress 
bars the closing of unnecessary bases, and refuses to address 
accounting fraud so destructive that Senator Grassley recently stated 
that, ``If we put adequate controls on the money we have, there should 
be no need for more defense spending.''
  Last week, Mr. President, the Washington Post reported there were at 
least 30 items that appeared for the first time in the fine print of 
the $250 billion defense spending bill. These included: $250,000 to 
study the potential uses of a caffeinated gum, reportedly slipped into 
the defense spending bill by a Member of the other body on behalf of 
the firm in his Illinois district that makes this gum; $2.4 million for 
a device called the American Underpressure System, reportedly another 
late addition to the defense spending bill pushed by the San Diego 
businessman who holds the patent on the device; and, $5 million to fund 
the purchase of electronic locks manufactured by a Kentucky firm, 
reportedly added by a member of that State's delegation to the defense 
spending bill during conference deliberations. The Washington Post 
story reported the Kentucky lockmaker was able to obtain still another 
earmark in the Energy Department spending bill for $2 million.
  Mr. President, this practice is an outrage, but one many in both 
chambers choose to ignore, or, worse, perpetuate. If we cut the pork 
and allowed the Pentagon to close inefficient bases, we would not even 
need to discuss so-called emergency spending for defense.
  Among the most abusive uses of the emergency exception in the defense 
budget is the proposed $1.9 billion in funding for U.S. troops in 
Bosnia.
  Mr. President, I have always had serious questions about U.S. 
involvement in this mission. I was the only Democrat to vote against 
the deployment of U.S. troops back in 1995, in large part because I did 
not believe that the United States would be able to complete the 
mission in the time projected and for the price tag that was originally 
estimated. Unfortunately, I have been proven right, and I take no 
pleasure in it.
  U.S. forces have now been in Bosnia for almost three years, much 
longer than the original one-year mandate, and I do not think anyone 
has a good idea how many more years we will be there. More 
significantly, the cost of our involvement in Bosnia has increased 
dramatically--easily more than quadrupling the original $2 billion 
estimate to more than $8 billion, not including the $1.9 billion now 
proposed to be added by the omnibus appropriations measure.
  But beyond the strict policy concerns of our mission in Bosnia, Mr. 
President, is the troubling budget maneuvering that has been done to 
add still more funding to this questionable mission.
  Mr. President, the funding for the Bosnia mission will not be forced 
to comply with our budget caps. The additional $1.9 billion provided in 
this bill is designated as emergency funding.
  Mr. President, our Bosnia mission can hardly be characterized as an 
unexpected event, something deserving of emergency funding. Far from 
it. Our mission in Bosnia is a substantial, long-term commitment. It is 
something the United States has, for better or worse, decided to do for 
the long-term.
  Webster's New Collegiate Dictionary defines the word ``emergency'' as 
follows: ``an unforeseen combination of circumstances or the resulting 
state that calls for immediate action.''
  This definition clearly does not apply to the Bosnia mission. The 
Bosnia mission is an emergency only in the strange language of 
appropriations bills. The Bosnia ``emergency'' is a legislative 
fiction.
  U.S. troops have been on the ground in Bosnia for nearly three years. 
In December of 1997 the President announced that he would forego 
imposing a deadline altogether, and opt instead for a policy of 
benchmarks whose definitions remain open to interpretation.
  Given that policy, Mr. President, how can Congress and the President 
possibly argue to the American people that the additional costs for the 
Bosnia mission constitute an emergency? On the contrary, it has been 
clear for quite a while now that the cost of this mission would again 
rise substantially. Some would say it has been clear from the start.
  Ironically, Congressional appropriators and our military leaders have 
planned for many months on obtaining these so-called emergency funds.
  Mr. President, the mission in Bosnia does not represent an emergency 
that legitimately calls for us to depart from our established, vital 
budget rules.
  Mr. President, as I noted, the Bosnia funding is only one example. 
What compounds this dangerous trend away from budget discipline is the 
reported evolution of much of the emergency spending. In particular, it 
has been reported that the negotiations surrounding the omnibus 
appropriations bill at one point centered on the insistence of some 
that for every emergency dollar added for one group of programs, 
another had to be added for a different set of programs. Essentially, 
the budget negotiation became a bidding contest in which deficit-
financed spending was the currency.

  This brings me to my second serious objection to the measure before 
us, namely the process by which it was crafted.
  Mr. President, continuing resolutions and omnibus appropriations are 
fast becoming the standard process in Congress. Deliberate, careful, 
and open

[[Page S12806]]

consideration of agency budgets, with the full participation of 
everyone's elected representatives in a public forum has been shunted 
aside, and instead we have a process of back room deals by a powerful 
few.
  Mr. President, that is not democracy in action, and it rewards those 
well-funded, well-connected special interests that already distort the 
policy agenda of the Federal government.
  We should not be surprised, then, when dozens of special interest 
earmarks and policy riders find their way into the omnibus measure with 
little or no public debate.
  The normal appropriations process is already tainted to a great 
extent with this kind of influence. The closed door dealings in which 
this legislation was developed only make that problem worse.
  A telling example of the policy that can result from this flawed 
process is the language delaying implementation of the most modest of 
reforms in our nation's dairy policy.
  Language included in this omnibus measure extends USDA's rulemaking 
period on Federal Milk Marketing Order reform for six months. This 
extension will delay implementation of the new federal milk pricing 
system to October of 1999, instead of the original date of April, 1999 
set in the Farm Bill. Mr. President, officials at USDA have assured me 
that they did not request this extension nor do they need it.
  Mr. President, this dairy provision was included solely to intimidate 
and bully USDA and Secretary Glickman into an anti-Wisconsin dairy 
pricing reform. Instead of allowing USDA to do its job, some Members of 
Congress want to do it for them, and do it to benefit their own 
producers at the expense of dairy farmers in the Upper Midwest.
  It is ridiculous that today, in times of advanced technologies, 
Wisconsin producers receive a Class I differential of $1.20 per 
hundredweight, while producers in Kansas City, Missouri receive $1.92, 
and our friends in Miami get $4.18. Dairy farmers in Miami make nearly 
$3.00 more per hundredweight than farmers in the Upper Midwest for the 
same product. The current system just does not make sense in today's 
world.
  The extension of USDA's rulemaking had another intent as well. 
Extending the rulemaking period automatically extends the life of the 
Northeast Interstate Dairy Compact. The 1996 Farm Bill requires a 
sunset of the Compact when the new federal pricing system is 
implemented. At the rate Congress is going, tacking this issue onto 
appropriations bills, there is no telling when implementation will now 
occur.
  The effects of the Compact on consumers within the region and 
producers outside of it are indisputable. Dairy compacts are harmful, 
unnecessary and a burden to this country's taxpayers.
  The worst part of this entire sixty-five-year dairy fiasco is its 
effect on the producers in the Upper Midwest. The six-month extension 
puts an additional 900 Wisconsin producers at risk. Wisconsin loses 
approximately three dairy farmers a day. Producers cannot stand six 
more days of the current program, let alone six more months.
  Mr. President, not only is legislating dairy policy on this bill 
inappropriate, it is bad precedent, it circumvents the appropriate 
committees, the Agriculture and Judiciary Committees, and circumvents 
USDA's authority. We ought to give USDA the opportunity to do the right 
thing for today's national dairy industry and put an end to the unfair 
Eau Claire system now, not six months from now.
  Mr. President, once again I urge my colleagues to take a second look 
at this antiquated and harmful policy. Stand up for equity, fairness, 
and for what is best for America's dairy industry, our consumers and 
our taxpayers.
  Mr. President, the omnibus measure is also the vehicle for a number 
of anti-environment riders. Here again, by burying these provisions in 
this mammoth appropriations bill, those promoting these anti-
environmental provisions are able to avoid full and open debate of 
their proposals. They succeed in avoiding a separate vote on matters 
that are quite controversial.
  That is the nature of this kind of bill and this kind of process, Mr. 
President. An unamendable, ``must pass'' bill inevitably will be a 
magnet for proposals that cannot stand up to the scrutiny of open 
debate.
  Mr. President, some may blame the nature of the annual budget process 
for putting Congress in the position of having to pass an omnibus 
appropriations bill. Some might suggest the inability to pass all the 
appropriations bills in a timely manner is inherent in the annual 
budget process, and in this regard I am certainly willing to give the 
biennial budget process a try. I was pleased to cosponsor the measure 
offered by the Senator from New Mexico (Mr. Domenici) to move to a 
biennial process.
  But the annual budget process is not the central problem. The central 
problem is the corrupting influences that permeate the entire 
policymaking environment, from our system of campaign finance, to the 
problems of revolving door hiring practices, to the inadequate lobbying 
and gift restrictions on Members.
  And the incentives in such a corrupting environment all encourage 
just this kind of process--back room negotiations, among only a few 
powerful people, with little or no outside input or public scrutiny.
  Mr. President, as this bill so graphically demonstrates, until the 
Senate and the other body do something to address that underlying 
problem, Congress cannot be trusted even to abide by the spending 
limits to which it agreed only a year ago.
  Mr. KENNEDY. Mr. President, I support this legislation because it 
will help millions of families across the country. One of the most 
important provisions offers urgently needed aid to communities to 
improve their public schools. Democrats worked effectively to provide 
funds for more teachers and smaller classes, and these efforts were 
successful. The result is that assistance is on the way for this 
important aspect of school reform.
  The bill provides $1.2 billion on the current fiscal year for this 
vital initiative to reduce class sizes in the nation's public schools. 
This is the first installment in an ongoing effort to help schools 
throughout the nation hire 100,000 more teachers, so that all students 
will get the attention they need in school to succeed in life.
  The bill also contains a major literacy initiative that will provide 
$260 million to help children learn to read well by the end of the 
third grade. It's a strong response to President Clinton's America 
Reads Challenge, and it makes a significant additional victory for 
education reform.
  In addition, the legislation includes $871 million for summer jobs 
for disadvantaged youth. For many of these youth, summer jobs are their 
first opportunity to work and their first step in learning the work 
ethic.
  This legislation also fully funds the Youth Opportunity grants 
established by the Workforce Investment Act signed into law in August. 
This innovative new program will offer education and career 
opportunities for teenagers most at risk and living in the poorest 
communities.
  The bill also contains the level of funding recommended by President 
Clinton for Head Start and after-school programs. These programs are 
vital to children across the country, and these funds are urgently 
needed.
  Another key part of this bill provides much needed assistance for 
home health care for senior citizens and persons with disabilities 
under Medicare. In 1997 in Massachusetts, approximately 150 home health 
agencies cared for 125,000 Medicare beneficiaries. But the Balanced 
Budget Act of 1997 contained provisions that led to an unintended 15 
percent reduction in reimbursement for the state's home health 
providers. That reduction translated into a $110 million cut this year 
for providers across the state. Ten home health agencies in 
Massachusetts have closed their doors since January 1--in part due to 
the unanticipated consequences of the 1997 Act.
  Last February, Congressman Jim McGovern of Massachusetts and I 
introduced legislation to remedy this problem, and I am pleased that 
this bill achieves our goal. No senior citizens or persons with 
disabilities who depend on Medicare for home health services should 
have to worry that health care won't be available when they need it 
most.
  By delaying a forthcoming reduction in payments and by improving the 
formula for reimbursements, this bill enables home health agencies to 
provide

[[Page S12807]]

the medical care needed for patients to stay in their own homes and 
communities, and out of hospitals and nursing homes. All of us who are 
concerned about this issue welcome the progress we have made, and we 
will continue to do all we can to see that home health care is widely 
available to those who need it in our states.
  The legislation also makes important changes in the immigration laws. 
It temporarily increases the number of visas available to skilled 
foreign workers to meet the demands of colleges, and the high-tech 
industry. It also contains a substantial investment to improve job 
training and educational opportunities for U.S. workers and students.
  In addition, the bill ensures that the 49,000 Haitians who came to 
this country fleeing persecution will have the opportunity to apply for 
asylum to remain in the United States permanently. The bill also 
provides $171 million for naturalization activities. Without this 
support, the processing of naturalization applications would fall even 
farther behind.
  The legislation also takes a major step toward more effective 
enforcement of the civil rights laws. For the first time in many years, 
the Equal Employment Opportunity Commission will receive the level of 
funds needed to fulfill its important mission.
  In many other respects, this legislation also deserves support. I 
commend the bipartisan support it has received, and I urge the Senate 
to approve it.
  However, in passing this important bill, this Congress leaves behind 
a number of key initiatives of great importance to working families. I 
know that my Democratic colleagues join me in pledging to renew our 
efforts early next year on behalf of the unfinished business of the 
current Congress.
  First, we must act on the Patient's Bill of Rights, which will end 
the abuses of HMOs and guarantee the 161 million Americans who use HMOs 
that medical decisions affecting their families will be made by doctors 
and patients, not insurance company accountants.
  Democrats will also give high priority to campaign finance reform 
next year. The greatest gift that Congress can give the American people 
is clean elections. This reform is important for our democracy, and it 
deserves to be enacted at the beginning of 1999, so that it will 
clearly apply to elections in the year 2000.
  Our nations school buildings are crumbling, and many areas of the 
country do not have enough classrooms. The 105th Congress did not act 
on our proposal to give localities tax breaks for bond initiatives to 
pay for school construction. And we will pursue this proposal again 
next year.
  We must also act in 1999 to reduce youth smoking and save millions of 
children from a lifetime of addiction and early death. Three thousand 
more children a day start smoking, and a thousand of them will die 
prematurely from tobacco-induced disease.
  We need strong legislation to prevent tobacco companies from 
targeting young Americans. It is the only effective way to stop this 
tragedy.
  Another top priority should be action on the minimum wage. At this 
time of extraordinary national prosperity, millions of minimum wage 
earners are working full time but still living in poverty. We proposed 
a modest increase of $1.00 an hour over two years to give a much-needed 
raise to 12 million Americans. The fight for this proposal--so 
important to working families across America--must be and will be 
renewed next year.
  We had landmark, bi-partisan legislation to assist Americans with 
disabilities to obtain skills and go to work, rather than sit a home on 
public assistance. Disabled Americans want the dignity of work. But 
this bill, too, was not considered by this Congress.
  The tragic deaths of James Byrd, an African American killed because 
of his race, and Matthew Shepard, a gay University of Wyoming student 
killed because of his sexual orientation, brought the issue of hate 
crimes to the forefront this year. Their deaths and other senseless 
acts of hate resulting in death or serious injury should be a catalyst 
for passage of the Hate Crimes Prevention Act. This bill ranks high 
among the unfinished business of the 105th Congress, and we will pursue 
it again next year.
  All of us regret that this massive legislation is being considered 
under end-of-session restrictions that make sensible debate impossible. 
But overall, I believe the bill deserves to pass, and I look forward to 
renewing the debate next year about the nation's basic priorities.


                  medicare home health care provision

  Mr. GRASSLEY. Mr. President, I wish to comment on the Medicare home 
health care provisions in the omnibus bill the Senate passed today over 
my dissenting vote. Along with a bipartisan group of my colleagues, 
I've worked since early this year to persuade the Senate to revisit 
home care. Now that we've done so, I have mixed feelings about the 
product. First, let me tell you what is good about it.
  It is good that we listened to our constituents and took action on 
this issue. The Aging Committee held a hearing on this issue in March, 
and it was clear then that we had a major problem on our hands. From 
then to now, believe me, every step has been a struggle. As late as 
last Thursday, this issue was declared dead here in the Senate. But 
last minute calls from a number of us to the leadership led to the 
issue being taken up, and that's a good thing.
  It is good that the bill delays the 15-percent across-the-board cut 
in home health payments that was slated to occur in October 1999 if 
HCFA missed the deadline for the new Prospective Payment System (PPS). 
It's HCFA's fault, not that of home health providers, that PPS won't be 
ready in time, so the cut would have been unfair. The bill delays the 
cut until October 2000, and PPS should be ready by then, meaning that 
the across-the-board cut will never occur. We will all need to monitor 
the development of PPS closely, but this delay buys us some important 
time.
  The final good thing I can say about the bill is that it does provide 
modest relief to low-cost agencies, such as most Iowa providers. It 
moves them about one-third of the way up to the national median. That's 
all.
  So what's wrong with it? In short, its increase in payment to low-
cost agencies is far too small. The negotiators accepted the House view 
that all high-cost agencies should be held harmless. This tied up money 
which should have been used to provide more equity to low-cost 
agencies, the ``good guys'' who provide home care without unnecessarily 
burdening Medicare.
  Because the bill provides so little relief to low-cost agencies, 
those agencies are still at risk of closure. If an agency can't stay in 
business for at least another year, the delay of the 15-percent cut 
scheduled for October 1999 will not help it. For me, saving those 
agencies--in order to preserve access to home care for those they 
serve--was the foremost reason to act this year. We did not do what we 
needed to do.
  In a sense, the new law makes that bad situation even worse. If 
existing agencies must close their doors, especially in lightly 
populated rural areas, we could hope that new agencies would open to 
take on their patients. But the Senate receded to a House provision 
putting such new agencies at a marked payment disadvantage, making it 
unlikely that any will open. This should be a matter of grave concern 
to all of us.
  The bill that I drafted with Senators Breaux, Baucus, and 
Rockefeller, S. 2323, was a hard-fought compromise among differently 
situated States. As evidence that it was a good compromise, it garnered 
a majority of Finance Committee members as cosponsors, including those 
from States with relatively high- and low-cost agencies. It also 
greatly simplified the Interim Payment System, providing for more 
uniform payment for agencies, and eliminating the distinction between 
old and new agencies. If anything, the provision in the omnibus bill 
makes our earlier bill look even more attractive, because today's bill 
further complicates home health payment, and makes payment even less 
uniform.
  Finally, Mr. President, I cannot resist pointing out the flaws in the 
process by which this provision was developed. The process was 
profoundly undemocratic. After many months' discussion, a strong 
majority of the Finance Committee agreed on an approach to this issue. 
We were then told that, out of the whole Senate, only a single Senator 
from a State with a tremendous number of agencies, many

[[Page S12808]]

with very high costs, would object to this consensus approach. Unlike 
other Senators from similar States, who recognized the need for some 
high-cost agencies to accept some reductions as part of a compromise, 
this Senator had not cosponsored any of the reasonable reform bills or 
otherwise contributed to the discussions during the course of the year. 
While that Senator cited fiscal responsibility as the reason for his 
objection, it was no secret that his constituents included so many of 
the highest-cost home health agencies--the defense of which would seem 
to be the antithesis of fiscal responsibility.
  Precious days passed while no action was taken, and no explanation 
was offered. We Finance Committee members were essentially strung 
along, learning to our dismay each day that the bill had not been 
brought to the floor, where the objecting Senator would have to defend 
his position, if he dared. In the end, a deal was cut in a rushed, 
secret negotiation at the eleventh hour. Members who had labored for 
months to find a workable compromise were not invited to participate, 
while the alleged objector was. That Senator's State's high-cost 
agencies were thus given virtual veto power. It should be no wonder 
that we ended up with what we did.
  Here in Congress, a good process does not guarantee a good result, 
but a bad process almost certainly guarantees a bad result. It pains me 
that the seniors and disabled who rely on the Medicare home health 
benefit will have to bear the consequences of the Senate's bad process.
  While noting the errors of the Senate on this issue, I would be 
remiss not to note the responsibility of the home health industry and 
the Clinton Administration. The industry spent months pursuing 
unrealistic approaches and failing to unite behind reasonable reform. 
We'll never know how differently this debate might have turned out if 
they had been willing to make some hard choices earlier in the process, 
rather than do the impossible by attempting to please all their 
constituents. Similarly, we will never know how the issue would have 
played out if the Administration had participated as full partners. 
Throughout the year, they were willing only to provide technical 
assistance, never offering reform ideas of their own, no matter how 
much Members of Congress from both parties pleaded. I will never 
understand why they decided that home health care was Congress' problem 
and not theirs. I hope that the industry, the Administration, and 
Congress will all approach this issue differently next year.
  The prospect of dealing with this issue again in 1999 is not one that 
many of us relish. But I'm afraid that we will have to do it. In fact, 
what I really fear is that our best, most efficient home health 
providers will not be around when we return to this issue. We simply 
did not do enough for them this year. Let's not kid ourselves that we 
did.
  Mr. MOYNIHAN. Mr. President, the budget agreement reached on Thursday 
evening was celebrated by both parties in competing press conferences, 
and there may well be much to commend in the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act. The trouble is, how would 
anyone know?
  According to a wire service report on Friday, the bill was ``expected 
to be more than one foot thick.'' In fact, it is closer to two feet 
thick, and contains some 4,000 pages. Will any Senator or 
Representative know what's in that monster bill when it is passed 
shortly--as is now inevitable?
  Of course not. Yet in recent years we are given to feel that even to 
ask such a question is to reveal an embarrassing naivete.
  Last year, as Ranking Member of the Committee on Finance, I was Floor 
Manager during Senate consideration of an 820-page bill somewhat 
unconvincingly entitled the ``Taxpayer Relief Act of 1997.'' While it 
was pending before the Senate, the only copy of the bill present on the 
Senate floor was on the Democratic Manager's desk, having been obtained 
by our resourceful and learned Minority Chief Tax Counsel, Mr. Nick 
Giordano. A second copy provided to the majority Manager, Chairman 
Roth, had been lent to the Budget Committee so that it could be 
inspected for violations of assorted rules.
  During that debate, many Senators, having no other way to find out, 
came round to ask if I could ascertain whether this or that provision 
was in the bill. Sensing my opportunity, I would reply, ``I could, but 
what will you pay me?''
  This year's legislation is no different; we continue to discover 
items that mysteriously found their way into--or out of--the text long 
after the agreement was announced. And so as we reflect on the 
successes and failures of the 105th Congress now ending, I rise simply 
to sound a note of caution, if not alarm. Having served here for 22 
years now--I looked up at the beginning of this Congress to find myself 
9th in seniority among Senate Democrats, and 14th in the Senate 
overall--I am troubled that of late we are getting ominously careless 
with our procedures. This growing neglect of our rules is becoming 
increasingly hurtful to the institution of the United States Congress. 
Surely it is not how business ought to be conducted in the national 
legislature of the United States of America.
  In an article yesterday headlined ``Spending Deal Represents Failure, 
Not Success,'' the distinguished Vice President and columnist for the 
Associated Press, Walter Mears, recalls that

       A decade ago, President Reagan confronted Congress with the 
     ``43 pounds of paper'' it passed in 1987 to finance the 
     government in one catchall bill after failing to enact 
     separate appropriations. Reagan told the Democratic Congress 
     not to pass any more ``behemoths'' like that, and said he 
     wouldn't sign one again.
       ``The budget process has broken down,'' said Reagan, ``It 
     needs a drastic overhaul.''

  I do not assert that in some earlier, happier time, every Member of 
Congress read every word of every bill. That has never been possible. 
But only quite recently have the negotiations over, and contents of, 
our mammoth annual budget measures been kept secret from nearly 
everyone save the two Republican Leaders and the White House Chief of 
Staff. We are beginning to resemble a kind of bastard parliamentary 
system. Members loudly debate issues on the floor, but the real 
decisions are made in a closed room by three or four people.
  This deterioration in the process has taken place over about the last 
half decade, or so I would reason. Such things would never have been 
attempted, or tolerated, when I arrived here. That was a time when the 
rules and prerogatives of this institution were still revered. One 
shudders to think how the current state of affairs would be viewed by 
men of the House such as Thomas P. O'Neill or Dan Rostenkowski, or by 
giants of the Senate like Howard H. Baker or Russell B. Long.
  But the reality is that in recent years, a growing lack of respect 
for the institution of the Congress has begun to manifest itself in any 
number of damaging ways. To cite just a few other examples:
  The budget process has broken down. This year, for the first time in 
24 years, Congress failed to pass a budget resolution. And we have had 
great difficulty passing reconciliation bills. In fact, the last 
proper, complete reconciliation bill we were able to enact was the 
Omnibus Budget Reconciliation Act of 1993. Since Thursday night we have 
been busily congratulating ourselves over completion of the latest 
budget--as if the simple act of keeping the government open is a unique 
achievement.
  Committees of Conference have been reduced to formalities. Meetings 
of conference committees are now rarely convened, and when they are, it 
is frequently done only to announce an outcome that has been 
predetermined--generally without participation by the minority. The 
appointment of conferees has sometimes been corrupted, with conference 
membership or party ratios within conferences subject to manipulation 
for partisan advantage.
  Even the ``scope of the conference'' requirement of Rule 28 of the 
Standing Rules of the Senate, which prohibited consideration by 
conference committees of provisions not in the bill passed by either 
house, has been overturned. On October 3, 1996, the Senate casually did 
away with that rule by a vote of 56-39.
  Likewise we no longer prohibit legislating on appropriations bills. 
This was a most useful rule that had existed since the adoption of the 
Standing

[[Page S12809]]

Rules of the Senate in 1884; it helped prevent all manner of mischief 
in the annual appropriations process.
  Yet on March 16, 1995, during consideration of a bill to provide 
emergency supplemental appropriations for the Department of Defense, we 
voted, in effect, to repeal the rule. An amendment was offered to 
impose a moratorium on listing of new endangered species by the Fish 
and Wildlife Service. The Chair promptly sustained a point of order 
that the amendment violated the rule against legislation on 
appropriations bills.

  Without any thought given to the consequences, the ruling of the 
Chair was immediately appealed and then overturned, by a vote of 57-42. 
A new precedent had been set, and the rule was wiped out. Not one word 
was said on the floor, before or after the vote, about the terrible 
precedent we were creating.
  I voted against both of those changes to our rules. I found it 
astonishing on both occasions that the Senate would so blithely 
disregard its own procedures.
  The gigantic new Omnibus Appropriations Act, filled with hundreds of 
non-appropriations provisions never considered separately in either 
house, is the latest example of why those two little-noticed votes were 
big mistakes. Indeed, the distinction between appropriations measures 
and legislative changes is now so blurred that on Sunday, the House 
Appropriations Committee posted a press release on its website 
announcing ``Significant Legislative Provisions in Appropriations 
Bills.''
  Parliamentary irregularities are creeping their way into acceptance. 
For instance, in several cases the Senate has, by unanimous consent, 
``deemed'' bills passed before they are received from the House of 
Representatives. In 1997, a provision giving a $50 billion tax credit 
to the tobacco industry was slipped into a conference report after the 
conference committee had completed its work. (That provision was 
repealed soon after its existence was discovered.)
  In another case in 1998, the routine right to modify a floor 
amendment was used for a different purpose altogether: to undo a 
compromise agreement on assistance to tobacco farmers, and to defeat 
without a vote a bipartisan measure reported by the Committee on 
Finance. Also of concern is the now common practice of filing ``motions 
to bring to a close debate'' under Rule 22--cloture motions--on bills 
before a single word of debate has been uttered on the floor.
  This nonchalance about our procedures reached an extreme in 1995 and 
1996 when we took up the Balanced Budget Amendment to the Constitution 
and the Line Item Veto Act. These measures, which were part of Item One 
in the ``Contract with America,'' proposed to dramatically alter the 
procedures by which Congress, under Article I, Sections 7 and 8, of the 
Constitution, exercises the power of the purse.
  We had the good sense to defeat the Balanced Budget Amendment, albeit 
narrowly. However, the Line Item Veto Act passed the Senate by a vote 
of 69-31 on March 27, 1996--notwithstanding the pleas of this Senator 
and others that the bill was unconstitutional. Ultimately, of course, 
that Act was declared unconstitutional by the Supreme Court on June 25, 
1998 in the case of Clinton v. City of New York. But not before the 
Senator from New York, along with our revered leader Senator Byrd and 
Senators Levin and Hatfield, had to take the extraordinary step of 
becoming plaintiffs in one lawsuit, which was vacated due to lack of 
standing, and amici curiae in a second suit. Happily, as I say, we 
finally prevailed.
  In his powerful concurring opinion concluding that the Line Item Veto 
Act violated the separation of powers, Justice Anthony M. Kennedy wrote 
that ``Liberty is always at stake when one or more of the branches seek 
to transgress the separation of powers.'' Justice Kennedy went on to 
say this: ``The citizen has a vital interest in the regularity of the 
exercise of governmental power.''
  I repeat: ``The citizen has a vital interest in the regularity of the 
exercise of governmental power.''
  Surely this admonition applies to the regularity of the exercise of 
power in the United States Senate. We are not talking about mere 
technicalities or niceties to be observed or ignored at whim. The rules 
and procedures of the United States Congress matter. Just as the 
finely-wrought proscriptions in our Constitution matter. Article I, 
Section 5 of the Constitution provides that ``Each House may determine 
the Rules of its Proceedings. . .'' Those rules are meant to be, and 
must be, obeyed.
  The Supreme Court held that the Line Item Veto Act threatened liberty 
by distorting the carefully designed constitutional procedure for 
passage and enactment of laws. In quite the same way, our failure to 
observe the rules and procedures of this institution threaten, 
ultimately, democratic representation of the American people in the 
Congress. Disregarding our rules erodes the power conferred by citizens 
on each elected Member of the Congress, undermining the integrity of 
our legislative process. And it therefore weakens the Congress as an 
institution and contributes to cynicism and a loss of confidence among 
the citizenry about our competence to govern. If we do not take better 
care, I fear we will find this institution in decline.
  I know that my friend Senator Robert C. Byrd, whose knowledge of the 
Senate rules is unsurpassed, shares these concerns. Yesterday on the 
floor, he said this of the pending Omnibus Appropriations Act:

       I will never vote for another such monstrosity for as long 
     as I am privileged to hold this office. I hope that I never 
     see another such monstrosity. I will never again support such 
     a convolution of the legislative process as the one we have 
     seen this year, and I hope that others will agree that this 
     process is just as silly and as sad and as ridiculous and as 
     disgraceful as I think it is. I hope they will join me in an 
     effort to prevent it in the future.

  That is not the kind of statement that Robert C. Byrd, the Ranking 
Member of the Committee on Appropriations and our sometime President 
pro tempore, would make lightly. I hope Senators were listening.
  Perhaps the Committee on Rules and Administration, on which Senator 
Byrd and I serve together, will see fit to take up this issue. And I do 
hope all Senators will recognize the importance of regular order and 
take greater care with the rules of this institution when the 106th 
Congress convenes in January of 1999.
  In the meantime, on this measure, my vote is No.
  Mr. LOTT. I believe the yeas and nays have been ordered, Mr. 
President. We are ready to proceed to the vote.
  The PRESIDING OFFICER (Mr. Inhofe). The question is on agreeing to 
the conference report. The yeas and nays have been ordered. The clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  Mr. FORD. I announce that the Senator from Arkansas (Mr. Bumpers), 
the Senator from Ohio (Mr. Glenn), the Senator from South Carolina (Mr. 
Hollings), and the Senator from Hawaii (Mr. Inouye) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced, yeas 65, nays 29, as follows:

                      [Rollcall Vote No. 314 Leg.]

                                YEAS--65

     Abraham
     Akaka
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Burns
     Campbell
     Chafee
     Cleland
     Cochran
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Gregg
     Harkin
     Hatch
     Hutchinson
     Hutchison
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerry
     Landrieu
     Lautenberg
     Leahy
     Lieberman
     Lott
     Mack
     McConnell
     Mikulski
     Moseley-Braun
     Murray
     Reed
     Robb
     Roberts
     Rockefeller
     Roth
     Sarbanes
     Shelby
     Smith (OR)
     Stevens
     Thompson
     Thurmond
     Torricelli
     Warner
     Wyden

                                NAYS--29

     Allard
     Ashcroft
     Baucus
     Byrd
     Coats
     Collins
     Enzi
     Feingold
     Gramm
     Grams
     Grassley
     Hagel
     Inhofe
     Kerrey
     Kohl
     Kyl
     Levin
     Lugar
     McCain
     Moynihan
     Nickles

[[Page S12810]]


     Reid
     Santorum
     Sessions
     Smith (NH)
     Snowe
     Specter
     Thomas
     Wellstone

                             NOT VOTING--6

     Bumpers
     Glenn
     Helms
     Hollings
     Inouye
     Murkowski
  The conference report was agreed to.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader.

                          ____________________