[Congressional Record Volume 145, Number 40 (Monday, March 15, 1999)]
[Senate]
[Pages S2648-S2678]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HOLLINGS:
S. 605. A bill to solidify the off-budget status of the old-age,
survivors, and disability insurance program under title II of the
Social Security Act and to protect program assets; to the Committee on
the Budget and the Committee on Governmental Affairs, jointly, pursuant
to the order of August 4, 1977, with instructions that if one committee
reports, the committee have 30 days to report or be discharged.
[[Page S2649]]
social security fiscal protection act of 1999
Mr. HOLLINGS. Mr. President, on tomorrow afternoon, we begin to mark
up the budget. That is, when I say we, I mean that the Budget Committee
on the Senate side meets to mark up the budget for the year 2000
commencing October 1 this year, and immediately we will hear the cry,
``Surplus.''
I am constrained to say--as in the earliest days of the Republic when
Patrick Henry said, ``Peace, Peace, everywhere men cry peace,'' and
there was no peace--``surplus, surplus, everywhere men cry surplus,''
but there is no surplus.
The fact is that we are spending $100 billion more than we are taking
in already this fiscal year, and under current policy the deficit for
next year will be right at $90 billion.
Also, Mr. President, another thing to note is the fact that you are
going to hear the cry, ``Saving Social Security.'' I can tell you
categorically that neither the Republican plan, policy or approach nor
the Democratic White House plan, policy or approach will save Social
Security. Both spend 100 percent of the Social Security moneys coming
in the fiscal year 2000, as is the case already this year. And
otherwise, all the wonderful talk about paying down the debt is nothing
more than fancy rhetoric for a flawed policy that has got us into a
situation of fiscal cancer.
Now let me go right to the meaning of ``Surplus.'' Yes, we are making
progress on the budget and the deficit. At a news conference earlier
today I was asked about this and when did we ever expect to get some
results. Well, I see that we are beginning to understand that there is
no surplus. Most of the nation's astute commentators on the budget see
this, too. Allan Sloan of Newsweek said, of course, that the
President's plan was double accounting. Paul Samuelson talks about when
they said ``surplus,'' it was ``surplus in the sky.'' The Concord
Coalition, made up of our former colleagues, Senators Rudman and Nunn,
with whom I have had an on-going engagement, finally says there is no
surplus. And only two weeks ago Barron's, the conservative financial
newspaper--which I hold it here--said: ``Hey, Guys, There is no Budget
Surplus.''
But be that as it may, the White House and many members of Congress
are going to start dealing around the so-called surplus, nonexistent
that it is, for education, Medicare, tax cuts, anything and
everything--everything but saving Social Security. It has been a
constant charade on messages of the party caucuses on both sides since
January, even during the impeachment days; we have got to get our
message out. Unfortunately, most of the media falls right in line with
the message. They don't look into the actual fact or the reality.
On the matter of the so-called surplus and the $100 billion that we
are spending now: mind you me, Mr. President, we set spending caps year
before last, and last year we broke the caps by $12 billion, and we
have already broken the cap in this year's budget by $21 billion, which
would mean in marking up 2000's budget we would immediately have to cut
spending $33 billion to conform to the fiscal year 2000 budget cap.
Instead of doing that, we have already met in unison, almost like a
chorus singing ``Whoopee for the military,'' and we have spent $18
billion on the military, money which is unaccounted for. Instead of
cutting back, the Senate has already exceeded the agreed-to caps by $18
billion. Unless, of course, they intend to cut $18 billion in domestic
programs or cut $18 billion in operation, maintenance and readiness
within the defense budget.
We are going in the wrong direction. No one should think that Social
Security has a surplus. This fiscal year, we have a surplus of the
amount required to be paid out, but since we have been spending it each
year there is a $730 billion deficit due and owing. Social Security is
in the red.
So there are no surpluses. Even trying to get around that to try to
get something to politic on for this year and next year, the Campaign
2000, they say, ``Well, wait a minute; we will start our tax cuts in
the year 2002 when there is one document to the effect there might be a
slight surplus in Social Security, over and above the Social Security
amount or otherwise we can spend it on Medicare beginning in 2000''--
anything for the Campaign 2000.
They talk in the Chamber about the Chinese. Come, come, come. It is
not the Chinese. It is not the baby boomers in the next generation. It
is the adults in Congress who are looting the Social Security trust
fund. Each one of these particular plans spends 100 percent of the
Social Security so-called surplus.
How do I say that? Well, it is easy. You go back into the original
law--and I have a copy of the law itself--section 201.
I ask unanimous consent to have that printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Social Security Act (Act of August 14, 1935) [H.R. 7260]
Title II--Federal Old-Age Benefits Old-Age Reserve Account
Section 201. (a) There is hereby created an account in the
Treasury of the United States to be known as the Old-Age
Reserve Account hereinafter in this title called the Account.
There is hereby authorized to be appropriated to the Account
for each fiscal year, beginning with the fiscal year ending
June 30, 1937, an amount sufficient as an annual premium to
provide for the payments required under this title, such
amount to be determined on a reserve basis in accordance with
accepted actuarial principles, and based upon such tables of
mortality as the Secretary of the Treasury shall from time to
time adopt, and upon an interest rate of 3 per centum per
annum compounded annually. The Secretary of the Treasury
shall submit annually to the Bureau of the Budget an estimate
of the appropriations to be made to the Account.
(b) It shall be the duty of the Secretary of the Treasury
to invest such portion of the amounts credited to the Account
as is not, in his judgment, required to meet current
withdrawals. Such investment may be made only in interest-
bearing obligations of the United States or in obligations
guaranteed as to both principal and interest by the United
States. For such purpose such obligations may be acquired (1)
on original issue at par, or (2) by purchase of outstanding
obligations at the market price. The purposes for which
obligations of the United States may be issued under the
Second Liberty Bond Act, as amended, are hereby extended to
authorize the issuance at par of special obligations
exclusively to the Account. Such special obligations shall
bear interest at the rate of 3 per centum per annum.
Obligations other than such special obligations may be
acquired for the Account only on such terms as to provide an
investment yield of not less than 3 per centum per annum.
(c) Any obligations acquired by the Account (except special
obligations issued exclusively to the Account) may be sold at
the market price, and such special obligations may be
redeemed at par plus accrued interest.
(d) The interest on, and the proceeds from the sale or
redemption of, any obligations held in the Account shall be
credited to and form a part of the Account.
(e) All amounts credited to the Account shall be available
for making payments required under this title.
(f) The Secretary of the Treasury shall include in his
annual report the actuarial status of the Account.
Mr. HOLLINGS. Mr. President, I will send that momentarily to the
desk, section 201 of the Social Security Act. Under section 201 of
Social Security, we required at this moment--and have been doing so for
years--under law to invest only and immediately in T-bills, Treasury
bills, these special securities of the Federal Government. Once we do
that, of course, we get a bond or IOU; the Government gets the money,
and immediately all of those moneys are transferred to the Government
account and it is spent, allocated, or used to pay down the so-called
public debt.
The one way to stop that is a bill, which I will send to the desk and
for which I request proper referral. Mr. President, this bill simply
says, amongst other things--and I will read section 5--that:
Notwithstanding any other provision of law, throughout each
month that begins after October 1, 1999, the Secretary of
Treasury shall maintain, in a secure repository or
repositories, cash in a total amount equal to the total
redemption value of all obligations issued to the Federal
Old-Age and Survivors Insurance Trust Fund and the Federal
Disability Insurance Trust Fund pursuant to section 201(d) of
the Social Security Act that are outstanding on the first day
of each month.
Advisedly, Mr. President, this was worked out by none other than my
Social Security friends. At one time, I had the distinction of being
the chairman of the Budget Committee. We had an outstanding staffer
then named Ken Apfel. He is now the Social Security Administrator. I
called over there and I said: Let's stop this roundabout dance
[[Page S2650]]
about surpluses and spending all the money and everything else; I want
you to write a provision whereby we can do exactly what we said when
Congress passed the Social Security Act.
Remember old John Mitchell, under the Nixon administration? He said,
``Watch what we do, not what we say.'' I am afraid on budget matters we
have arrived exactly at that point. But, in any event, to do what we
say, we have prepared this bill and now it has been introduced and, if
passed by the Congress, yes, we will save Social Security.
Immediately, one of the distinguished Senators said, ``Wait a minute.
Is the money going to just sit there?''
No. Mr. President, that money will be invested in T-bills, just as it
has been all these years. Or, if there is an additional plan, like the
Kerrey-Moynihan plan, like our Thrift Savings Plan--a certain
percentage invested in the market in order to make more money but take
on more risk--we can debate that. What this particular bill really does
is save Social Security. Social Security funds will not be spent, save
and excepting on Social Security purposes.
This is exactly what was intended by Mr. Greenspan when he headed the
Greenspan Commission in 1983. In 1983, section 21 of the Greenspan
Commission report said to take Social Security outside of the unified
budget, outside of the unified deficit, and set it aside in trust. I
struggled from 1983 until 1990 to translate Chairman Greenspan's
recommendations into law. I thought we had done it in 1990, when we
passed the Budget Act by a vote of 98 Senators here on the floor of the
Senate and almost an equal majority, overwhelming as it was, over on
the House side. President Bush, on November 5, 1990, signed the bill
into law, including section 13301 of the Budget Act, which stated
Congress could not spend Social Security moneys on anything other than
the Social Security program; you had it outside of the unified budget
and the deficit.
Unfortunately, Mr. President, that has been ignored. That is why I
have to reword it this way. But the contemplation at the particular
time, the law itself, the policy of the U.S. Government with respect to
corporate America--we passed the Pension Reform Act of 1994 saying:
Thou shalt not, in corporate America, spend your pension fund to pay
off the company debt.
The most interesting and ironic thing is, when Denny McLain, the
former great pitcher for the Detroit Tigers, became the head of a
corporation and paid off its debt with the pension fund, he was sent to
jail for 8 years. If you can find what jail poor Denny is in, say to
him, ``Denny, next time, run for the U.S. Senate. Instead of a jail
term, they will give you the good government award.''
That is exactly what we are doing. We violate our own policy. We pay
off the debt with the Social Security Trust Fund and have been doing it
for 15 years.
That gets me immediately to the point of so-called paying off the
public debt. You know, they have these euphemisms and different
expressions that come around budget time and make you think you have a
real policy on board. That has been the policy.
Admittedly, if you had a stagnant economy, if you had a dormant stock
market, you could welcome paying off the public debt to get the economy
and the stock market moving and everything else. But to do it, not over
just a year or 2, but to do it for the last 15 years to the tune of in
excess of $100 billion, what it has really done is given us fiscal
cancer. We have gone up, up, and away with the national debt, and the
interest costs are killing us.
Let me dwell a minute on the interest costs on the national debt. The
interest cost, when President Lyndon Johnson last balanced the budget,
was $16 billion. Today the interest cost is projected to be $357
billion, almost a billion dollars a day. What it says to me is, this
year I have to spend--and next year I have to spend--$357 billion for
nothing. If I had been fiscally prudent, I could have had $80 billion
for tax cuts plus $80 billion for spending increases plus $80 billion
to pay down the debt plus $80 billion to save Social Security. That is
$320 billion. I would have had $37 billion for you to have a party out
here on the west front when I jump off the Capitol dome.
Since 1995, I have been telling Chairman Domenici, trying to bring
sense to this entire budget debate by talking in the extreme, that by
the year 2002, if he had a balanced budget, truly balanced--if we were
paying out less than what we were bringing in or just at that amount--I
would jump off the Capitol dome. And I reiterate the pledge. Let's make
the bets--``Get old Hollings to jump off the dome.'' Because under
current policies, no one can possibly balance the budget while
exceeding revenue by over $100 billion. Nobody is cutting $100 billion.
They are spending $18 billion more unaccounted for, breaking the caps.
Nobody is spending less than $90 billion. So we know with all of this
spending for tax cuts, Medicare, education, housing, and everything
else of that kind, that we are in deep trouble.
We have fiscal cancer. What we really should do, probably, as Mr.
Greenspan, the head of the Federal Reserve, finally came around to
saying, is do nothing: take this year's budget for next year. I did
that as the Governor of South Carolina. I capped the debt. By the way,
that would bring truth in budgeting to this crowd, if they are right.
Let's plead guilty: They are right, I am wrong, there is a surplus and
we are going to pay down the debt. If that occurs, we can cap the debt
as of October 1 of this year, the beginning of the next fiscal year.
Whatever it is, since there is a surplus and since we are going to pay
down the debt, let's cap it so it does not exceed that particular
amount.
You cannot get the White House--I faced them down in one of these
briefings--to go along with it. I will make the motion and we will see
how many people vote for that.
I am trying to bring truth to our federal budget. I am trying to
avoid the fiscal cancer. The Republicans talk about an $80 billion
across-the-board tax cut. I want a $357 billion tax cut this year, next
year, and right along the line. I want, in that 10-year period, $3.5
trillion in tax cuts, not just this $800 billion tax cut. I want to get
rid of this waste in Government.
I served on the Grace Commission to Eliminate Waste. I know what
waste is. I speak advisedly. Before long, if those interest rates go
up, instead of $357 billion, we will be up around $500 billion in
interest costs. It is the largest item in the domestic budget for
spending at this minute.
What we ought to do is get a hold of ourselves, start talking sense
to each other, work out a plan to take care of the needs of Government,
but quit using the Social Security surplus and trust fund as a
political slush fund for any and every idea on the media message. And
the media are going along with this nonsense and act like we actually
are doing it. My particular bill will bring sobriety to the entire
process and debate.
Mr. President, I ask unanimous consent that the bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 605
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Social Security Fiscal
Protection Act of 1999''.
SEC. 2. OFF BUDGET STATUS OF SOCIAL SECURITY TRUST FUNDS.
Notwithstanding any other provision of law, the receipts
and disbursements of the Federal Old-Age and Survivors
Insurance Trust Fund and the Federal Disability Insurance
Trust Fund shall not be counted as new budget authority,
outlays, receipts, or deficit or surplus for purposes of--
(1) the budget of the United States Government as submitted
by the President,
(2) the congressional budget, or
(3) the Balanced Budget and Emergency Deficit Control Act
of 1985.
SEC. 3. EXCLUSION OF RECEIPTS AND DISBURSEMENTS FROM SURPLUS
AND DEFICIT TOTALS.
The receipts and disbursements of the old-age, survivors,
and disability insurance program established under title II
of the Social Security Act and the revenues under sections
86, 1401, 3101, and 3111 of the Internal Revenue Code of 1986
related to such program shall not be included in any surplus
or deficit totals required under the Congressional Budget Act
of 1974 or chapter 11 of title 31, United States Code.
SEC. 4. CONFORMITY OF OFFICIAL STATEMENTS TO BUDGETARY
REQUIREMENTS.
Any official statement issued by the Office of Management
and Budget or by the Congressional Budget Office of surplus
or deficit totals of the budget of the United States
Government as submitted by the President
[[Page S2651]]
or of the surplus or deficit totals of the congressional
budget, and any description of, or reference to, such totals
in any official publication or material issued by either of
such Offices, shall exclude all receipts and disbursements
under the old-age, survivors, and disability insurance
program under title II of the Social Security Act and the
related provisions of the Internal Revenue Code of 1986
(including the receipts and disbursements of the Federal Old-
Age and Survivors Insurance Trust Fund and the Federal
Disability Insurance Trust Fund).
SEC. 5. REPOSITORY REQUIREMENT.
Notwithstanding any other provision of law, throughout each
month that begins after October 1, 1999, the Secretary of the
Treasury shall maintain, in a secure repository or
repositories, cash in a total amount equal to the total
redemption value of all obligations issued to the Federal
Old-Age and Survivors Insurance Trust Fund and the Federal
Disability Insurance Trust Fund pursuant to section 201(d) of
the Social Security Act that are outstanding on the first day
of such month.
______
By Mr. NICKLES (for himself, Mr. Hatch, Mr. Mack, and Mrs.
Feinstein):
S. 606. A bill for the relief of Global Exploration and Development
Corporation, Kerr-McGee Corporation, and Kerr-McGee Chemical, LLC
(successor to Kerr-McGee Chemical Corporation), and for other purposes;
to the Committee on the Judiciary.
private relief bill
Mr. NICKLES. Mr. President, today I introduce S. 606 for Senator
Mack, Senator Feinstein, Senator Hatch, and myself. This bill is
intended to resolve litigation between the federal government and Kerr-
McGee Corporation and Kerr-McGee Chemical, LLC (successor to Kerr-McGee
Chemical Corporation) and Global Exploration and Development
Corporation. This legislation embodies an agreement that has been
reviewed and accepted by the Hearing Officer and a three judge
reviewing panel. The Department of Justice has no objection to this
legislation. In addition, this legislation would also make it a
criminal act to distribute certain information relating to explosives,
destructive devices, and weapons of mass destruction. This bill was
reported by the Committee on the Judiciary in this form during the
105th Congress.
As background to this relief for Kerr-McGee and Global Exploration,
in 1964, they first filed applications for phosphate prospecting
permits in Osceola National Forest. Under Sec. 211(a) of the Mineral
Lands Leasing Act, the Secretary can only grant prospecting permit
applications following a determination that the public interest will be
served by doing so. The U.S. Forest Service must also consent to the
issuance of the prospecting permits. The permits were granted, and the
plaintiffs subsequently discovered phosphate deposits.
The plaintiffs then filed applications with the Department of
Interior for leases to mine the deposits in January of 1969. Whether
the plaintiffs are entitled to leases is governed by the Mineral Lands
Leasing Act (30 U.S.C. sec. 181 et. seq.) which requires the Secretary
of Interior to issue leases to a permittee that has discovered a
``valuable deposit'' of mineral. The U.S. Geological Survey, the Bureau
of Mines and the Office of Minerals Policy Department all confirmed
that valuable deposits had in fact been discovered (valued at $100 to
$300 million in 1970's dollars).
Kerr-McGee filed suit in 1973 and Global filed suit in 1978 seeking
the immediate issuance of the leases. In 1981, the U.S. Forest Service
began setting out the requirements for reclamation. The Department of
Interior concluded the reclamation technology did not exist based on an
Environmental Assessment (``EA'') prepared by Interior and issued in
January of 1983. Based on that conclusion, the plaintiffs' applications
for leases to mine the deposits were rejected.
Agency personnel had told plaintiffs that they would be able to
comment on the EA findings before their final issuance. By law, the
government was required to permit the applicants to participate in the
EA process by submitting comments and expert analysis on the
feasibility of reclamation. Plaintiffs were never given a chance to
participate in the EA process, to show feasibility of reclamation, or
to comment on the draft EA.
In 1984, the Florida Wilderness Act (Pub. L. 98-430, 98 Stat. 1665)
was enacted which prevented the issuance of phosphate mining leases in
Osceola, effectively foreclosing a legal remedy since plaintiffs could
no longer ask for reversal of the prior decision or for relief for
damages incurred. The House Committee Report accompanying the Act
stated that ``in the event the courts ultimately determined that
applicants have established lease rights, [the Act] provides that
leases will not be issued. The applicants would instead be compensated
as required in accordance with constitutional principles.'' H. Rpt. 98-
102 Part I, 97th Cong., 1st Sess., at 7.
The plaintiffs pursued their case in federal district court and the
Court of Appeals for the D.C. Circuit. The Court of Appeals vacated the
district court's judgment and remanded the case with instructions to
dismiss the suit as moot in light of Florida Wilderness Act. The U.S.
Court of Federal Claims then questioned whether or not it had
jurisdiction to hear the case, leaving plaintiffs without a forum to be
heard.
Under 28 U.S.C. 2509, a congressional reference empowers a judge of
the Court of Federal Claims to sit as a Hearing Officer, hold a hearing
and determine the facts of the case. The Hearing Officer's findings and
conclusions are then reviewed by a three-judge panel. The panel then
adopts or modifies the findings and conclusions and submits its report
to the Chief Judge who then transmits the recommendations to the house
of Congress which referred the case.
On Jan. 10, 1991, H. Res. 29 and H.R. 477 were introduced during the
102nd Congress to refer the case to the U.S. Court of Federal Claims in
order to compensate plaintiffs for any damages incurred on account of
the failure of the Secretary of the Interior to grant and permit mining
operations pursuant to phosphate leases in the Osceola National Forest.
On July 10, 1991, the House Judiciary Subcommittee on Administrative
Law and Government Relations held hearings on H.R. 477 and H. Res. 29.
On October 3, 1991, the Subcommittee reported the resolution, with a
technical amendment, to full Committee. On July 21, 1992, the House of
Representatives passed H. Res. 29, referring H.R. 477 to Court of
Claims. The formal Congressional reference confirmed jurisdiction for
the plaintiffs' suit in the U.S. Court of Federal Claims.
In the Court of Federal Claims, the Government moved for summary
judgement. The Court ruled that plaintiffs did not have a legal claim
but did have an equitable claim since the government failed to comply
with the legal requirement of the EA. The court ruled that the
Secretary of Interior had made an error in denying phosphate mining
leases on the basis of an EA without allowing plaintiffs the
opportunity to comment. The court concluded that the error was not
harmless.
Remaining was the question of fact whether reclamation was feasible,
according to Forest Service standards as of January of 1983. A 6 week
evidentiary hearing was held on that issue from October 13 to December
14, 1995. Plaintiffs presented leading experts in reclamation who
showed they could have successfully reclaimed the land, that the
analysis in the EA was scientifically incorrect, and that EA members
who concluded successful reclamation had their conclusions omitted.
Before the court issued its opinion, the parties agreed to a joint
stipulation of settlement and submitted this stipulation to the Court:
Global is to received $9.5 million; Kerr-McGee is to receive $10
million, which it will return to the government as partial payment for
a Superfund cleanup site in Louisiana; and Kerr-McGee Chemical LLC is
to receive $0. Global, Kerr-McGee and the Department of Justice
accepted the report of the Hearing Officer, dated November 18, 1996,
and the Review Panel endorsed the decision.
On November 18, 1996, the court published its recommendations to
Congress that the disputes be settled for the amounts set forth in the
joint stipulation of settlement. The court's recommendation was based
on a finding that the settlement was fair, just, equitable and
supported by the evidence. As noted in the Hearing Officer's report,
``if the case were to proceed to final disposition and plaintiffs to
prevail, then the Government would face a potential liability
substantially in excess of the proposed settlement amounts. Conversely,
however, a victory for the Government would not assure it of protection
against all future liability.''
[[Page S2652]]
This legislation would implement this settlement, and we urge its
prompt consideration and approval by the Senate.
For the information of all Senators, I have included the House
Committee Report from the 105th Congress which provides a very clear
background and the need for this provision.
In addition, the bill includes language related to the prohibition of
distribution of information related to destructive devices, explosives,
and weapons of mass destruction in furtherance of a violent crime. This
language was added to this legislation during markup of H.R. 1211
during the 105th Congress in the Senate Judiciary Committee by Senator
Feinstein and is a reasonable resolution of an issue pushed by Senator
Feinstein for several years.
I urge quick consideration and passage of this overdue and important
legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 606
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SATISFACTION OF CLAIMS AGAINST THE UNITED STATES.
(a) Payment of Claims.--The Secretary of the Treasury shall
pay, out of money not otherwise appropriated--
(1) to the Global Exploration and Development Corporation,
a Florida corporation incorporated in Delaware, $9,500,000;
(2) to Kerr-McGee Corporation, an Oklahoma corporation
incorporated in Delaware, $10,000,000; and
(3) to Kerr-McGee Chemical, LLC, a limited liability
company organized under the laws of Delaware, $0.
(b) Condition of Payment.--
(1) Global exploration and development corporation.--The
payment authorized by subsection (a)(1) is in settlement and
compromise of all claims of Global Exploration and
Development Corporation, as described in the recommendations
of the United States Court of Federal Claims set forth in 36
Fed. Cl. 776.
(2) Kerr-mcgee corporation and kerr-mcgee chemical, llc.--
The payment authorized by subsections (a)(2) and (a)(3) are
in settlement and compromise of all claims of Kerr-McGee
Corporation and Kerr-McGee Chemical, LLC, as described in the
recommendations of the United States Court of Federal Claims
set forth in 36 Fed. Cl. 776.
SEC. 2. CRIMINAL PROHIBITION ON THE DISTRIBUTION OF CERTAIN
INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE
DEVICES, AND WEAPONS OF MASS DESTRUCTION.
(a) Unlawful Conduct.--Section 842 of title 18, United
States Code, is amended by adding at the end the following:
``(p) Distribution of Information Relating to Explosives,
Destructive Devices, and Weapons of Mass Destruction.--
``(1) Definitions.--In this subsection--
``(A) the term `destructive device' has the same meaning as
in section 921(a)(4);
``(B) the term `explosive' has the same meaning as in
section 844(j); and
``(C) the term `weapon of mass destruction' has the same
meaning as in section 2332a(c)(2).
``(2) Prohibition.--It shall be unlawful for any person--
``(A) to teach or demonstrate the making or use of an
explosive, a destructive device, or a weapon of mass
destruction, or to distribute by any means information
pertaining to, in whole or in part, the manufacture or use of
an explosive, destructive device, or weapon of mass
destruction, with the intent that the teaching,
demonstration, or information be used for, or in furtherance
of, an activity that constitutes a Federal crime of violence;
or
``(B) to teach or demonstrate to any person the making or
use of an explosive, a destructive device, or a weapon of
mass destruction, or to distribute to any person, by any
means, information pertaining to, in whole or in part, the
manufacture or use of an explosive, destructive device, or
weapon of mass destruction, knowing that such person intends
to use the teaching, demonstration, or information for, or in
furtherance of, an activity that constitutes a Federal crime
of violence.''.
(b) Penalties.--Section 844 of title 18, United States
Code, is amended--
(1) in subsection (a), by striking ``person who violates
any of subsections'' and inserting the following: ``person
who--
``(1) violates any of subsections'';
(2) by striking the period at the end and inserting ``;
and''; and
(3) by adding at the end the following:
``(2) violates subsection (p)(2) of section 842, shall be
fined under this title, imprisoned not more than 20 years, or
both.''; and
(4) in subsection (j), by striking ``and (i)'' and
inserting ``(i), and (p)''.
______
By Mr. CRAIG (for himself and Mr. Murkowski):
S. 607. A bill reauthorize and amend the National Geologic Mapping
Act of 1992; to the Committee on Energy and Natural Resources.
THE NATIONAL GEOLOGIC MAPPING REAUTHORIZATION ACT OF 1999
Mr. CRAIG. Mr. President, I am today introducing along with Senator
Murkowski, the National Geologic Mapping Reauthorization Act of 1999.
This is an act that has been very beneficial to the Nation and deserves
to be reauthorized.
The National Cooperative Geologic Mapping Act (NCGMA) was originally
signed into law in 1992. The purpose of this geologic mapping program
is to provide the nation with urgently needed geologic maps that can be
and are used by a diverse clientele. These maps are vital to
understanding groundwater regimes, mineral resources, geologic hazards
such as landslides and earthquakes, geology essential for all types of
land use planning, as well as providing basic scientific data. The
NCGMA contains three parts; FedMap--the U.S. Geological Survey's
geologic mapping program, StateMap--the state geological survey's part
of the act, and EdMap--a program to encourage the training of future
geologic mappers at our colleges and universities.
StateMap is a competitive program wherein the states submit proposals
for geologic mapping that are critiqued by a peer review panel. A
requirement of this section of the legislation is that each federal
dollar be matched one-for-one with state funds. Each participating
state has a StateMap Advisory Committee to insure that its proposal
addresses priority areas and needs. The success of this program insured
reauthorization of similar legislation in 1997 with widespread
bipartisan support in both the House and Senate.
According to a recent poll conducted by the Association of American
State Geologists, the 50 states have produced over 1,900 new geologic
maps since the program authorized by this legislation started. There
are an additional 300 maps currently being completed. Also, the states
have digitized 650 existing geologic maps (1:24,000 scale) so they can
be used as a computer data base. All of these maps have been submitted
to the U.S. Geological Survey for inclusion in a national geologic map
database. One of the purposes of this database is to eventually provide
a digital geologic map of the entire nation at a scale of 1:100,000.
This national database will assure that future maps will be easy to use
by anyone.
The Edmap and Fedmap sections of the legislation support mapping
projects led by Universities and regional mapping projects that address
needs for geologic information to deal with land, water, mineral
resource, natural hazard mitigation and environmental protection
issues. Fed map projects are coordinated with State and university
mapping portions of the program, through regional meetings, liaison
groups and national reviews of ongoing projects.
Mr. President, the National Geologic Mapping Reauthorization Act
benefits numerous citizens every day by assuring there is accurate and
usable geologic information available to communities and individuals so
better and safer resource use decisions can be made. I encourage my
colleagues to support this legislation and am committed to its timely
consideration.
Thank you, Mr. President, I ask unanimous consent that a copy of the
bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 607
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Geologic Mapping
Reauthorization Act of 1999''.
SEC. 2. FINDINGS.
Section 2(a) of the National Geologic Mapping Act of 1992
(43 U.S.C. 31a(a)) is amended--
(1) in paragraph (7), by striking ``and'' at the end;
(2) by redesignating paragraph (8) as paragraph (10);
(3) by inserting after paragraph (7) the following:
``(8) geologic map information is required for the
sustainable and balanced development of natural resources of
all types, including energy, minerals, land, water, and
biological resources;
``(9) advances in digital technology and geographical
information system science
[[Page S2653]]
have made geologic map databases increasingly important as
decision support tools for land and resource management;
and''; and
(4) in paragraph (10) (as redesignated by paragraph (2)),
by inserting ``of surficial and bedrock deposits'' after
``geologic mapping''.
SEC. 3. DEFINITIONS.
Section 3 of the National Geologic Mapping Act of 1992 (43
U.S.C. 31b) is amended--
(1) by redesignating paragraphs (4), (5), (6), and (7) as
paragraphs (6), (7), (8), and (10), respectively;
(2) by inserting after paragraph (3) the following:
``(4) Education component.--The term `education component'
means the education component of the geologic mapping program
described in section 6(d)(3).
``(5) Federal component.--The term `Federal component'
means the Federal component of the geologic mapping program
described in section 6(d)(1).''; and
(3) by inserting after paragraph (8) (as redesignated by
paragraph (1)) the following:
``(9) State component.--The term `State component' means
the State component of the geologic mapping program described
in section 6(d)(2).''.
SEC. 4. GEOLOGIC MAPPING PROGRAM.
Section 4 of the National Geologic Mapping Act of 1992 (43
U.S.C. 31c) is amended--
(1) in subsection (b)(1)--
(A) in the first sentence, by striking ``priorities'' and
inserting ``national priorities and standards for'';
(B) in subparagraph (A)--
(i) by striking ``develop a geologic mapping program
implementation plan'' and inserting ``develop a 5-year
strategic plan for the geologic mapping program''; and
(ii) by striking ``within 300 days after the date of
enactment of the National Geologic Mapping Reauthorization
Act of 1997'' and inserting ``not later than 1 year after the
date of enactment of the National Geologic Mapping
Reauthorization Act of 1999'';
(C) in subparagraph (B), by striking ``within 90 days after
the date of enactment of the National Geologic Mapping
Reauthorization Act of 1997'' and inserting ``not later than
1 year after the date of enactment of the National Geologic
Mapping Reauthorization Act of 1999''; and
(D) in subparagraph (C)--
(i) in the matter preceding clause (i), by striking
``within 210 days after the date of enactment of the National
Geologic Mapping Reauthorization Act of 1997'' and inserting
``not later than 3 years after the date of enactment of the
National Geologic Mapping Reauthorization Act of 1999, and
biennially thereafter'';
(ii) in clause (i), by striking ``will coordinate'' and
inserting ``are coordinating'';
(iii) in clause (ii), by striking ``will establish'' and
inserting ``establish''; and
(iv) in clause (iii), by striking ``will lead to'' and
inserting ``affect''; and
(2) by striking subsection (d) and inserting the following:
``(d) Program Components--
``(1) Federal component.--
``(A) In general.--The geologic mapping program shall
include a Federal geologic mapping component, the objective
of which shall be to determine the geologic framework of
areas determined to be vital to the economic, social,
environmental, or scientific welfare of the United States.
``(B) Mapping priorities.--For the Federal component,
mapping priorities--
``(i) shall be described in the 5-year plan under section
6; and
``(ii) shall be based on--
``(I) national requirements for geologic map information in
areas of multiple-issue need or areas of compelling single-
issue need; and
``(II) national requirements for geologic map information
in areas where mapping is required to solve critical earth
science problems.
``(C) Interdisciplinary studies.--
``(i) In general.--The Federal component shall include
interdisciplinary studies that add value to geologic mapping.
``(ii) Representative categories.--Interdisciplinary
studies under clause (i) may include--
``(I) establishment of a national geologic map database
under section 7;
``(II) studies that lead to the implementation of cost-
effective digital methods for the acquisition, compilation,
analysis, cartographic production, and dissemination of
geologic map information;
``(III) paleontologic, geochrono-logic, and isotopic
investigations that provide information critical to
understanding the age and history of geologic map units;
``(IV) geophysical investigations that assist in
delineating and mapping the physical characteristics and 3-
dimensional distribution of geologic materials and geologic
structures; and
``(V) geochemical investigations and analytical operations
that characterize the composition of geologic map units.
``(iii) Use of results.--The results of investigations
under clause (ii) shall be contributed to national databases.
``(2) State component.--
``(A) In general.--The geologic mapping program shall
include a State geologic mapping component, the objective of
which shall be to establish the geologic framework of areas
determined to be vital to the economic, social,
environmental, or scientific welfare of individual States.
``(B) Mapping priorities.--For the State component, mapping
priorities--
``(i) shall be determined by State panels representing a
broad range of users of geologic maps; and
``(ii) shall be based on--
``(I) State requirements for geologic map information in
areas of multiple-issue need or areas of compelling single-
issue need; and
``(II) State requirements for geologic map information in
areas where mapping is required to solve critical earth
science problems.
``(C) Integration of federal and state priorities.--A
national panel including representatives of the Survey shall
integrate the State mapping priorities under this paragraph
with the Federal mapping priorities under paragraph (1).
``(D) Use of funds.--The Survey and recipients of grants
under the State component shall not use more than 15.25
percent of the Federal funds made available under the State
component for any fiscal year to pay indirect, servicing, or
program management charges.
``(E) Federal share.--The Federal share of the cost of
activities under the State component for any fiscal year
shall not exceed 50 percent.
``(3) Education component.--
``(A) In general.--The geologic mapping program shall
include a geologic mapping education component for the
training of geologic mappers, the objectives of which shall
be--
``(i) to provide for broad education in geologic mapping
and field analysis through support of field studies; and
``(ii) to develop academic programs that teach students of
earth science the fundamental principles of geologic mapping
and field analysis.
``(B) Investigations.--The education component may include
the conduct of investigations, which--
``(i) shall be integrated with the Federal component and
the State component; and
``(ii) shall respond to mapping priorities identified for
the Federal component and the State component.
``(C) Use of funds.--The Survey and recipients of grants
under the education component shall not use more than 15.25
percent of the Federal funds made available under the
education component for any fiscal year to pay indirect,
servicing, or program management charges.
``(D) Federal share.--The Federal share of the cost of
activities under the education component for any fiscal year
shall not exceed 50 percent.''.
SEC. 5. ADVISORY COMMITTEE.
Section 5 of the National Geologic Mapping Act of 1992 (43
U.S.C. 31d) is amended--
(1) in subsection (a)(3), by striking ``90 days after the
date of enactment of the National Geologic Mapping
Reauthorization Act of 1997'' and inserting ``1 year after
the date of enactment of the National Geologic Mapping
Reauthorization Act of 1999''; and
(2) in subsection (b)--
(A) in paragraph (1), by striking ``critique the draft
implementation plan'' and inserting ``update the 5-year
plan''; and
(B) in paragraph (3), by striking ``this Act'' and
inserting ``sections 4 through 7''.
SEC. 6. GEOLOGIC MAPPING PROGRAM 5-YEAR PLAN.
The National Geologic Mapping Act of 1992 is amended by
striking section 6 (43 U.S.C. 31e) and inserting the
following:
``SEC. 6. GEOLOGIC MAPPING PROGRAM 5-YEAR PLAN.
``(a) In General.--The Secretary, acting through the
Director, shall, with the advice and review of the advisory
committee, prepare a 5-year plan for the geologic mapping
program.
``(b) Requirements.--The 5-year plan shall identify--
``(1) overall priorities for the geologic mapping program;
and
``(2) implementation of the overall management structure
and operation of the geologic mapping program, including--
``(A) the role of the Survey in the capacity of overall
management lead, including the responsibility for developing
the national geologic mapping program that meets Federal
needs while fostering State needs;
``(B) the responsibilities of the State geological surveys,
with emphasis on mechanisms that incorporate the needs,
missions, capabilities, and requirements of the State
geological surveys, into the nationwide geologic mapping
program;
``(C) mechanisms for identifying short- and long-term
priorities for each component of the geologic mapping
program, including--
``(i) for the Federal component, a priority-setting
mechanism that responds to--
``(I) Federal mission requirements for geologic map
information;
``(II) critical scientific problems that require geologic
maps for their resolution; and
``(III) shared Federal and State needs for geologic maps,
in which joint Federal-State geologic mapping projects are in
the national interest;
``(ii) for the State component, a priority-setting
mechanism that responds to--
``(I) specific intrastate needs for geologic map
information; and
``(II) interstate needs shared by adjacent States that have
common requirements; and
``(iii) for the education component, a priority-setting
mechanism that responds to requirements for geologic map
information that are dictated by Federal and State mission
requirements;
[[Page S2654]]
``(D) a mechanism for adopting scientific and technical
mapping standards for preparing and publishing general- and
special-purpose geologic maps to--
``(i) ensure uniformity of cartographic and scientific
conventions; and
``(ii) provide a basis for assessing the comparability and
quality of map products; and
``(E) a mechanism for monitoring the inventory of published
and current mapping investigations nationwide to facilitate
planning and information exchange and to avoid redundancy.''.
SEC. 7. NATIONAL GEOLOGIC MAP DATABASE.
Section 7 of the National Geologic Mapping Act of 1992 (43
U.S.C. 31f) is amended by striking the section heading and
all that follows through subsection (a) and inserting the
following:
``SEC. 7. NATIONAL GEOLOGIC MAP DATABASE.
``(a) Establishment.--
``(1) In general.--The Survey shall establish a national
geologic map database.
``(2) Function.--The database shall serve as a national
catalog and archive, distributed through links to Federal and
State geologic map holdings, that includes--
``(A) all maps developed under the Federal component and
the education component;
``(B) the databases developed in connection with
investigations under subclauses (III), (IV), and (V) of
section 4(d)(1)(C)(ii); and
``(C) other maps and data that the Survey and the
Association consider appropriate.''.
SEC. 8. BIENNIAL REPORT.
The National Geologic Mapping Act of 1992 is amended by
striking section 8 (43 U.S.C. 31g) and inserting the
following:
``SEC. 8. BIENNIAL REPORT.
``Not later 3 years after the date of enactment of the
National Geologic Mapping Reauthorization Act of 1999 and
biennially thereafter, the Secretary shall submit to the
Committee on Resources of the House of Representatives and
the Committee on Energy and Natural Resources of the Senate a
report that--
``(1) describes the status of the national geologic mapping
program;
``(2) describes and evaluates the progress achieved during
the preceding 2 years in developing the national geologic map
database; and
``(3) includes any recommendations that the Secretary may
have for legislative or other action to achieve the purposes
of sections 4 through 7.''.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
The National Geologic Mapping Act of 1992 is amended by
striking section 9 (43 U.S.C. 31h) and inserting the
following:
``SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--There are authorized to be appropriated
to carry out this Act--
``(1) $28,000,000 for fiscal year 1999;
``(2) $30,000,000 for fiscal year 2000;
``(3) $37,000,000 for fiscal year 2001;
``(4) $43,000,000 for fiscal year 2002;
``(5) $50,000,000 for fiscal year 2003;
``(6) $57,000,000 for fiscal year 2004; and
``(7) $64,000,000 for fiscal year 2005.
``(b) Allocation of Appropriations.--Of any amounts
appropriated for any fiscal year in excess of the amount
appropriated for fiscal year 2000--
``(1) 48 percent shall be available for the State
component; and
``(2) 2 percent shall be available for the education
component.''.
______
By Mr. MURKOWSKI (for himself, Mr. Craig, Mr. Grams, and Mr.
Crapo):
S. 608. A bill to amend the Nuclear Waste Policy Act of 1982; to the
Committee on Energy and Natural Resources.
nuclear waste policy act of 1999
Mr. CRAIG. Mr. President, I come to the floor today with my
colleague, Senator Frank Murkowski of Alaska, chairman of the Energy
and Natural Resources Committee, and Senator Rod Grams to introduce the
Nuclear Waste Policy Act of 1999.
Once again, Congress must clarify its intention toward the disposal
of spent nuclear fuel and nuclear waste. It is for this reason that I
introduced the Nuclear Waste Policy Act of 1997, which passed with
broad bipartisan support in this body last year, as did similar
legislation in the other body. It is why I am an original cosponsor of
the legislation this year.
We must resolve the problem that this Nation faces with disposing of
nuclear materials. Congress must recognize its responsibility to set a
clear and definitive nuclear material disposal policy. With the passage
of this legislation in the last Congress, the Senate expressed its will
that Government fulfill its responsibilities. This legislation makes
one significant change to the course we are currently on by directing
that an interim storage facility for nuclear materials be constructed
at area 25 at the Nevada test site and that the interim facility be
prepared to accept nuclear materials by June 30, 2003.
The President and the Vice President do not support this provision.
They do not support an interim storage facility at one safe, secure
location in the Nevada desert. What they do support, according to
Energy Secretary Bill Richardson, is an interim storage at 70 some
sites spread across this Nation. They support storage near population
centers and major bodies of water, but not at a site located right next
to a permanent repository, a site where hundreds of nuclear explosions
have already been detonated over the last 50 years.
In an announcement last month, the administration proposes to
federalize storage of spent fuel at commercial reactors around this
country by having the Government come in and take responsibility for
each site. But do not worry, folks, because they promise to come and
pick up the waste eventually, or at least that is what they have been
promising for a long, long while. Well, I have some experience with the
DOE and its promises, as many of my colleagues have, especially in the
area of nuclear waste over the last number of years.
In 1995, the Secretary of Energy promised the State of Idaho, and
signed a court enforceable agreement, that transuranic waste in Idaho
would be headed out of the State to the Waste Isolation Pilot Plant no
later than next month. Now DOE says they can't meet that deadline. Why?
The Environmental Protection Agency has said that the Waste Isolation
Pilot Plant is safe and ready to receive waste, but the State of New
Mexico won't issue a permit for the disposal and that the court won't
lift its injunction.
Now, I do believe our Secretary of Energy is trying in good faith to
honor his commitment to the State of Idaho in moving that waste, but,
once again, on issues of this kind of political sensitivity, our
Government has shown no willingness to lead on this issue, and this
administration is the prime example of a government without leadership.
I know something about the politics of nuclear waste. I know
something about DOE's broken promises. I mentioned the example of WIPP
as a misuse of environmental regulation to subvert the will of
Congress. It is this kind of game playing that we must eliminate.
I guess my bottom line advice to those living next to one of these
commercial nuclear reactors is, when DOE says they will come in and
take responsibility for spent fuel and move it later, do not be fooled.
You need a centralized interim storage facility and you need this
legislation to make it happen.
This administration has said that interim storage in Nevada will
prejudge the repository site investigation now going on at Yucca
Mountain. I think it is important to note that this legislation calls
for beginning operation of an interim storage facility in the year
2003, 2 years after DOE will have recommended the repository site to
the President and 1 year after DOE will have submitted a license
application for the repository to the Nuclear Regulatory Commission.
This can hardly be called rushing ahead recklessly on interim storage.
What it is is sealing the deal, trying to build credibility with the
American people on this Government's responsibility and dedication
toward the appropriate handling of high-level nuclear waste.
In addition to the billions of dollars that utility ratepayers have
contributed to the disposal fund, taxpayers have contributed hundreds
of millions of dollars to the disposal program for the removal of spent
fuel and nuclear waste from the Nation's national laboratory sites.
This legislation will make good on the Government's commitment to the
communities which agreed to host our defense laboratories--that cleanup
of these sites will happen, that it will happen sooner rather than
later, and that defense nuclear waste, our legacy from the cold war,
will be disposed of responsibly.
Just this past week, before the appropriate Appropriations Committee,
I and Senator Domenici heard at length what this administration is
doing to help Russia get rid of its cold war nuclear waste legacy.
While we are going headlong to help them, it is ironic that we cannot
help ourselves. This administration has promised and yet, in 6 years,
has delivered nothing and finally gave up on its promises and found
itself in a box canyon with a lot of lawyers lining up in lawsuits,
because they are now out of compliance with an act that this Congress
passed in the mid-1980s to deal with nuclear waste.
[[Page S2655]]
This bill will assure that the spent fuel from our nuclear fighting
ships and submarines, currently stored at the Idaho National
Engineering and Environmental Laboratory, can be sent to the interim
storage facility beginning in the year 2003. This is good news for both
the Navy and for Idaho. Our nuclear Navy ought to be concerned that DOE
is still playing games with the real hard fact that sooner, rather than
later, they must have a permanent repository for spent nuclear fuel
coming from our Navy vessels.
Spent nuclear fuel will be moved out of Idaho well before the agreed
date of the year 2035 called for in the agreement between Idaho
Governor Batt, DOE and the Navy. This legislation will provide
assurance that nuclear waste now in Idaho for permanent storage will
eventually be disposed of at the repository. The tragedy here, of
course, and we understand it, in the building of safe facilities, is
the long lead time necessary. That is why this legislation is important
now, to construct an interim storage facility ready to receive by the
year 2003.
Critics of this legislation will attempt to distract you over the
issue of transportation. In just a few months we will hear on the floor
of the Senate the term ``mobile Chernobyl.'' This is just so much
politics or political statement. There is absolutely no fact or record
behind that statement other than a scare tactic that some of my
colleagues will attempt to use to support an absence of fact. The fact
is that there have been over 2,500 commercial shipments of spent fuel
in the United States and that there has not been a single death or
injury from the radioactivity nature of the cargo. In my State of
Idaho, there have been over 600 shipments of naval fuel and over 4,000
other shipments of radioactive material. Again, there has been not one
single injury related to the radioactive nature of these shipments.
This is a phenomenal safety record, but it is a real safety record,
because this Government has insisted that the appropriate handling of
our spent nuclear fuels and waste long term be dealt with in the right
way. The proof is in the reality and the responsibility that this
country has taken for years in the transportation of its waste. Those
are the facts as I have related them.
I know that many people would prefer not to address the problem of
spent nuclear fuel disposal. Some of my colleagues are probably
fatigued at the prospect of debating this issue once again in the 106th
Congress. Unfortunately, as long as this administration continues to
stick its head in the sand, sand that is now going to cost millions of
dollars in legal fees, my colleagues and I have no choice but to
address this issue once again for the sake of our country, for the
future of energy production in our country from radioactive materials,
and just the tremendous responsibility we have in making sure to our
public that all of it is done well and safely.
As this legislative body sets policies for the Nation, the Congress
cannot sit by and watch while key components of the energy security of
this Nation, the source of 20 percent of this country's electricity--
and that is coming from nuclear powerplants--risk going down simply
because we cannot manage our waste.
The Nuclear Waste Policy Act of 1999 will address what neither the
1982 nor the 1987 Act did, and that is to provide a cost-effective and
safe means to store spent fuel in the near term while we continue to
investigate and provide for the ultimate disposal.
I thank you, Mr. President. I see my colleague, the chairman of the
full committee, has joined me now on the floor. I yield my time.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. I wish the Presiding Officer a pleasant afternoon.
I thank my colleague, Senator Craig, for his statement relative to
the reality that 22 percent of the Nation's power is generated by
nuclear energy.
Here we are again today, Mr. President, with an obligation to fulfill
a commitment. That obligation and that commitment was made to the
ratepayers, the individuals all over America who depend on nuclear
energy for their power. They paid $14 billion over the last 18 years.
What have they paid for? They have paid the Federal Government to
take the waste under contract in the year 1998. That was a year ago.
Shakespeare wrote in Henry III, ``Delays have dangerous ends. . . .''
We might also add, ``expensive ends.''
In addition to what the ratepayers have paid, there has been over $6
billion expended by the Federal Government in preparation for the waste
primarily at Yucca Mountain. Delay has been the administration's answer
to the problem of what to do with nuclear waste in this country. This
administration simply doesn't want to take it up on its watch under any
terms or circumstances.
In 1997, the administration objected to siting a temporary storage
facility before 1998 when the viability assessment for Yucca Mountain
would be complete.
The so-called ``dangerous ends'' to that delay is that 1998 has come
and gone. The viability assessment was presented and guess what? There
were no show stoppers. Safety issues requiring that we abandon the
proposed Yucca Mountain nuclear waste repository project were not
called for. The next step, of course, is to move on with the licensing,
which is to take place in the year 2001.
What is the delay this year? It is the inability of the
administration to recognize its contractual commitment under the
agreement. To his credit, the new Secretary of Energy Bill Richardson
has come forward with the first ever--and I mean first ever--
administration proposal on nuclear waste. The Department of Energy
would assume ownership of the used nuclear fuel and continue storing it
at its commercial and defense sites in the 41 States across the
country. The cost of the storage would be offset by consumer fees
collected by the Department of Energy over the past 18 years, as I have
stated. These are fees that were to have been dedicated to the removal
and permanent storage of the spent fuel.
While this proposal may seem interesting, let's reflect on it a
little bit, because what it means is that there is no date certain to
remove the waste. The waste would sit onsite near the reactors.
It seems that we have gone full cycle in one sense. If you recognize
that the Government had contracted to take the waste in 1998, the court
has specifically stated that the Federal Government is liable to take
that waste. So the court says, in effect, the Federal Government owns
the waste onsite.
The proposal is the Government take the waste onsite. In fact, it
owns the waste anyway. Think about it. There is a duplication, of
course. I have a map here that I think warrants a little consideration.
It shows some of the sites where we have nuclear fuel and radioactive
waste that is destined for the geologic disposal.
The commercial reactors are in brown in California, in Washington, in
Arizona, in Texas, up and down the east coast, in Illinois.
We have the shutdown reactors with the spent fuel onsite. These are
the little triangles. We have them in Oregon, California, and Illinois.
We have them in Michigan. This is significant amounts of waste that
would go to a central repository at Yucca Mountain if this
administration would come to grips with its responsibility.
Commercial spent nuclear fuel storage facilities are depicted by the
little black squares. There are a few of them around.
Non-DOE research reactors. These are reactors that are spread through
the country.
Then we have the Navy reactor fuel in Idaho. And we have the
Department of Energy-owned spent fuel, high-level radioactive waste in
New Mexico.
We have this all around the country, Mr. President, and the whole
purpose of this legislation is to provide for and put this waste in one
central repository at Yucca Mountain in Nevada where it would be
retrievable. As a consequence, as we look at this proposal--and, again,
I would like to point out there is no date for removal--one of the more
interesting things is that there are claims now brought about by the
nuclear industry against the Federal Government for nonperformance of
its contract. Those claims total somewhere between $60 billion and $80
billion.
The Government is in default for nonperformance of its contractual
obligation. One of the proposals circulated
[[Page S2656]]
is if the Government agrees to take the waste onsite, that those claims
be dropped. If you think about this a little bit more, the Government
has already collected a significant amount of money from the ratepayers
over the last 18 years, some $14 billion. Now the Government is going
to take this waste and use that money, paid for by the ratepayers, to
store the nuclear waste onsite for no timeframe that can be
ascertained. In other words, this waste is going to sit where it is,
Mr. President. We do not know how long because there is no definite
date in the proposal for the administration to take the waste.
So what have we done? We have simply gone full circle. The court said
the Federal Government owned the waste. The Federal Government says
they will take it and store it at site. They will not tell you when
they are going to get rid of it. They use the money the ratepayers pay
to store it there. I don't think that is satisfactory. It is a little
different. It is acknowledging that they have come up with a proposal,
but I do not think it is workable.
What we have here is, if you will, more delay. The Department of
Energy--and really it is not the Department of Energy's fault--it is
the administration that has broken its promise to the electric
consumers, who depend on nuclear energy, people who have paid more than
$14 billion to the Federal Government.
That $14 billion paid by consumers was designed specifically to
remove this waste, Mr. President, to a single--a single--storage
facility at Yucca Mountain. And that is what we have been building. The
waste, again, was supposed to be taken in the year 1998.
Where have we been over the past 15 years? We have done nothing but
slip the schedule on nuclear waste. First it was to have this waste
removed by the year 2003, then 2005, then 2010, now 2015. With this
proposal that I have just mentioned, that is in draft form, they are
proposing it go back to 2010. Maybe that is progress; I don't know.
Through it all, the nuclear ratepayers have paid the bill, but we are
not through with the cost.
As I have indicated previously, the U.S. Court of Appeals has ruled
the Department of Energy had an obligation to take possession of the
waste in 1998, whether or not a repository was ready. The court ordered
the Department of Energy to pay contractual remedies. This is a pretty
big hit on the Federal Government and, hence, the taxpayer, Mr.
President.
Estimates of damages range as high as $40, $50, $60--up to $80
billion. How do the damages break down? Here they are: the cost of
storage of spent nuclear fuel, $19.6 billion; return of nuclear waste
fees, $8.5 billion; interest on nuclear waste fees, $15 to $27.8
billion; consequential damages for shutdown of 25 percent of nuclear
plants due to insufficient storage--these are power replacement costs--
$24 billion.
That is a pretty disastrous scenario for the consumers. It would add,
if you will, the high cost of replacement power if these reactors go
down as a consequence of not being able to basically remove their
waste. There is loss of emissions, a free source of electric energy if
the nuclear plants are forced to close. And again, I would remind you
that 22 percent of our total electric power is generated from nuclear
energy.
These costs, these ``dangerous ends'' can be fixed. It is really time
for the administration to stop trying out bats, if you will, and step
up to the plate on its obligation. So today I once again, along with
Senator Craig, and a number of my colleagues, Senator Grams, are
introducing the Nuclear Waste Policy Act to solve our immediate
liability problems by establishing an interim nuclear waste facility at
the Nevada test site.
Why the Nevada test site? Over the last 50 years, we have tested
nuclear bombs, nuclear weapons in that area numerous times. As a
consequence, it appears, and was selected, to be the best site for a
permanent repository.
What we are proposing, by this legislation, is to move this waste out
and put it at site, but have it retrievable so when the permanent
repository is ready it can be placed there. In the meantime, we will
remove the waste from some 70 sites around the country.
In addition, this measure improves the process towards a permanent
nuclear waste repository by making sure that funding is adequate and
that the process to reach that goal is sound and viable?
While my committee will examine the proposal put forth by the
Secretary, there is some circular reasoning inherent in it.
One, the administration's arguments to date have been that building
an interim storage facility would divert funds from the study of the
proposed permanent repository. But the Secretary's proposal for
continued onsite storage would do just that. It would redirect consumer
funds to pay for continued onsite storage.
Do we really want this nuclear waste piling up at 71 sites around the
Nation rather than one? That is the critical question, Mr. President.
Here is the proposed site for the nuclear waste--out in the Nevada
desert. And the Nevada test site was previously used for more than 800
nuclear weapons tests. There it is.
There is some conversation that suggests, What if the current
repository at Yucca Mountain does not prove to be licensable, what will
you do with it then? Obviously, we will have to address that. But in
the meantime, we would concentrate it out in this area in retrievable
casks that would allow us to move it someplace for permanent storage.
Or there is the technology that is developing on reprocessing that the
Japanese and the French have proceeded with, which is to recover the
plutonium out of the spent nuclear fuel and put it back in the
reactors. That is another alternative.
So the alternative to leaving it at the 71 sites, vis-a-vis putting
it out in one place where we have had over 800 nuclear tests over the
past 50 years, obviously is a logical and reasonable progression to
remove this from the various sites around the United States.
Finally, Mr. President, the time for delay is long past. We have had
enough delay now. In the last Congress, we had a vote on this matter.
It was overwhelmingly bipartisan. There were 65 Members of the U.S.
Senate that voted yes--that voted yes--to put the waste in a temporary
retrievable repository at Yucca Mountain. In the House there were 307
Members that voted yes.
Obviously the time is now at hand to move this bill out, to meet the
responsibility that we have committed to with the ratepayers over these
last 18 years and take that $14 billion and move this waste out to the
Nevada test site once and for all until the permanent repository is
licensed.
So, Mr. President, I encourage my colleagues to reflect on the merits
of this bill--the debate went on in the last Congress--and recognize
that we simply cannot put our heads in the sand and ignore this. This
is a contract commitment. You have to recognize the sanctity of that
contract and the recognition of 22 percent of our power is from nuclear
energy, and if we are to allow this industry to strangle on its high-
level waste, we are doing a great disservice and simply are going to
have to come up with power sources from other generating capabilities
that do not offer the air quality that is available by nuclear energy.
As we look at global warming and greenhouse gases and various
legislative proposals by the administration, the role of nuclear energy
is noticeably absent. I think that is unfortunate as we recognize that
nuclear energy contributes to reducing greenhouse gases and hence
global warming.
Mr. GRAMS. Mr. President, I rise today to join my colleagues in
introducing the Nuclear Waste Policy Act amendments of 1999.
First, I would like to thank Senators Murkowski and Craig for once
again authoring this legislation and for their combined efforts in the
Energy and Natural Resources Committee on matters related to nuclear
waste storage.
As we all know, Washington's involvement in nuclear power isn't new.
Since the 1950's ``Atoms for Peace'' program, the federal government
has promoted nuclear energy, in part, by promising to remove
radioactive waste from power plants. Congress decisively committed the
federal government to take and dispose of civilian radioactive waste
beginning in 1998 through the Nuclear Waste Policy Act of 1982, and its
amendments in 1987. These acts established the DOE Office of Civilian
Radioactive Waste Management to conduct the program, selected Yucca
[[Page S2657]]
Mountain, Nevada as the site to assess for the permanent disposal
facility, and established fees of a tenth of a cent per kilowatt hour
on nuclear-generated electricity, and provided that these fees would be
deposited in the Nuclear Waste Fund. Furthermore, it authorized
appropriations from this fund for a number of activities, including
development of a nuclear waste repository.
Eventually, publication of the standard contract addressed how
radioactive waste would be taken, stored, and disposed of. The DOE then
signed individual contracts with all civilian nuclear utilities
promising to take and dispose of civilian high-level waste beginning
January 31, 1998. Other administrative proceedings, such as the Nuclear
Regulatory Commission's Waste Confidence Rule, told the American public
that they should literally bank on the federal government's promise.
Because of these promises and measures taken by the federal
government, ratepayers have paid over $15 billion, including interest,
into the Nuclear Waste Fund. Today, these payments continue, exceeding
$1 billion annually, or $70,000 for every hour of every day of the
year.
Up until recently, however, the administration has acted as if there
is no problem. They have maintained a hands-off approach to the issue
and when they have engaged Congress on nuclear waste storage, it has
only been to issue a veto threat against this legislation.
As a member of the Senate Energy and Natural Resources committee last
year, I had the opportunity to question Secretary Richardson on nuclear
waste issues during his Senate confirmation hearings. Unfortunately,
his answers to my questions were generally incomplete and contained
little substantive discussion on the very real problems facing our
nation's utilities, states, and ratepayers.
Mr. Richardson did, however, write some interesting things about
nuclear power in his responses. Let me share with you a few of those
responses. They read:
Nuclear power is a proven means of generating electricity.
When managed well, it is also a safe means of generating
electricity.
* * * * *
It is my understanding that spent nuclear fuel has been
safely transported in the United States in compliance with
the regulatory requirements set forth by the Nuclear
Regulatory Commission and the Department of Transportation.
* * * * *
The widely publicized shipment last week of spent fuel from
California to Idaho is proof that transportation can be done
safely. The safety record of nuclear shipments would be among
the issues I would focus on as Secretary of Energy.
I asked Mr. Richardson to tell me who would pay the billions of
dollars in damages some say the DOE will owe utilities as a result of
DOE failure to remove spent nuclear fuel by January 31, 1998. After
writing about the DOE's beliefs on their level of liability, he wrote:
``I will give this issue priority attention once I am confirmed as
Secretary of Energy.''
I asked Mr. Richardson if he felt the taxpayers had been treated
fairly. Again, after telling me about the history of the Department's
actions to avoid its responsibilities, he wrote: ``I share your
interest in resolving these issues and I will continue to pursue this
once I am confirmed.''
Now, Mr. President, let's look at how then-nominee Federico Pena
responded to my question regarding the responsibility of the DOE to
begin removing spent nuclear fuel from my state. He said in testimony
before the Energy and Natural Resources Committee:
. . . we will work with the Committee to address these
issues within the context of the President's statement last
year. So we've got a very difficult issue. I am prepared to
address it. I will do that as best as I can, understanding
the complexities involved. But they are all very legitimate
questions and I look forward to working with you and others
to try to find a solution.
Does that sound familiar? I suspect Secretary O'Leary had something
equally vague to say about nuclear waste storage as well. Secretary
Pena, I believe, said it best when he stated, ``I will do that as best
as I can, understanding the complexities involved.'' Those
complexities, Mr. President, are not that complex at all. Quite simply,
the President of the United States, despite the will of 307 Members of
the House of Representatives and 65 Senators, last year refused to keep
the DOE's promise.
Now, Secretary Richardson has come before the Senate and offered a
``new'' approach to the nuclear waste storage crisis. He believes we
should leave the waste at sites across the country and merely transfer
title, or ownership, to the federal government. The federal government
would then be responsible for the costs associated with maintaining
each of the 73 interim storage sites in 34 states, including the
Prairie Island facility in Minnesota. To pay for this, Secretary
Richardson is suggesting we raid the Nuclear Waste Fund, which was
created to pay for the removal of that same spent nuclear fuel.
While I am glad to see the Administration is finally engaged in the
nuclear waste debate and that Secretary Richardson has finally been
allowed to address the issue before the U.S. Senate, his proposal is a
``year late and several billion dollars short.'' It does nothing to
actually move the waste out of our states and into an interim storage
facility. It is unclear whether his proposal would do anything to
prevent the premature shutdown of nuclear facilities in states like
Minnesota. And the one thing we know it will do, is take money from the
Nuclear Waste Fund that was supposed to pay for the removal of spent
nuclear fuel, not the indefinite continuance of a failed approach to
nuclear waste management.
Mr. President, I want to be very clear that I am sincere in these
complaints. My concern is for the ratepayers of my state and ratepayers
across the country. They have poured billions of dollars into the
Nuclear Waste Fund expecting the DOE to take this waste. They have paid
countless more millions paying for on-site nuclear waste storage.
Effective January 31, 1998, they began paying for both of these costs
simultaneously, even though no waste has been moved.
When the DOE is forced to pay damages to utilities across the nation,
the ratepayers and taxpayers will again pay for the follies created by
the DOE. Some estimate the costs of damages to be $80 to $100 billion
or more. The ratepayers will also have to pay the price of building new
gas or coal-fired plants when nuclear plants must shut down. And, if
the Administration gets its way, my constituents will pay again when
the Kyoto Protocol takes effect in 2008--exactly the same time
Minnesota will be losing 20 percent of its electricity from clean
nuclear power and replacing it with fossil fuels.
That is why we must move forward, pass the legislation introduced
today, and send it to the President for his signature. If he refuses to
sign the bill, then I believe we will be able to find those last two
votes we need to override his veto and remove the cloud hanging over
our nation's ratepayers. There is no scientific or technical reason why
we should not move this bill forward and pass it into law.
The administration has admitted nuclear waste can be transported
safely. They have admitted they neglected their responsibility. They
have admitted nuclear power is a proven, safe means of generating
electricity. And they have admitted there is a general consensus that
centralized interim storage is scientifically and technically possible
and can be done safely. If you add all of these points together and
hold them up against this Administration's lack of action, you can only
come to one conclusion: politics has indeed won out over policy and
science.
Mr. President, I am proud to once again support these amendments to
the Nuclear Waste Policy Act and urge my colleagues to move this bill
quickly through committee and onto the Senate floor where it will once
again be approved by an overwhelming majority.
______
By Mr. MURKOWSKI:
S. 609. A bill to amend the Safe and Drug-Free Schools and
Communities Act of 1994 to prevent the abuse of inhalants through
programs under the Act, and for other purposes; read the first time.
the safe and drug-free schools and communities act amendment
Mr. MURKOWSKI. Mr. President, I rise today to introduce a bill that
will help fight a silent epidemic among America's youth. This epidemic
can leave young people permanently brain damaged, and in some cases
even dead. It is called inhalant abuse. An awful lot of attention goes
to substance abuse--alcohol, drugs--but very little attention is being
given to inhalant abuse. It seems to be the silent killer.
[[Page S2658]]
I ask that the bill be introduced pursuant to Senate rule 14 and be
placed immediately on the Calendar.
My bill amends the Safe and Drug-Free Schools and Communities Act of
1994 to include inhalant abuse among the act's definition of ``abused
substances,'' thereby allowing schools the option to educate students
about the horrors of inhalant abuse.
What exactly are inhalants? What are we talking about? Inhalants are
the intentional breathing of gas or vapors for the purpose of getting a
high. Over 1,400 common products can be abused--lighter fluid,
pressurized whipped cream, hair spray; gasoline is often used in my
rural State of Alaska. These products are inexpensive, they are easily
obtained, and, most of all, they are legal. One inhalant abuse
counselor told me, ``If it smells like a chemical, it can be abused.''
It is a silent epidemic because few adults appreciate the severity of
the problem or how often it occurs. It is estimated one in five
students have tried inhalants by the time they reach the eighth grade.
The use of inhalants by children has nearly doubled in the last 10
years. Inhalants are the third most abused substance among teenagers,
behind alcohol and tobacco.
Inhalants are deadly. Inhalant vapors react with fatty tissues of the
brain and literally dissolve those tissues. A one-time use of inhalants
can cause instant and permanent brain damage, heart failure, kidney
failure, liver failure, or death. The user can also suffer instant
heart failure. This is known as sudden sniffing death syndrome. This
means an abuser can die on the very first time he or she tries it or
the 10th time or the 100th time that an individual sees fit to use an
inhalant. In fact, according to a recent study by the National Native
Health Consortium, ``inhaling has a higher risk of `instant death' than
any other abused substance.'' Think of that: Inhalants have a higher
risk of instant death, the first time, than any other abused substance.
That is what happened last year to Theresa, an 18-year-old who lived
in a rural western Alaska village. Last year Theresa was inhaling
gasoline; shortly thereafter, her heart stopped. She was found outside
in the near-zero temperature. Theresa was the youngest of five children
and just a month shy of graduation. She was flown to the Fairbanks
Memorial Hospital where she was pronounced dead on arrival.
Earlier this year in Pennsylvania, a teenaged driver with four
teenaged passengers lost control of her car in broad daylight. The car
hit a tree with such impact that all the passengers were killed. High
levels of a chemical found in computer keyboard cleaners--think about
this, computer keyboard cleaners--were found in the young driver's
body. The medical examiner report cited impairment due to inhalant
abuse as the cause of that crash.
Mr. Haviland, the principal of the school that the five girls
attended, said the teacher never suspected that the students were
involved with inhalants. That is why this bill is so important. The
most effective prevention against inhalant abuse is education. It is
preventable. But educators must first know about inhalants before they
can teach our kids of their dangers.
My bill will amend section 4131 of the Safe and Drug-Free Schools and
Communities Act to allow States and communities the option to develop
programs on inhalant abuse. Under my amendment, the principals,
teachers, and counselors will be able to learn about inhalants and will
have the option to develop educational programs to teach about inhalant
abuse.
There is no cost associated with this legislation. This bill makes
fiscal sense. A 1993 study by the Alaska Indian Health Service revealed
that a 19-year-old chronic inhalant abuser could have an average
lifetime cost of up to $1.4 million. These are the costs of chronic
medical care, substance abuse treatment, rehabilitation treatment, and
social services. The costs go on and on. We can save those costs if we
just prevent this type of abuse.
The goal of the Safe and Drug-Free Schools and Communities Act is to
save the lives of young people, but currently only illegal drugs,
alcohol, and tobacco are covered under the definitions of this act.
This bill will help us solve the problem and save the lives of our
youth. We support this legislation.
I ask unanimous consent the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 609
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DEFINITIONS.
Section 4131 of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7141) is amended by adding
at the end the following:
``(7) Abuse.--The term `abuse', used with respect to an
inhalant, means the intentional breathing of gas or vapors
from the inhalant for the purpose of achieving an altered
state of consciousness.
``(8) Drug.--The term `drug' includes a substance that is
an inhalant, whether or not possession or consumption of the
substance is legal.
``(9) Inhalant.--The term `inhalant' means a product that--
``(A) may be a legal, commonly available product; and
``(B) has a useful purpose but can be abused, such as spray
paint, glue, gasoline, correction fluid, furniture polish, a
felt tip marker, pressurized whipped cream, an air freshener,
butane, or cooking spray.
``(10) Use.--The term `use', used with respect to an
inhalant, means abuse of the inhalant.''.
SEC. 2. FINDINGS.
Section 4002 of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7102) is amended--
(1) in paragraph (2), by inserting ``, and the abuse of
inhalants,'' after ``other drugs'';
(2) in paragraph (5), by striking ``and the illegal use of
alcohol and drugs'' and inserting ``, the illegal use of
alcohol and drugs, and the abuse of inhalants'';
(3) in paragraph (7), by striking ``and tobacco'' each
place it appears and inserting ``, tobacco, and inhalants'';
(4) in paragraph (9), by striking ``and illegal drug use''
and inserting ``, illegal drug use, and inhalant abuse''; and
(5) by adding at the end the following:
``(11)(A) The number of children using inhalants has
doubled during the 10-year period preceding 1999. Inhalants
are the third most abused class of substances by children age
12 through 14 in the United States, behind alcohol and
tobacco. One of 5 students in the United States has tried
inhalants by the time the student has reached the 8th grade.
``(B) Inhalant vapors react with fatty tissues in the
brain, literally dissolving the tissues. A single use of
inhalants can cause instant and permanent brain, heart,
kidney, liver, and other organ damage. The user of an
inhalant can suffer from Sudden Sniffing Death Syndrome,
which can cause a user to die the first, tenth, or hundredth
time the user uses an inhalant.
``(C) Because inhalants are legal, education on the dangers
of inhalant abuse is the most effective method of preventing
the abuse of inhalants.''.
SEC. 3. PURPOSE.
Section 4003 of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7103) is amended, in the
matter preceding paragraph (1), by inserting ``and abuse of
inhalants'' after ``and drugs''.
SEC. 4. GOVERNOR'S PROGRAMS.
Section 4114(c)(2) of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7114(c)(2)) is amended by
inserting ``(including inhalant abuse education)'' after
``drug and violence prevention''.
SEC. 5. DRUG AND VIOLENCE PREVENTION PROGRAMS.
Section 4116 of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7116) is amended--
(1) in subsection (a)(1)(A), by inserting ``, and the abuse
of inhalants,'' after ``illegal drugs''; and
(2) in subsection (b)--
(A) in paragraph (1)--
(i) by inserting ``and the abuse of inhalants'' after ``use
of illegal drugs''; and
(ii) by inserting ``and abuse inhalants'' after ``use
illegal drugs''; and
(B) in paragraph (2)--
(i) in the matter preceding subparagraph (A), by inserting
``(including age appropriate inhalant abuse prevention
programs for all students, from the preschool level through
grade 12)'' after ``drug prevention''; and
(ii) in subparagraph (C), by inserting ``and inhalant
abuse'' after ``drug use''.
SEC. 6. FEDERAL ACTIVITIES.
Section 4121(a) of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7131(a)) is amended, in
the first sentence, by striking ``illegal use of drugs'' and
inserting ``illegal use of drugs, the abuse of inhalants,''.
SEC. 7. MATERIALS.
Section 4132(a) of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7142(a)) is amended by
striking ``illegal use of alcohol and other drugs'' and
inserting ``illegal use of alcohol and other drugs and the
abuse of inhalants''.
SEC. 8. QUALITY RATING.
Section 4134(b)(1) of the Safe and Drug-Free Schools and
Communities Act of 1994 (20 U.S.C. 7144(b)(1)) is amended by
inserting ``, and the abuse of inhalants,'' after
``tobacco''.
______
By Mr. ENZI (for himself and Mr. Thomas):
[[Page S2659]]
S. 610. A bill to direct the Secretary of the Interior to convey
certain land under the jurisdiction of the Bureau of Land Management in
Washakie County and Big Horn County, Wyoming, to the Westside
Irrigation District, Wyoming, and for other purposes; to the Committee
on Energy and Natural Resources.
WESTSIDE IRRIGATION DISTRICT LEGISLATION
Mr. ENZI. Mr. President, today I am introducing legislation
with my colleague from Wyoming, Senator Thomas, that would authorize a
land exchange project called the Westside Irrigation District in
Washakie and Big Horn Counties, Wyoming. This project has been many
years in the making and is very important to many people in our state.
It will provide a strong foundation for economic development in the
area and it will provide a great opportunity for the public to obtain
parcels of land that are now in private hands.
The Westside District is a win-win project for everyone. It takes
public land that is of low value for wildlife or aesthetic enjoyment
and sells it to a non-profit district for conveyance into agricultural
use. The District will pay fair market value for the surface land--not
the mineral rights, which would remain federal property--and the Bureau
of Land Management can then take the money and purchase other property
that has a much higher value for public recreation, public access, fish
and wildlife habitat, or cultural resources. The Bureau presently has
very limited funds for this purpose and they could make good use of the
money in the Worland District, which has a very complex land ownership
mix.
The description of the project is nearly 37,000 acres of shelf land
near the Big Horn River. The proposal would make use of unallocated
water rights to irrigate approximately 20,000 acres, leaving the
remainder in conservation buffer zones, rights of way and wildlife
habitat. The local economy, which has been hit very hard in recent
years, would benefit from additional production of barley, corn, beans,
hay and sugar beets. The anticipated benefit of a fully implemented
project could be as many as 216 new jobs in the community. And this is
in a county that only has about 4,500 working people--so there is a
real positive impact expected.
The district has been working diligently to address public questions
that had been expressed early in the process. Some of these related to
water quality, wildlife habitat, access, and land values. The Wyoming
Game and Fish, the Bureau of Land Management, and the Westside District
have been working out plans to mitigate each of the project's impacts.
For example, the District will make use of overhead sprinkler systems
to prevent runoff and will maintain vegetative buffer zones to capture
any possible runoff due to natural events, such as snow melt. The
District only plans to irrigate 20,000 acres of the total area, so the
remaining 46 percent of the land will remain in native cover to provide
habitat for wildlife and antelope winter range. The District will also
help support additional staff with the Wyoming Game and Fish for
mitigation assistance. And all existing rights of way and public access
to surrounding public lands will be preserved.
Mr. President, this bill is necessary because the BLM does not have
the statutory authority to complete a sale of lands. Although they
could conduct an exchange, the sheer size of this project prevented
creating a reasonable exchange portfolio of other lands. This could
have been accomplished with existing authority, but was prohibitively
difficult to achieve in a single process. This legislation enables the
BLM to take the money now, and then purchase various private lands as
they become available--lands that are more suitable to our public
objectives, such as wildlife and resource conservation and public
enjoyment.
This bill should be referred to the Senate Energy Committee and it is
my hope that a hearing could be held and a report generated with enough
time to complete action on the legislation this year. The people in
Worland, Wyoming, have worked very hard to make this project happen. I
would urge my colleagues to review the bill and support it.
Mr. THOMAS. Mr. President, it gives me great pleasure to join
my colleague from Wyoming, Senator Enzi, in introducing legislation to
convey certain BLM lands to the Westside Irrigation District. This
measure is a culmination of years of hard work, by folks affected, to
reach a solution through perseverance and much negotiation. It is a
compromise--interested parties working together for a common goal, and
it has been 30 years in the making. I am pleased today to be part of
setting forth what is needed to turn a goal for many Wyoming residents
into a reality.
This legislation directs the Secretary of the Interior to convey
roughly 37,000 acres of land under the jurisdiction of the Bureau of
Land Management in Washakie County and Big Horn County, Wyoming, to the
Westside Irrigation District. In turn, Westside Irrigation District
will irrigate these lands and sell them as farmland parcels. Proceeds
raised from the land sales will be given to the Secretary of the
Interior for the acquisition of land in the Worland District of the
Bureau of Land Management, for the purpose of benefiting public
recreation, increasing public access, enhancing fish and wildlife
habitat and improving cultural resources.
In recent years, expanded residential development in Washakie and Big
Horn Counties has resulted in key loss to the economy--farmland. What
this legislation proposes to do is afford communities an opportunity to
retain their economic vitality while protecting cultural and natural
resources. It promises to benefit both the business community and
preserve the environment.
Benefits attained from this legislation will be fruitful for all
parties. Agricultural producers have the rare chance to increase
private land holdings in a largely public lands State. Wildlife
interests are given the resources necessary to enhance critical habitat
areas. In addition, the creation of 200 new jobs and an estimated
financial impact of $16.8 million annually will spur tremendous
economic development in these Wyoming counties.
Mr. President, let me once again congratulate all of the folks who
have worked so hard on this measure--it is a job well done. I hope the
Senate will give this bill every consideration and I look forward to
taking action on it in the near future.
______
By Mr. CAMPBELL:
S. 611. A bill to provide for administrative procedures to extend
Federal recognition to certain Indian groups, and for other purposes;
to the Committee on Indian Affairs.
Indian Federal Recognition Administrative Procedures Act
Mr. CAMPBELL. Mr. President, just as it recognizes foreign
governments, the United States is called upon to consider extending its
recognition to Indian tribal governments here at home.
From the first days of the republic, the Congress has acted to
recognize the unique legal and political relationship the United States
has with the Indian tribes. Reforming the process of recognition is the
goal of the legislation I am introducing today.
Just as the United States at times refuses to recognize foreign
governments, there are and always have been tribal governments which
have not been recognized by the Federal government. This lack of
recognition does not alter the ``Indian-ness'' of a tribe's members;
rather it merely means that there is no formal political relationship
between that tribal group and the United States.
Federal recognition is critical to tribal groups because it triggers
eligibility for services and benefits provided by the United States
because of their status as members of federally recognized Indian
tribes.
I want to be clear--I am not advocating for the approval of every
petition for recognition, and I am not proposing that the petitions
receive a limited or cursory review. I am concerned with the viability
of the current recognition process and am interested in seeing
fairness, promptness, and finality brought into that process while
providing basic assurances to already-recognized tribes regarding their
inherent rights.
Federal recognition can be accomplished in two ways: through the
enactment of federal legislation; or through the administrative process
that occurs, or more accurately does not occur, within the Bureau of
Indian Affairs (BIA).
[[Page S2660]]
Over the years, uncertainty has developed over just how or when the
Bureau would process tribal group applications for recognition. In
short, the current process is not getting the job done.
The process in the Department of the Interior is time consuming and
costly, although it has improved from its original state. Some tribal
groups allege that the Department's process leads to unfair and
unfounded results. It has frequently been hindered by a lack of staff
and resources needed to fairly and promptly review all petitions. At
the same time, the Congress extends recognition to tribes with little
or no reference to the legal standards and criteria employed by the
Department.
The amount of time some tribal groups have had to wait before their
petitions are acted on in some cases is outrageous. Sometimes these
applications for recognition are pending literally for decades. The
concerns expressed go beyond the delays I mentioned and involve the
viability of the current recognition process itself.
As with any decision-making body, fairness and timeliness are the
keys to maintaining a credible system which holds the confidence of
affected parties. I believe that it is in the interests of all parties
to have a clear deadline for the completion of the recognition process.
In 1978, the Department of the Interior promulgated regulations to
establish criteria and procedures for the recognition of Indian tribes
by the Secretary.
Since that time to date, tribal groups have filed hundreds of
petitions for review. Of those, 42 have been resolved, and 179 are new
petitioners; During this same time, 89 expressed letters of intent to
petition, and 5 required legislative authority to proceed which are now
deemed inactive.
The remainder are in various stages of consideration by the
Department either ready for active status or are already placed on
active status. During this same time to date, the Congress has
recognized 7 other tribal groups through legislation.
In the last twenty years, the Committee on Indian Affairs held
oversight hearings on the Federal recognition process. At each of those
hearings the record clearly showed that the process is not working
properly. At a Committee on Indian Affairs hearing in 1995, the Bureau
testified that at the current rate of review and consideration, it
would take several decades to eliminate the entire backlog of tribal
petitions. The record from numerous previous hearings reveals a clear
need for the Congress to address the problems affecting the recognition
process.
The bill I am introducing today will go a long way toward resolving
the problems which have plagued both the Department of the Interior and
tribal petitioners over the years.
This bill, the Indian Federal Recognition Administrative Procedures
Act of 1999, provides the required clarification and changes that will
help tribal petitioners and the United States in providing fair and
orderly administrative procedures to extend Federal recognition to
eligible Indian groups. The key element of this bill is that it removes
the recognition process from the BIA and places it in a temporary and
independent ``Commission on Indian Recognition.''
This bill provides that the Commission will be an independent agency,
composed of three members appointed by the President, and authorized to
hold hearings, take testimony and reach final determinations on
petitions for recognition.
The bill provides strict but realistic time-lines to guide the
Commission in the review and decision making process. Under the
existing process in the Bureau of Indian Affairs, some petitioners have
waited ten years or more for even a cursory review of their petition.
The bill I am introducing today requires the Commission to set a date
for a preliminary hearing on a petition not later than 60 days after
the filing of a documented petition. Not later than 30 days after the
conclusion of a preliminary hearing, the Commission would be required
to either decide to extend federal acknowledgment to the petitioner or
to require the petitioner to proceed to an adjudicatory hearing.
The current recognition process becomes so expensive that the
consideration of petitions are stretched out over a number of years
because there have been no real deadlines for these decisions.
This bill will allow for a cost-effective process for the BIA and the
petitioners, will provide definite time-lines for the administrative
recognition process, and ``sunsets'' the Commission in 12 years.
To ensure fairness, the bill provides for appeals of adverse
decisions to the federal district court here in the District of
Columbia.
To ensure promptness, the bill authorizes adequate funding for the
costs of processing petitions through the Commission.
The bill also provides finality for both the petitioners and the
Department by requiring all interested tribal groups to file their
petitions within 6 years after the date of enactment and requiring the
Commission to complete its work within 12 years from enactment.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record, and urge my colleagues to join me in enacting
this much-needed reform legislation.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 611
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Federal Recognition
Administrative Procedures Act of 1999''.
SEC. 2. PURPOSES.
The purposes of this Act are as follows:
(1) To establish an administrative procedure to extend
Federal recognition to certain Indian groups.
(2) To extend to Indian groups that are determined to be
Indian tribes the protection, services, and benefits
available from the Federal Government pursuant to the Federal
trust responsibility with respect to Indian tribes.
(3) To extend to Indian groups that are determined to be
Indian tribes the immunities and privileges available to
other federally acknowledged Indian tribes by virtue of their
status as Indian tribes with a government-to-government
relationship with the United States.
(4) To ensure that when the Federal Government extends
acknowledgment to an Indian tribe, the Federal Government
does so with a consistent legal, factual, and historical
basis.
(5) To establish a Commission on Indian Recognition to
review and act upon petitions submitted by Indian groups that
apply for Federal recognition.
(6) To provide clear and consistent standards of
administrative review of documented petitions for Federal
acknowledgment.
(7) To clarify evidentiary standards and expedite the
administrative review process by providing adequate resources
to process petitions.
(8) To remove the Federal acknowledgment process from the
Bureau of Indian Affairs and transfer the responsibility for
the process to an independent Commission on Indian
Recognition.
SEC. 3. DEFINITIONS.
In this Act:
(1) Acknowledged.--The term ``acknowledged'' means, with
respect to an Indian group, that the Commission on Indian
Recognition has made an acknowledgment, as defined in
paragraph (2), for that group.
(2) Acknowledgment.--The term ``acknowledgment'' means a
determination by the Commission on Indian Recognition that an
Indian group--
(A) constitutes an Indian tribe with a government-to-
government relationship with the United States; and
(B) with respect to which the members are recognized as
eligible for the special programs and services provided by
the United States to Indians because of their status as
Indians.
(3) Alaska native.--The term ``Alaska Native'' means an
individual who is an Alaskan Indian, Eskimo, or Aleut, or any
combination thereof.
(4) Autonomous.--
(A) In general.--The term ``autonomous'' means the exercise
of political influence or authority independent of the
control of any other Indian governing entity.
(B) Context of term.--With respect to a petitioner, that
term shall be understood in the context of the history,
geography, culture, and social organization of the
petitioner.
(5) Bureau.--The term ``Bureau'' means the Bureau of Indian
Affairs of the Department.
(6) Commission.--The term ``Commission'' means the
Commission on Indian Recognition established under section 4.
(7) Community.--
(A) In general.--The term ``community'' means any group of
people, living within a reasonable territorial that is able
to demonstrate that--
[[Page S2661]]
(i) consistent interactions and significant social
relationships exist within the membership; and
(ii) the members of that group are differentiated from and
identified as distinct from nonmembers.
(B) Context of term.--The term shall be understood in the
context of the history, culture, and social organization of
the group, taking into account the geography of the region in
which the group resides.
(8) Continuous or continuously.--With respect to a period
of history of a group, the term ``continuous'' or
``continuously'' means extending from the first sustained
contact with Euro-Americans throughout the history of the
group to the present substantially without interruption.
(9) Department.--The term ``Department'' means the
Department of the Interior.
(10) Documented petition.--The term ``documented petition''
means the detailed, factual exposition and arguments,
including all documentary evidence, necessary to demonstrate
that those arguments specifically address the mandatory
criteria established in section 5.
(11) Group.--The term ``group'' means an Indian group, as
defined in paragraph (13).
(12) Historically, historical, history.--The terms
``historically'', ``historical'', and ``history'' refer to
the period dating from the first sustained contact with Euro-
Americans.
(13) Indian group.--The term ``Indian group'' means any
Indian or Alaska Native band, pueblo, village or community
within the United States that the Secretary does not
acknowledge to be an Indian tribe.
(14) Indian tribe.--The term ``Indian tribe'' means any
Indian or Alaska Native tribe, band, pueblo, village, or
community within the United States that--
(A) the Secretary has acknowledged as an Indian tribe as of
the date of enactment of this Act, or acknowledges to be an
Indian tribe pursuant to the procedures applicable to certain
petitions under active consideration at the time of the
transfer of petitions to the Commission under section
5(a)(3); or
(B) the Commission acknowledges as an Indian tribe under
this Act.
(15) Indigenous.--With respect to a petitioner, the term
``indigenous'' means native to the United States, in that at
least part of the traditional territory of the petitioner at
the time of first sustained contact with Euro-Americans
extended into the United States.
(16) Letter of intent.--The term ``letter of intent'' means
an undocumented letter or resolution that--
(A) is dated and signed by the governing body of an Indian
group;
(B) is submitted to the Commission; and
(C) indicates the intent of the Indian group to submit a
petition for Federal acknowledgment.
(17) Member of an indian group.--The term ``member of an
Indian group'' means an individual who--
(A) is recognized by an Indian group as meeting the
membership criteria of the Indian group; and
(B) consents in writing to being listed as a member of that
group.
(18) Member of an indian tribe.--The term ``member of an
Indian tribe'' means an individual who--
(A)(i) meets the membership requirements of the tribe as
set forth in its governing document; or
(ii) in the absence of a governing document which sets out
those requirements, has been recognized as a member
collectively by those persons comprising the tribal governing
body; and
(B)(i) has consistently maintained tribal relations with
the tribe; or
(ii) is listed on the tribal membership rolls as a member,
if those rolls are kept.
(19) Petition.--The term ``petition'' means a petition for
acknowledgment submitted or transferred to the Commission
pursuant to section 5.
(20) Petitioner.--The term ``petitioner'' means any group
that submits a letter of intent to the Commission requesting
acknowledgment.
(21) Political influence or authority.--
(A) In general.--The term ``political influence or
authority'' means a tribal council, leadership, internal
process, or other mechanism that a group has used as a means
of--
(i) influencing or controlling the behavior of its members
in a significant manner;
(ii) making decisions for the group which substantially
affect its members; or
(iii) representing the group in dealing with nonmembers in
matters of consequence to the group.
(B) Context of term.--The term shall be understood in the
context of the history, culture, and social organization of
the group.
(22) Previous federal acknowledgment.--The term ``previous
Federal acknowledgment'' means any action by the Federal
Government, the character of which--
(A) is clearly premised on identification of a tribal
political entity; and
(B) clearly indicates the recognition of a government-to-
government relationship between that entity and the Federal
Government.
(23) Restoration.--The term ``restoration'' means the
reextension of acknowledgment to any previously acknowledged
tribe with respect to which the acknowledged status may have
been abrogated or diminished by reason of legislation enacted
by Congress expressly terminating that status.
(24) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(25) Sustained contact.--The term ``sustained contact''
means the period of earliest sustained Euro-American
settlement or governmental presence in the local area in
which the tribe or tribes from which the petitioner claims
descent was located historically.
(26) Treaty.--The term ``treaty'' means any treaty--
(A) negotiated and ratified by the United States on or
before March 3, 1871, with, or on behalf of, any Indian group
or tribe;
(B) made by any government with, or on behalf of, any
Indian group or tribe, from which the Federal Government
subsequently acquired territory by purchase, conquest,
annexation, or cession; or
(C) negotiated by the United States with, or on behalf of,
any Indian group in California, whether or not the treaty was
subsequently ratified.
(27) Tribe.--The term ``tribe'' means an Indian tribe.
(28) Tribal relations.--The term ``tribal relations'' means
participation by an individual in a political and social
relationship with an Indian tribe.
(29) Tribal roll.--The term ``tribal roll'' means a list
exclusively of those individuals who--
(A)(i) have been determined by the tribe to meet the
membership requirements of the tribe, as set forth in the
governing document of the tribe; or
(ii) in the absence of a governing document that sets forth
those requirements, have been recognized as members by the
governing body of the tribe; and
(B) have affirmatively demonstrated consent to being listed
as members of the tribe.
(30) United states.--The term ``United States'' means the
48 contiguous States, and the States of Alaska and Hawaii.
The term does not include territories or possessions of the
United States.
SEC. 4. COMMISSION ON INDIAN RECOGNITION.
(a) Establishment.--There is established, as an independent
commission, the Commission on Indian Recognition. The
Commission shall be an independent establishment, as defined
in section 104 of title 5, United States Code.
(b) Membership.--
(1) In general.--
(A) Members.--The Commission shall consist of 3 members
appointed by the President, by and with the advice and
consent of the Senate.
(B) Individuals to be considered for membership.--In making
appointments to the Commission, the President shall give
careful consideration to--
(i) recommendations received from Indian tribes; and
(ii) individuals who have a background in Indian law or
policy, anthropology, genealogy, or history.
(2) Political affiliation.--Not more than 2 members of the
Commission may be members of the same political party.
(3) Terms.--
(A) In general.--Except as provided in subparagraph (B),
each member of the Commission shall be appointed for a term
of 4 years.
(B) Initial appointments.--As designated by the President
at the time of appointment, of the members initially
appointed under this subsection--
(i) 1 member shall be appointed for a term of 2 years;
(ii) 1 member shall be appointed for a term of 3 years; and
(iii) 1 member shall be appointed for a term of 4 years.
(4) Vacancies.--Any vacancy in the Commission shall not
affect the powers of the Commission, but shall be filled in
the same manner in which the original appointment was made.
Any member appointed to fill a vacancy occurring before the
expiration of the term for which the predecessor of the
member was appointed shall be appointed only for the
remainder of that term. A member may serve after the
expiration of the term of that member until a successor has
taken office.
(5) Compensation.--
(A) In general.--Each member of the Commission shall
receive compensation at a rate equal to the daily equivalent
of the annual rate of basic pay prescribed for level V of the
Executive Schedule under section 5316 of title 5, United
States Code, for each day, including traveltime, that member
is engaged in the actual performance of duties authorized by
the Commission.
(B) Travel.--All members of the Commission shall be
reimbursed for travel and per diem in lieu of subsistence
expenses during the performance of duties of the Commission
while away from their homes or regular places of business, in
accordance with subchapter I of chapter 57 of title 5, United
States Code.
(6) Full-time employment.--Each member of the Commission
shall serve on the Commission as a full-time employee of the
Federal Government. No member of the Commission may, while
serving on the Commission, be otherwise employed as an
officer or employee of the Federal Government. Service by a
member who is an employee of the Federal Government at the
time of nomination as a member shall be without interruption
or loss of civil service status or privilege.
(7) Chairperson.--At the time appointments are made under
paragraph (1), the President shall designate a Chairperson of
[[Page S2662]]
the Commission (referred to in this section as the
``Chairperson'') from among the appointees.
(c) Meetings and Procedures.--
(1) In general.--The Commission shall hold its first
meeting not later than 30 days after the date on which all
members of the Commission have been appointed and confirmed
by the Senate.
(2) Quorum.--Two members of the Commission shall constitute
a quorum for the transaction of business.
(3) Rules.--The Commission may adopt such rules (consistent
with the provisions of this Act) as may be necessary to
establish the procedures of the Commission and to govern the
manner of operations, organization, and personnel of the
Commission.
(4) Principal office.--The principal office of the
Commission shall be in the District of Columbia.
(d) Duties.--The Commission shall carry out the duties
assigned to the Commission by this Act, and shall meet the
requirements imposed on the Commission by this Act.
(e) Powers and Authorities.--
(1) Powers and authorities of chairperson.--Subject to such
rules and regulations as may be adopted by the Commission,
the Chairperson may--
(A) appoint, terminate, and fix the compensation (without
regard to the provisions of title 5, United States Code,
governing appointments in the competitive service, and
without regard to the provisions of chapter 51 and subchapter
III of chapter 53 of that title, or of any other provision of
law, relating to the number, classification, and General
Schedule rates) of an Executive Director of the Commission
and of such other personnel as the Chairperson considers
advisable to assist in the performance of the duties of the
Commission, at a rate not to exceed a rate equal to the daily
equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of title
5, United States Code; and
(B) procure, as authorized by section 3109(b) of title 5,
United States Code, temporary and intermittent services to
the same extent as is authorized by law for agencies in the
executive branch, but at rates not to exceed the daily
equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of that
title.
(2) General powers and authorities of commission.--
(A) In general.--The Commission may hold such hearings and
sit and act at such times as the Commission considers to be
appropriate.
(B) Other authorities.--As the Commission may consider
advisable, the Commission may--
(i) take testimony;
(ii) have printing and binding done;
(iii) enter into contracts and other arrangements, subject
to the availability of funds;
(iv) make expenditures; and
(v) take other actions.
(C) Oaths and affirmations.--Any member of the Commission
may administer oaths or affirmations to witnesses appearing
before the Commission.
(3) Information.--
(A) In general.--The Commission may secure directly from
any officer, department, agency, establishment, or
instrumentality of the Federal Government such information as
the Commission may require to carry out this Act. Each such
officer, department, agency, establishment, or
instrumentality shall furnish, to the extent permitted by
law, such information, suggestions, estimates, and statistics
directly to the Commission, upon the request of the
Chairperson.
(B) Facilities, services, and details.--Upon the request of
the Chairperson, to assist the Commission in carrying out the
duties of the Commission under this section, the head of any
Federal department, agency, or instrumentality may--
(i) make any of the facilities and services of that
department, agency, or instrumentality available to the
Commission; and
(ii) detail any of the personnel of that department,
agency, or instrumentality to the Commission, on a
nonreimbursable basis.
(C) Mails.--The Commission may use the United States mails
in the same manner and under the same conditions as other
departments and agencies of the United States.
(f) Federal Advisory Committee Act.--The provisions of the
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the Commission.
(g) Termination of Commission.--The Commission shall
terminate on the date that is 12 years after the date of
enactment of this Act.
SEC. 5. PETITIONS FOR RECOGNITION.
(a) In General.--
(1) Petitions.--Subject to subsection (d) and except as
provided in paragraph (2), any Indian group may submit to the
Commission a petition requesting that the Commission
recognize an Indian group as an Indian tribe.
(2) Exclusion.--The following groups and entities shall not
be eligible to submit a petition for recognition by the
Commission under this Act:
(A) Certain entities that are eligible to receive services
from the bureau.--Indian tribes, organized bands, pueblos,
communities, and Alaska Native entities that are recognized
by the Secretary as of the date of enactment of this Act as
eligible to receive services from the Bureau.
(B) Certain splinter groups, political factions, and
communities.--Splinter groups, political factions,
communities, or groups of any character that separate from
the main body of an Indian tribe that, at the time of that
separation, is recognized as an Indian tribe by the
Secretary, unless the group, faction, or community is able to
establish clearly that the group, faction, or community has
functioned throughout history until the date of that petition
as an autonomous Indian tribal entity.
(C) Certain groups that have previously submitted
petitions.--Groups, or successors in interest of groups, that
before the date of enactment of this Act, have petitioned for
and been denied or refused recognition as an Indian tribe
under regulations prescribed by the Secretary.
(D) Indian groups subject to termination.--Any Indian group
whose relationship with the Federal Government was expressly
terminated by an Act of Congress.
(E) Parties to certain actions.--Any Indian group that--
(i) in any action in a United States court of competent
jurisdiction to which the group was a party, attempted to
establish its status as an Indian tribe or a successor in
interest to an Indian tribe that was a party to a treaty with
the United States;
(ii) was determined by that court--
(I) not to be an Indian tribe; or
(II) not to be a successor in interest to an Indian tribe
that was a party to a treaty with the United States; or
(iii) was the subject of findings of fact by that court
which, if made by the Commission, would show that the group
was incapable of establishing 1 or more of the criteria set
forth in this section.
(3) Transfer of petition.--
(A) In general.--Notwithstanding any other provision of
law, not later than 30 days after the date on which all of
the members of the Commission have been appointed and
confirmed by the Senate under section 4(b), the Secretary
shall transfer to the Commission all petitions pending before
the Department that--
(i) are not under active consideration by the Secretary at
the time of the transfer; and
(ii) request the Secretary, or the Federal Government, to
recognize or acknowledge an Indian group as an Indian tribe.
(B) Cessation of certain authorities of secretary.--
Notwithstanding any other provision of law, on the date of
the transfer under subparagraph (A), the Secretary and the
Department shall cease to have any authority to recognize or
acknowledge, on behalf of the Federal Government, any Indian
group as an Indian tribe, except for those groups under
active consideration at the time of the transfer whose
petitions have been retained by the Secretary pursuant to
subparagraph (A).
(C) Determination of order of submission of transferred
petitions.--Petitions transferred to the Commission under
subparagraph (A) shall, for purposes of this Act, be
considered as having been submitted to the Commission in the
same order as those petitions were submitted to the
Department.
(b) Petition Form and Content.--Except as provided in
subsection (c), any petition submitted under subsection (a)
by an Indian group shall be in any readable form that clearly
indicates that the petition is a petition requesting the
Commission to recognize the Indian group as an Indian tribe
and that contains detailed, specific evidence concerning each
of the following items:
(1) Statement of facts.--A statement of facts establishing
that the petitioner has been identified as an American Indian
entity on a substantially continuous basis since 1871.
Evidence that the character of the group as an Indian entity
has from time to time been denied shall not be considered to
be conclusive evidence that this criterion has not been met.
Evidence that the Commission may rely on in determining the
Indian identity of a group may include any 1 or more of the
following items:
(A) Identification of petitioner.--An identification of the
petitioner as an Indian entity by any department, agency, or
instrumentality of the Federal Government.
(B) Relationship of petitioner with state government.--A
relationship between the petitioner and any State government,
based on an identification of the petitioner as an Indian
entity.
(C) Relationship of petitioner with a political subdivision
of a state.--Dealings of the petitioner with a county or
political subdivision of a State in a relationship based on
the Indian identity of the petitioner.
(D) Identification of petitioner on the basis of certain
records.--An identification of the petitioner as an Indian
entity by records in a private or public archive, courthouse,
church, or school.
(E) Identification of petitioner by certain experts.--An
identification of the petitioner as an Indian entity by an
anthropologist, historian, or other scholar.
(F) Identification of petitioner by certain media.--An
identification of the petitioner as an Indian entity in a
newspaper, book, or similar medium.
(G) Identification of petitioner by another indian tribe or
organization.--An identification of the petitioner as an
Indian entity by another Indian tribe or by a national,
regional, or State Indian organization.
(H) Identification of petitioner by a foreign government or
international organization.--An identification of the
petitioner
[[Page S2663]]
as an Indian entity by a foreign government or an
international organization.
(I) Other evidence of identification.--Such other evidence
of identification as may be provided by a person or entity
other than the petitioner or a member of the membership of
the petitioner.
(2) Evidence of community.--
(A) In general.--A statement of facts establishing that a
predominant portion of the membership of the petitioner--
(i) comprises a community distinct from those communities
surrounding that community; and
(ii) has existed as a community from historical times to
the present.
(B) Evidence.--Evidence that the Commission may rely on in
determining that the petitioner meets the criterion described
in clauses (i) and (ii) of subparagraph (A) may include 1 or
more of the following items:
(i) Marriages.--Significant rates of marriage within the
group, or, as may be culturally required, patterned out-
marriages with other Indian populations.
(ii) Social relationships.--Significant social
relationships connecting individual members.
(iii) Social interaction.--Significant rates of informal
social interaction which exist broadly among the members of a
group.
(iv) Shared economic activity.--A significant degree of
shared or cooperative labor or other economic activity among
the membership.
(v) Discrimination or other social distinctions.--Evidence
of strong patterns of discrimination or other social
distinctions by nonmembers.
(vi) Shared ritual activity.--Shared sacred or secular
ritual activity encompassing most of the group.
(vii) Cultural patterns.--Cultural patterns that--
(I) are shared among a significant portion of the group
that are different from the cultural patterns of the non-
Indian populations with whom the group interacts;
(II) function as more than a symbolic identification of the
group as Indian; and
(III) may include language, kinship or religious
organizations, or religious beliefs and practices.
(viii) Collective indian identity.--The persistence of a
named, collective Indian identity continuously over a period
of more than 50 years, notwithstanding changes in name.
(ix) Historical political influence.--A demonstration of
historical political influence pursuant to the criterion set
forth in paragraph (3).
(C) Criteria for sufficient evidence.--The Commission shall
consider the petitioner to have provided sufficient evidence
of community at a given point in time if the petitioner has
provided evidence that demonstrates any one of the following:
(i) Residence of members.--More than 50 percent of the
members of the group of the petitioner reside in a particular
geographical area exclusively or almost exclusively composed
of members of the group, and the balance of the group
maintains consistent social interaction with some members of
the community.
(ii) Marriages.--Not less than 50 percent of the marriages
of the group are between members of the group.
(iii) Distinct cultural patterns.--Not less than 50 percent
of the members of the group maintain distinct cultural
patterns including language, kinship or religious
organizations, or religious beliefs or practices.
(iv) Community social institutions.--Distinct community
social institutions encompassing a substantial portion of the
members of the group, such as kinship organizations, formal
or informal economic cooperation, or religious organizations.
(v) Applicability of criteria.--The group has met the
criterion in paragraph (3) using evidence described in
paragraph (3)(B).
(3) Autonomous entity.--
(A) In general.--A statement of facts establishing that the
petitioner has maintained political influence or authority
over its members as an autonomous entity from historical
times until the time of the petition. The Commission may rely
on 1 or more of the following items in determining whether a
petitioner meets the criterion described in the preceding
sentence:
(i) Mobilization of members.--The group is capable of
mobilizing significant numbers of members and significant
resources from its members for group purposes.
(ii) Issues of personal importance.--Most of the membership
of the group consider issues acted upon or taken by group
leaders or governing bodies to be of personal importance.
(iii) Political process.--There is a widespread knowledge,
communication, and involvement in political processes by most
of the members of the group.
(iv) Level of application of criteria.--The group meets the
criterion described in paragraph (2) at more than a minimal
level.
(v) Intragroup conflicts.--There are intragroup conflicts
which show controversy over valued group goals, properties,
policies, processes, or decisions.
(B) Evidence of exercise of political influence or
authority.--The Commission shall consider that a petitioner
has provided sufficient evidence to demonstrate the exercise
of political influence or authority at a given point in time
by demonstrating that group leaders or other mechanisms exist
or have existed that accomplish the following:
(i) Allocation of group resources.--Allocate group
resources such as land, residence rights, or similar
resources on a consistent basis.
(ii) Settlement of disputes.--Settle disputes between
members or subgroups such as clans or moieties by mediation
or other means on a regular basis.
(iii) Influence on behavior of individual members.--Exert
strong influence on the behavior of individual members, such
as the establishment or maintenance of norms and the
enforcement of sanctions to direct or control behavior.
(iv) Economic subsistence activities.--Organize or
influence economic subsistence activities among the members,
including shared or cooperative labor.
(C) Temporality of sufficiency of evidence.--A group that
has met the requirements of paragraph (2)(C) at any point in
time shall be considered to have provided sufficient evidence
to meet the criterion described in subparagraph (A) at that
point in time.
(4) Governing document.--A copy of the then present
governing document of the petitioner that includes the
membership criteria of the petitioner. In the absence of a
written document, the petitioner shall be required to provide
a statement describing in full the membership criteria of the
petitioner and the then current governing procedures of the
petitioner.
(5) List of members.--
(A) In general.--A list of all then current members of the
petitioner, including the full name (and maiden name, if
any), date, and place of birth, and then current residential
address of each member, a copy of each available former list
of members based on the criteria defined by the petitioner,
and a statement describing the methods used in preparing
those lists.
(B) Requirements for membership.--In order for the
Commission to consider the members of the group to be members
of an Indian tribe for the purposes of the petition, that
membership shall be required to consist of established
descendancy from an Indian group that existed historically,
or from historical Indian groups that combined and functioned
as a single autonomous entity.
(C) Evidence of tribal membership.--Evidence of tribal
membership required by the Commission for a determination of
tribal membership shall include the following items:
(i) Descendancy rolls.--Descendancy rolls prepared by the
Secretary for the petitioner for purposes of distributing
claims money, providing allotments, or other purposes.
(ii) Certain official records.--Federal, State, or other
official records or evidence identifying then present members
of the petitioner, or ancestors of then present members of
the petitioner, as being descendants of a historic tribe or
historic tribes that combined and functioned as a single
autonomous political entity.
(iii) Enrollment records.--Church, school, and other
similar enrollment records identifying then present members
or ancestors of then present members as being descendants of
a historic tribe or historic tribes that combined and
functioned as a single autonomous political entity.
(iv) Affidavits of recognition.--Affidavits of recognition
by tribal elders, leaders, or the tribal governing body
identifying then present members or ancestors of then present
members as being descendants of 1 or more historic tribes
that combined and functioned as a single autonomous political
entity.
(v) Other records or evidence.--Other records or evidence
identifying then present members or ancestors of then present
members as being descendants of 1 or more historic tribes
that combined and functioned as a single autonomous political
entity.
(c) Exceptions.--A petition from an Indian group that is
able to demonstrate by a preponderance of the evidence that
the group was, or is the successor in interest to, a--
(1) party to a treaty or treaties;
(2) group acknowledged by any agency of the Federal
Government as eligible to participate under the Act of June
18, 1934 (commonly referred to as the ``Indian Reorganization
Act'') (48 Stat. 984 et seq., chapter 576; 25 U.S.C. 461 et
seq.);
(3) group for the benefit of which the United States took
into trust lands, or which the Federal Government has treated
as having collective rights in tribal lands or funds; or
(4) group that has been denominated a tribe by an Act of
Congress or Executive order,
shall be required to establish the criteria set forth in this
section only with respect to the period beginning on the date
of the applicable action described in paragraph (1), (2),
(3), or (4) and ending on the date of submission of the
petition.
(d) Deadline for Submission of Petitions.--No Indian group
may submit a petition to the Commission requesting that the
Commission recognize an Indian group as an Indian tribe after
the date that is 8 years after the date of enactment of this
Act. After the Commission makes a determination on each
petition submitted before that date, the Commission may not
make any further determination under this Act to recognize
any Indian group as an Indian tribe.
SEC. 6. NOTICE OF RECEIPT OF PETITION.
(a) Petitioner.--
(1) In general.--Not later than 30 days after a petition is
submitted or transferred
[[Page S2664]]
to the Commission under section 5(a), the Commission shall--
(A) send an acknowledgement of receipt in writing to the
petitioner; and
(B) publish in the Federal Register a notice of that
receipt, including the name, location, and mailing address of
the petitioner and such other information that--
(i) identifies the entity that submitted the petition and
the date the petition was received by the Commission;
(ii) indicates where a copy of the petition may be
examined; and
(iii) indicates whether the petition is a transferred
petition that is subject to the special provisions under
paragraph (2).
(2) Special provisions for transferred petitions.--
(A) In general.--With respect to a petition that is
transferred to the Commission under section 5(a)(3), the
notice provided to the petitioner, shall, in addition to
providing the information specified in paragraph (1), inform
the petitioner whether the petition constitutes a documented
petition that meets the requirements of section 5.
(B) Amended petitions.--If the petition described in
subparagraph (A) is not a documented petition, the Commission
shall notify the petitioner that the petitioner may, not
later than 90 days after the date of the notice, submit to
the Commission an amended petition that is a documented
petition for review under section 7.
(C) Effect of amended petition.--To the extent practicable,
the submission of an amended petition by a petitioner by the
date specified in this paragraph shall not affect the order
of consideration of the petition by the Commission.
(b) Others.--In addition to providing the notification
required under subsection (a), the Commission shall notify,
in writing, the Governor and attorney general of, and each
federally recognized Indian tribe within, any State in which
a petitioner resides.
(c) Publication; Opportunity for Supporting or Opposing
Submissions.--
(1) Publication.--The Commission shall publish the notice
of receipt of each petition (including any amended petition
submitted pursuant to subsection (a)(2)) in a major newspaper
of general circulation in the town or city located nearest
the location of the petitioner.
(2) Opportunity for supporting or opposing submissions.--
(A) In general.--Each notice published under paragraph (1)
shall include, in addition to the information described in
subsection (a), notice of opportunity for other parties to
submit factual or legal arguments in support of or in
opposition to, the petition.
(B) Copy to petitioner.--A copy of any submission made
under subparagraph (A) shall be provided to the petitioner
upon receipt by the Commission.
(C) Response.--The petitioner shall be provided an
opportunity to respond to any submission made under
subparagraph (A) before a determination on the petition by
the Commission.
SEC. 7. PROCESSING THE PETITION.
(a) Review.--
(1) In general.--Upon receipt of a documented petition
submitted or transferred under section 5(a) or submitted
under section 6(a)(2)(B), the Commission shall conduct a
review to determine whether the petitioner is entitled to be
recognized as an Indian tribe.
(2) Content of review.--The review conducted under
paragraph (1) shall include consideration of the petition,
supporting evidence, and the factual statements contained in
the petition.
(3) Other research.--In conducting a review under this
subsection, the Commission may--
(A) initiate other research for any purpose relative to
analyzing the petition and obtaining additional information
about the status of the petitioner; and
(B) consider such evidence as may be submitted by other
parties.
(4) Access to library of congress and national archives.--
Upon request by the petitioner, the appropriate officials of
the Library of Congress and the National Archives shall allow
access by the petitioner to the resources, records, and
documents of those entities, for the purpose of conducting
research and preparing evidence concerning the status of the
petitioner.
(b) Consideration.--
(1) In general.--Except as otherwise provided in this
subsection, petitions submitted or transferred to the
Commission shall be considered on a first come, first served
basis, determined by the date of the original filing of each
such petition with the Commission (or the Department if the
petition is transferred to the Commission pursuant to section
5(a) or is an amended petition submitted pursuant to section
6(a)(2)(B)). The Commission shall establish a priority
register that includes petitions that are pending before the
Department on the date of enactment of this Act.
(2) Priority consideration.--Each petition (that is
submitted or transferred to the Commission pursuant to
section 5(a) or that is submitted to the Commission pursuant
to section 6(a)(2)(B)) of an Indian group that meets 1 or
more of the requirements set forth in section 5(c) shall
receive priority consideration over a petition submitted by
any other Indian group.
SEC. 8. PRELIMINARY HEARING.
(a) In General.--Not later than 60 days after the receipt
of a documented petition by the Commission submitted or
transferred under section 5(a) or submitted to the Commission
pursuant to section 6(a)(2)(B), the Commission shall set a
date for a preliminary hearing. At the preliminary hearing,
the petitioner and any other concerned party may provide
evidence concerning the status of the petitioner.
(b) Determination.--
(1) In general.--Not later than 30 days after the
conclusion of a preliminary hearing under subsection (a), the
Commission shall make a determination--
(A) to extend Federal acknowledgment of the petitioner as
an Indian tribe to the petitioner; or
(B) that provides that the petitioner should proceed to an
adjudicatory hearing.
(2) Notice of determination.--The Commission shall publish
in the Federal Register a notice of each determination made
under paragraph (1).
(c) Information To Be Provided Preparatory to an
Adjudicatory Hearing.--
(1) In general.--If the Commission makes a determination
under subsection (b)(1)(B) that the petitioner should proceed
to an adjudicatory hearing, the Commission shall--
(A)(i) make available appropriate evidentiary records of
the Commission to the petitioner to assist the petitioner in
preparing for the adjudicatory hearing; and
(ii) include such guidance as the Commission considers
necessary or appropriate to assist the petitioner in
preparing for the hearing; and
(B) not later than 30 days after the conclusion of the
preliminary hearing under subsection (a), provide a written
notification to the petitioner that includes a list of any
deficiencies or omissions that the Commission relied on in
making a determination under subsection (b)(1)(B).
(2) Subject of adjudicatory hearing.--The list of
deficiencies and omissions provided by the Commission to a
petitioner under paragraph (1)(B) shall be the subject of the
adjudicatory hearing. The Commission may not make any
additions to the list after the Commission issues the list.
SEC. 9. ADJUDICATORY HEARING.
(a) In General.--Not later than 180 days after the
conclusion of a preliminary hearing under section 8(a), the
Commission shall afford a petitioner who is subject to
section 8(b)(1)(B) an adjudicatory hearing. The subject of
the adjudicatory hearing shall be the list of deficiencies
and omissions provided under section 8(c)(1)(B) and shall be
conducted pursuant to section 554 of title 5, United States
Code.
(b) Testimony From Staff of Commission.--In any hearing
held under subsection (a), the Commission may require
testimony from the acknowledgement and research staff of the
Commission or other witnesses. Any such testimony shall be
subject to cross-examination by the petitioner.
(c) Evidence by Petitioner.--In any hearing held under
subsection (a), the petitioner may provide such evidence as
the petitioner considers appropriate.
(d) Determination by Commission.--Not later than 60 days
after the conclusion of any hearing held under subsection
(a), the Commission shall--
(1) make a determination concerning the extension or denial
of Federal acknowledgment of the petitioner as an Indian
tribe to the petitioner;
(2) publish the determination of the Commission under
paragraph (1) in the Federal Register; and
(3) deliver a copy of the determination to the petitioner,
and to every other interested party.
SEC. 10. APPEALS.
(a) In General.--Not later than 60 days after the date that
the Commission publishes a determination under section 9(d),
the petitioner may appeal the determination to the United
States District Court for the District of Columbia.
(b) Attorney Fees.--If the petitioner prevails in an appeal
made under subsection (a), the petitioner shall be eligible
for an award of reasonable attorney fees and costs under
section 504 of title 5, United States Code, or section 2412
of title 28, United States Code, whichever is applicable.
SEC. 11. EFFECT OF DETERMINATIONS.
A determination by the Commission under section 9(d) that
an Indian group is recognized by the Federal Government as an
Indian tribe shall not have the effect of depriving or
diminishing--
(1) the right of any other Indian tribe to govern the
reservation of such other tribe as that reservation existed
before the recognition of that Indian group, or as that
reservation may exist thereafter;
(2) any property right held in trust or recognized by the
United States for that other Indian tribe as that property
existed before the recognition of that Indian group; or
(3) any previously or independently existing claim by a
petitioner to any such property right held in trust by the
United States for that other Indian tribe before the
recognition by the Federal Government of that Indian group as
an Indian tribe.
SEC. 12. IMPLEMENTATION OF DECISIONS.
(a) Eligibility for Services and Benefits.--
(1) In general.--Subject to paragraph (2), upon recognition
by the Commission of a petitioner as an Indian tribe under
this Act, the Indian tribe shall--
(A) be eligible for the services and benefits from the
Federal Government that are available to other federally
recognized Indian
[[Page S2665]]
tribes by virtue of their status as Indian tribes with a
government-to-government relationship with the United States;
and
(B) have the responsibilities, obligations, privileges, and
immunities of those Indian tribes.
(2) Programs of the bureau.--
(A) In general.--The recognition of an Indian group as an
Indian tribe by the Commission under this Act shall not
create an immediate entitlement to programs of the Bureau in
existence on the date of the recognition.
(B) Availability of programs.--
(i) In general.--The programs described in subparagraph (A)
shall become available to the Indian tribe upon the
appropriation of funds.
(ii) Requests for appropriations.--The Secretary and the
Secretary of Health and Human Services shall forward budget
requests for funding the programs for the Indian tribe
pursuant to the needs determination procedures established
under subsection (b).
(b) Needs Determination and Budget Request.--
(1) In general.--Not later than 180 days after an Indian
group is recognized by the Commission as an Indian tribe
under this Act, the appropriate officials of the Bureau and
the Indian Health Service of the Department of Health and
Human Services shall consult and develop in cooperation with
the Indian tribe, and forward to the Secretary or the
Secretary of Health and Human Services, as appropriate, a
determination of the needs of the Indian tribe and a
recommended budget required to serve the newly recognized
Indian tribe.
(2) Submission of budget request.--Upon receipt of the
information described in paragraph (1), the appropriate
Secretary shall submit to the President a recommended budget
along with recommendations, concerning the information
received under paragraph (1), for inclusion in the annual
budget submitted by the President to the Congress pursuant to
section 1108 of title 31, United States Code.
SEC. 13. ANNUAL REPORT CONCERNING COMMISSION'S ACTIVITIES.
(a) List of Recognized Tribes.--Not later than 90 days
after the first meeting of the Commission, and annually on or
before each January 30 thereafter, the Commission shall
publish in the Federal Register a list of all Indian tribes
that--
(1) are recognized by the Federal Government; and
(2) receive services from the Bureau.
(b) Annual Report.--
(1) In general.--Beginning on the date that is 1 year after
the date of enactment of this Act, and annually thereafter,
the Commission shall prepare and submit a report to the
Committee on Indian Affairs of the Senate and the Committee
on Resources of the House of Representatives that describes
the activities of the Commission.
(2) Content of reports.--Each report submitted under this
subsection shall include, at a minimum, for the year that is
the subject of the report--
(A) the number of petitions pending at the beginning of the
year and the names of the petitioners;
(B) the number of petitions received during the year and
the names of the petitioners;
(C) the number of petitions the Commission approved for
acknowledgment during the year and the names of the
acknowledged petitioners;
(D) the number of petitions the Commission denied for
acknowledgment during the year and the names of the
petitioners; and
(E) the status of all pending petitions on the date of the
report and the names of the petitioners.
SEC. 14. ACTIONS BY PETITIONERS FOR ENFORCEMENT.
Any petitioner may bring an action in the district court of
the United States for the district in which the petitioner
resides, or the United States District Court for the District
of Columbia, to enforce the provisions of this Act, including
any time limitations within which actions are required to be
taken, or decisions made, under this Act. The district court
shall issue such orders (including writs of mandamus) as may
be necessary to enforce the provisions of this Act.
SEC. 15. REGULATIONS.
The Commission may, in accordance with applicable
requirements of title 5, United States Code, promulgate and
publish such regulations as may be necessary to carry out
this Act.
SEC. 16. GUIDELINES AND ADVICE.
(a) Guidelines.--Not later than 90 days after the date of
enactment of this Act, the Commission shall make available to
Indian groups suggested guidelines for the format of
petitions, including general suggestions and guidelines
concerning where and how to research information that is
required to be included in a petition. The examples included
in the guidelines shall not preclude the use of any other
appropriate format.
(b) Research Advice.--The Commission may, upon request,
provide suggestions and advice to any petitioner with respect
to the research of the petitioner concerning the historical
background and Indian identity of that petitioner. The
Commission shall not be responsible for conducting research
on behalf of the petitioner.
SEC. 17. ASSISTANCE TO PETITIONERS.
(a) Grants.--
(1) In general.--The Secretary of Health and Human Services
may award grants to Indian groups seeking Federal recognition
as Indian tribes to enable the Indian groups to--
(A) conduct the research necessary to substantiate
petitions under this Act; and
(B) prepare documentation necessary for the submission of a
petition under this Act.
(2) Treatment of grants.--The grants made under this
subsection shall be in addition to any other grants the
Secretary of Health and Human Services is authorized to
provide under any other provision of law.
(b) Competitive Award.--The grants made under subsection
(a) shall be awarded competitively on the basis of objective
criteria prescribed in regulations promulgated by the
Secretary of Health and Human Services.
SEC. 18. AUTHORIZATION OF APPROPRIATIONS.
(a) Commission.--There are authorized to be appropriated to
the Commission to carry out this Act (other than section 17)
such sums as are necessary for each of fiscal years 2001
through 2009.
(b) Secretary of HHS.--To carry out section 17, there are
authorized to be appropriated to the Department of Health and
Human Services for the Administration for Native Americans
such sums as are necessary for each of fiscal years 2001
through 2009.
______
By Mr. CAMPBELL:
S. 612. A bill to provide for periodic Indian needs assessments, to
require Federal Indian program evaluations; and for other purposes; to
the Committee on Indian Affairs.
Indian Needs Assessment, Program Evaluation and Policy Coordination Act
of 1999
Mr. CAMPBELL. Mr. President, today I am pleased to be joined by
Senator Inouye in introducing the Indian Needs Assessment, Program
Evaluation and Policy Coordination Act of 1999 to bring about needed
reforms in the way Indian programs are designed and funded.
As the annual funding debates over Indian programs show us year after
year, rational and equitable funding decisions are made more difficult
because of the lack of accurate and up to date information about the
needs of tribal governments and tribal members.
The ability of the Congress to target unmet needs and make available
adequate funds for tribes and tribal members is directly related to the
quantity and quality of information available about the type and degree
of demand for federal programs and services.
Within one year of the enactment of this Act, and every 5 years
thereafter, each Federal agency or department is required to conduct an
``Indian Needs Assessment'' (``INA'') aimed at determining the needs of
tribes and Indians eligible for programs and services administered by
such agency or department.
To facilitate information collection and analysis, the bill requires
the development of a uniform method, criteria and procedures for
determining, analyzing, and compiling the program and service needs of
tribes and Indians.
The resulting ``Indian Needs Assessments'' are to be filed with the
Committees on Appropriations and Indian Affairs of the Senate, and the
Committees on Appropriations and Resources of the House of
Representatives.
In addition to a Needs Assessment, the bill also requires that each
Federal agency or department responsible for providing services to
Indians file an ``Annual Indian Program Evaluation'' (``AIPE'') with
these same committees. The AIPE will measure the performance and
effectiveness of the programs under the jurisdiction of that agency or
department, and include recommendations as to how such programs can be
improved.
I ask unanimous consent that a copy of the bill be printed in the
Record and urge my colleagues to join me in supporting this measure.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 612
Be it enacted by the Senate and House or Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Needs Assessment and
Program Evaluation Act of 1999''.
SEC. 2. FINDINGS, PURPOSES.
(a) Findings.--the Congress finds that--
(1) the United States and the Indian tribes have a unique
legal and political government-to-government relationship;
(2) pursuant to Constitution, treaties, statutes, executive
order, court decisions, and course of conduct, the United
States has a trust obligation to provide certain services to
Indian tribes and to Indians;
[[Page S2666]]
(3) Federal agencies charged with administering programs
and providing services to or for the benefit of Indians have
not furnished Congress with adequate information necessary to
assess such programs or the needs of Indians and Indian
tribes;
(4) such lack of information has hampered the ability of
the Congress to determine the nature, type, and magnitude of
such needs as well as its ability to respond to them.
(5) Congress cannot properly fulfill its obligation to
Indian tribes and Indian people unless and until it has an
adequate store of information related to the needs of Indians
nationwide.
(b) Purposes.--the purposes of this Act are to--
(1) ensure that Indian needs for federal programs and
services are known in a more certain and predictable fashion;
(2) to require that Federal agencies and departments
carefully review and monitor the effectiveness of the
programs and services provided to Indians;
(3) to provide for more efficient and effective cooperation
and coordination of, and accountability from, the agencies
and departments providing programs and services, including
technical and business development assistance, to Indians;
and
(4) to provide Congress with reliable information regarding
both Indian needs and the evaluation of federal programs and
services provided to Indians nationwide.
SEC. 3. INDIAN TRIBAL NEEDS ASSESSMENT.
(a) Indian Tribal Needs Assessments.--In General.--
(1) within 180 days after the enactment of this Act, the
Secretary, in consultation and coordination with the
Departments of Agriculture, Commerce, Defense, Energy, Labor,
Justice, Treasury, Transportation, and Veterans Affairs, the
Environmental Protection Agency, other relevant agencies,
offices, and departments, shall develop a uniform method,
criteria and procedures for determining, analyzing, and
compiling the program and service assistance needs of Indian
tribes and Indians nationwide. The needs assessment shall
address, but not be limited to, the following:
(A) The total population of the tribe(s), and the
population of tribal members located in the service area,
where applicable;
(B) The size of the service area;
(C) The location of the service area;
(D) The availability of similar programs within the
geographical area to tribes or tribal members; and
(E) socio-economic conditions that exist within the service
area.
(2) the Secretary shall consult with tribal governments in
establishing and conducting the needs assessment mandated by
this Act.
(3) within 1 year of the enactment of this Act, and every
five (5) years thereafter, each Federal agency or department,
in coordination with the Secretary, shall conduct an Indian
Needs Assessment (``INA'') aimed at determining the actual
needs of Indian tribes and Indians eligible for programs and
services administered by such agency or department.
(4) the Indian Needs Assessment developed pursuant to
subsection (c)(3) above shall be filed with the Committees on
Appropriations and Indian Affairs of the Senate, and the
Committees on Appropriations and Resources of the House of
Representatives on February 1 of each year in which it is to
be submitted.
(b) Federal Agency Indian Tribal Program Evaluation.--
(1) within 180 days of enactment of this Act, the Secretary
shall develop a uniform method, criteria and procedures for
compiling, maintaining, keeping current and reporting to
Congress all information concerning
(A) the agency or department annual expenditure for
programs and services for which Indians are eligible, with
specific information regarding the names of tribes who are
currently participating in or receiving each service, the
names of tribes who have applied for and not received
programs or services, and the names of tribes whose services
or programs have been terminated within the last fiscal year;
(B) services or programs specifically for the benefit of
Indians, with specific information regarding the names of
tribes who are currently participating in or receiving each
service, the names of tribes who have applied for and not
received programs or services, and the names of tribes whose
services or programs have been terminated within the last
fiscal year;
(C) the agency or department method of delivery of such
services and funding, including a detailed explanation of the
outreach efforts of each agency or department to Indian
tribes.
(2) within 1 year of the enactment of this Act, and
annually thereafter, each Federal agency or department
responsible for providing services or programs to or for the
benefit of Indian tribes or Indians shall file an Annual
Indian Program Evaluation (``AIPE'') with the Committees on
Appropriations and Indian Affairs of the Senate, and the
Committees on Appropriations and Resources of the House of
Representatives.
(c) Annual Listing of Tribal Eligible Programs.--On or
before February 1 of each calendar year, those Federal
agencies or departments mentioned in (b)(2) above, shall
develop and publish in the Federal Register a list of all
programs and services offered by such agency or department
for which Indian tribes or their members are or may be
eligible, and shall provide a brief explanation of the
program or service.
SEC. 4. REPORT TO CONGRESS
(a) In General.--the Secretary shall, within 1 years of the
enactment of this Act, develop and submit to the Committees
on Appropriations and Indian Affairs of the Senate, and the
Committees on Appropriations and Resources of the House of
Representatives a report detailing the coordination of
federal program and service assistance for which Indian
tribes and their members are eligible.
(b) Strategic Plan.--the Secretary shall, within 18 months
after the enactment of this Act, and after consultation and
coordination with the Indian tribes, file a Strategic Plan
for the Coordination of Federal Assistance for Indians.
(c) Contents of Strategic Plan.--the Plan required under
this Act shall contain (1) identification of reforms
necessary to the laws, regulations, policies, procedures,
practices, and systems of the agencies involved; (2)
proposals for remedying the reforms identified in the Plan;
and (3) other recommendations consistent with the purposes of
the Act.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
(a) Beginning in fiscal year 2001 and for each fiscal year
thereafter, there are authorized to be appropriated such sums
as are necessary to carry out this Act.
______
By Mr. CAMPBELL:
S. 613. A bill to encourage Indian economic development, to provide
for the disclosure of Indian tribal sovereign immunity in contracts
involving Indian tribes, and for other purposes; to the Committee on
Indian Affairs.
INDIAN TRIBAL ECONOMIC DEVELOPMENT AND CONTRACT ENCOURAGEMENT ACT OF
1999
Mr. CAMPBELL. Mr. President, today I am pleased to introduce the
Indian Tribal Economic Development and Contract Encouragement Act of
1999 to encourage tribal economic development, provide for disclosures
regarding tribal sovereign immunity, and eliminate excessive and
unproductive bureaucratic oversight of tribal decisions.
As many of my colleagues are aware, most Indian tribes are not in the
position to fund all, or even most of their governmental operations
through taxes imposed on reservation-based activities or assets. Often
a tribe's own land and other natural resources are the only means a
tribe has to fund its activities or to promote economic development
within its reservation boundaries.
Since land is the basic trust resource, the United States has the
authority and the responsibility to oversee the lease of tribal lands.
Where tribes propose to enter leases of their lands, a federal statute
provides that the lease is only valid if it is approved by the Interior
Department. My proposed bill does not affect the federal government's
authority to approve leases. My bill addresses non-lease agreements
between Indian tribes and those that provide services that relate to
the tribe's lands.
Not that long ago, tribes had to rely on federal bureaucrats to
devise ways to develop their lands, to negotiate leases, and to then
approve those leases. In many instances, tribes are now developing
their own proposals. To assist in the development of a private sector,
I want to encourage this entrepreneurial spirit.
There are strong indications, however, that an ancient federal
statute is impeding every Indian tribe's ability to enter into
agreements with those who might be hired by the tribe to assist it in
developing its lands. Like most laws, this statute was enacted with the
best intentions. I speak of a law enacted over 125 years ago; a law
enacted when many Indians had to rely on translators to read the
treaties between the United States and their tribal government. The
statute I propose to amend was enacted in 1871, and it survives in much
the same form today as it did then--64 Congresses ago.
Section 81, as it is known, provides that a contract ``relating to
Indian lands'' is not valid unless it is approved by the Secretary.
Section 81 imposes no limits on how long the BIA may take to review the
agreement or even what standards apply to decide whether the contract
should be approved or denied.
The bill I introduce today addresses these issues and others.
First, the bill gives the Secretary 90 days to review a proposed
contract. This is the same amount of time the Secretary has to review
contracts relating to the management of gaming facilities. My bill
provides that if the government takes no action for 90
[[Page S2667]]
days, then the tribe can proceed with the project unhindered by the
lack of approval.
All other federal laws will still apply to the agreement.
Second, the Secretary must identify the types of contracts that are
not covered by this statute. A tribe can submit such contracts and the
BIA has 45 days to determine whether they are covered by the law. The
Secretary is still authorized to reject any contract that violates
federal law.
Finally, the bill incorporates a suggestion made in 1988 by then-
Assistant Secretary Ross Swimmer to ``eliminate the current statutory
requirements that the Secretary approve the tribal selection of
attorneys and attorney fees.'' To allow the selection of counsel,
without the Secretary's oversight, is fundamental to Indian self-
determination.
My bill addresses one other key matter. Like other sovereign
governments, Indian tribes are free to negotiate with potential
business partners whether, in what form, and to what extent the parties
can sue and be sued under a contract they enter. My bill recognizes a
tribe's discretion in this area and it leaves it in place.
After numerous hearings conducted in the 105th Congress and in
previous congresses, I believe the record is clear: Indian tribes have
been increasingly responsible in their consideration of immunity
decisions.
I am concerned, however, about those who may enter into agreements
with Indian tribes knowing that the tribe retains immunity but at a
later time insist that they have been treated unfairly by the tribe
raising the immunity defense.
Under my bill, the Secretary must deny approval of contracts if the
agreement in question fails to state that the parties recognize that
the tribe is immune from suit unless immunity is expressly waived.
Excessive federal regulation, especially if it impedes business and
economic development in Indian Country, needs to be eliminated. Whether
we put this belief in terms of the Contract with America, or the
initiative to reinvent government, our objective is the same.
There is no group of people who have experienced more federal
regulation of every aspect of their lives than Indians. This bill
represents a commitment to reduce unnecessary and anachronistic federal
bureaucratic requirements.
I ask unanimous consent that a copy of the bill be printed in the
Record, and I urge my colleagues to join me in supporting this critical
measure.
There being no objection, this bill was ordered to be printed in the
Record, as follows:
S. 613
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Tribal Economic
Development and Contract Encouragement Act of 1999''.
SEC. 2. CONTRACTS AND AGREEMENTS WITH INDIAN TRIBES.
Section 2103 of the Revised Statutes (25 U.S.C. 81) is
amended--
(1) by inserting ``(a)'' before ``No agreement'';
(2) in subsection (a), as designated by paragraph (1) of
this section--
(A) by striking ``, or individual Indians not citizens of
the United States,'';
(B) by striking ``First. Such agreement'' and inserting the
following:
``(1) Such contract or agreement'';
(C) by striking ``Second. It shall bear the approval of the
Secretary of the Interior and the Commissioner of Indian
Affairs endorsed up on it.'' and inserting the following:
``(2) Except as provided in subsection (b), it shall bear
the approval of the Secretary of the Interior (referred to in
this section as the `Secretary') or a designee of the
Secretary of the Interior endorsed upon it.'';
(D) by striking ``Third. It'' and inserting the following:
``(3) It'';
(E) by striking ``Fourth. It'' and inserting the following:
``(4) It''; and
(F) by striking ``Fifth. It'' and inserting the following:
``(5) It'';
(3) by inserting ``(d)'' before ``All contracts'';
(4) by inserting after subsection (a) the following:
``(b) Subsection (a)(2) shall not apply to a contract or
agreement in any case in which--
``(1) the Secretary (or a designee of the Secretary) fails
to approve or disapprove the contract or agreement by the
date that is 90 days after the date on which the contract or
agreement is filed with the Secretary under this section; or
``(2)(A) the tribe notifies the Secretary in a manner
prescribed by the Secretary under subsection (c)(3) that a
contract or agreement is not covered under subsection (a);
and
``(B) the Secretary (or a designee of the Secretary) fails
to inform the tribe in writing, by the date that is 45 days
after receipt of the notification under subparagraph (A),
that the Secretary (or designee) intends to review the
contract agreement by the date specified in paragraph (1).
``(c)(1) The Secretary (or a designee of the Secretary)
shall refuse to approve a contract or agreement that is filed
with the Secretary under this section if the Secretary (or
designee) determines that the contract or agreement--
``(A) violates Federal law; or
``(B)(i) is covered under subsection (a); and
``(ii) does not include a provision that--
``(I) provides for remedies in the case of a breach of the
contract or agreement;
``(II) references a tribal code, ordinance, or ruling of a
court of competent jurisdiction that discloses the right of
the tribe to assert sovereign immunity as a defense in an
action brought against the tribe; or
``(III) includes an express waiver of the right of the
tribe to assert sovereign immunity as a defense in an action
brought against the tribe (including a waiver that limits the
nature of relief that may be provided or the jurisdiction of
a court with respect to such an action).
``(2)(A) The Secretary (or a designee of the Secretary)
shall not approve any contract or agreement that is submitted
to the Secretary for approval under this section if the
Secretary (or designee) determines that the contract or
agreement is not covered under subsection (a).
``(B) If the Secretary determines that a contract or
agreement is not covered under subsection (a), the Secretary
shall notify the tribe of that determination.
``(3) To assist tribes in providing notice under subsection
(b)(2), the Secretary shall--
``(A) issue guidelines for identifying types of contracts
or agreements that are not covered under subsection (a); and
``(B) establish procedures for providing that notice.
``(4) The failure of the Secretary to approve a contract or
agreement under this subsection or to provide notice under
paragraph (2)(B) shall not affect the applicability of a
requirement under any other provision of Federal law.'';
(5) in subsection (d), as redesignated by paragraph (3) of
this section, by striking ``paid to any person by any Indian
tribe'' and all that follows through the end of the
subsection and inserting ``paid to any person by any tribe or
any other person on behalf of the tribe on account of such
services in excess of the amount approved by the Secretary of
the Interior, may be recovered in an action brought by the
tribe or the United States. Such an action may be brought in
any district court of the United States, without regard to
the amount in controversy. Any amount recovered under this
subsection shall be paid to the Treasury of the United States
for use by the tribe for whom it was recovered.''; and
(6) by adding at the end the following:
``(e) Nothing in this section shall be construed to require
the Secretary of the Interior to approve a contract for legal
services by an attorney.''.
SEC. 3. CHOICE OF COUNSEL.
Section 16(e) of the Act of June 18, 1934 (commonly
referred to as the ``Indian Reorganization Act'') (48 Stat.
987, chapter 576; 25 U.S.C. 476(e)) is amended by striking
``, the choice of counsel and fixing of fees to be subject to
the approval of the Secretary''.
______
By Mr. CAMPBELL (for himself and Mr. Inouye):
S. 614. A bill to provide for regulatory reform in order to encourage
investment, business, and economic development with respect to
activities conducted on Indian lands; to the Committee on Indian
Affairs.
INDIAN TRIBAL REGULATORY REFORM AND BUSINESS DEVELOPMENT ACT OF 1999
Mr. CAMPBELL. Mr. President, today I am pleased to introduce another
key piece of legislation to encourage private sector development on
Indian lands. This bill is aimed at removing the obstacles that stand
in the way of responsive government and greater levels of business
activity in Indian country--the Indian Tribal Regulatory Reform and
Business Development Act of 1999.
Over the years, laws, regulations and policies have been built up--
often with good intentions--but have outlived their usefulness or
relevance to the contemporary needs of Indian tribal governments and
economies.
More importantly, the multi-layered bureaucracies, federal as well as
tribal, have been repeatedly identified as a barrier to Indian
entrepreneurship and business development on and around Indian lands.
Efforts to reduce bureaucracy are not new or unique to Indian
country. Governments around the world have begun
[[Page S2668]]
embarking on efforts to downsize and streamline government operations
to an appropriate level--one that complements human endeavors rather
than hindering them.
The bill I am introducing today is part of the much-needed effort to
accomplish the same goal to benefit the business environments on Indian
lands nationwide.
The legislation requires a comprehensive review of the laws and
regulations affecting investment and business decisions on Indian
lands, and requires the Regulatory Reform and Business Development on
Indian lands Authority to determine the extent to which such laws and
regulations unnecessarily or inappropriately impair investment and
business development on Indian lands.
The Authority is also required to determine how such laws and
regulations impact the financial stability and management efficiency of
tribal governments.
Under the provisions of this bill, the Authority is required to
conduct the review and within one year report the findings and
recommendations to the Congress and the President for further actions.
Mr. President, this is not the first time an effort of this sort has
been proposed, but I believe that if conducted properly, it can serve
as a lasting and constructive initiative to further the long-term
health and prosperity of tribal governments and economies.
I ask unanimous consent that a copy of the bill be printed in the
Record, and urge my colleagues to join me in supporting this key
measure.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 614
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Tribal Regulatory
Reform and Business Development Act of 1999''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) despite the availability of abundant natural resources
on Indian lands and a rich cultural legacy that accords great
value to self-determination, self-reliance, and independence,
American Indians and Alaska Natives suffer rates of
unemployment, poverty, poor health, substandard housing, and
associated social ills to a greater degree than any other
group in the United States;
(2) the capacity of Indian tribes to build strong tribal
governments and vigorous economies is hindered by the
inability of Indian tribes to engage communities that
surround Indian lands and outside investors in economic
activities conducted on Indian lands;
(3) beginning in 1970, with the issuance by the Nixon
Administration of a special message to Congress on Indian
Affairs, each President has confirmed the special government-
to-government relationship between Indian tribes and the
United States; and
(4) the United States has an obligation to assist Indian
tribes with the creation of appropriate economic and
political conditions with respect to Indian lands to--
(A) encourage investment from outside sources that do not
originate with the Indian tribes; and
(B) facilitate economic development on Indian lands.
(b) Purposes.--The purposes of this Act are as follows:
(1) To provide for a comprehensive review of the laws
(including regulations) that affect investment and business
decisions concerning activities conducted on Indian lands.
(2) To determine the extent to which those laws
unnecessarily or inappropriately impair--
(A) investment and business development on Indian lands; or
(B) the financial stability and management efficiency of
tribal governments.
(3) To establish an authority to conduct the review under
paragraph (1) and report findings and recommendations that
result from the review to Congress and the President.
SEC. 3. DEFINITIONS.
In this Act:
(1) Authority.--The term ``Authority'' means the Regulatory
Reform and Business Development on Indian Lands Authority.
(2) Federal agency.--The term ``Federal agency'' means an
agency, as that term is defined in section 551(1) of title 5,
United States Code.
(3) Indian.--The term ``Indian'' has the meaning given that
term in section 4(d) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b(d)).
(4) Indian lands.--The term ``Indian lands'' has the
meaning given that term in section 4(4) of the Indian Gaming
Regulatory Act (25 U.S.C. 2703(4)).
(5) Indian tribe.--The term ``Indian tribe'' has the
meaning given that term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(e)).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(7) Tribal organization.--The term ``tribal organization''
has the meaning given that term in section 4(l) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b(l)).
SEC. 4. ESTABLISHMENT OF AUTHORITY.
(a) Establishment.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the Secretary, in consultation with
the Secretary of the Interior and other officials whom the
Secretary determines to be appropriate, shall establish an
authority to be known as the Regulatory Reform and Business
Development on Indian Lands Authority.
(2) Purpose.--The Secretary shall establish the Authority
under this subsection in order to facilitate identifying and
subsequently removing obstacles to investment, business
development, and the creation of wealth with respect to the
economies of Indian reservations.
(b) Membership.--
(1) In general.--The Authority established under this
section shall be composed of 21 members.
(2) Representatives of indian tribes.--12 members of the
Authority shall be representatives of the Indian tribes from
the areas of the Bureau of Indian Affairs. Each such area
shall be represented by such a representative.
(c) Initial Meeting.--Not later than 90 days after the date
of enactment of this Act, the Authority shall hold its
initial meeting.
(d) Review.--Beginning on the date of the initial meeting
under subsection (c), the Authority shall conduct a review of
laws (including regulations) relating to investment,
business, and economic development that affect investment and
business decisions concerning activities conducted on Indian
lands.
(e) Meetings.--The Authority shall meet at the call of the
chairperson.
(f) Quorum.--A majority of the members of the Authority
shall constitute a quorum, but a lesser number of members may
hold hearings.
(g) Chairperson.--The Authority shall select a chairperson
from among its members.
SEC. 5. REPORT.
Not later than 1 year after the date of enactment of this
Act, the Authority shall prepare and submit to the Committee
on Indian Affairs of the Senate, the Committee on Resources
of the House of Representatives, and to the governing body of
each Indian tribe a report that includes--
(1) the findings of the Authority concerning the review
conducted under section 4(d); and
(2) such recommendations concerning the proposed revisions
to the laws that were subject to review as the Authority
determines to be appropriate.
SEC. 6. POWERS OF THE AUTHORITY.
(a) Hearings.--The Authority may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Authority considers advisable to
carry out the duties of the Authority.
(b) Information From Federal Agencies.--The Authority may
secure directly from any Federal department or agency such
information as the Authority considers necessary to carry out
the duties of the Authority.
(c) Postal Services.--The Authority may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(d) Gifts.--The Authority may accept, use, and dispose of
gifts or donations of services or property.
SEC. 7. AUTHORITY PERSONNEL MATTERS.
(a) Compensation of Members.--
(1) Non-federal members.--Members of the Authority who are
not officers or employees of the Federal Government shall
serve without compensation, except for travel expenses, as
provided under subsection (b).
(2) Officers and employees of the federal government.--
Members of the Authority who are officers or employees of the
United States shall serve without compensation in addition to
that received for their services as officers or employees of
the United States.
(b) Travel Expenses.--The members of the Authority shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Authority.
(c) Staff.--
(1) In general.--The chairperson of the Authority may,
without regard to the civil service laws, appoint and
terminate such personnel as may be necessary to enable the
Authority to perform its duties.
(2) Procurement of temporary and intermittent services.--
The chairperson of the Authority may procure temporary and
intermittent service under section 3109(b) of title 5, United
States Code, at rates for individuals that do not exceed the
daily equivalent of the annual rate of basic pay prescribed
under GS-13 of the General Schedule established under section
5332 of title 5, United States Code.
SEC. 8. TERMINATION OF THE AUTHORITY.
The Authority shall terminate 90 days after the date on
which the Authority has
[[Page S2669]]
submitted, to the committees of Congress specified in section
5, and to the governing body of each Indian tribe, a copy of
the report prepared under section 5.
SEC. 9. EXEMPTION FROM FEDERAL ADVISORY COMMITTEE ACT.
The activities of the authority conducted under this title
shall be exempt from the Federal Advisory Committee Act (5
U.S.C. App.).
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act, to remain available until
expended.
______
By Mr. CAMPBELL:
S. 615. A bill to encourage Indian economic development, to provide
for a framework to encourage and facilitate intergovernmental tax
agreements, and for other purposes.
INTER-GOVERNMENTAL TAX AGREEMENT ACT OF 1999
Mr. CAMPBELL. Mr. President, to encourage states and tribes to
negotiate and enter fair and binding tax compacts, I introduce today
the Inter-Governmental Tax Agreement Act of 1999.
In 1998, I introduced similar legislation to provide a mechanism,
short of litigation, for the collection of state retail sales taxes.
The Committee on Indian Affairs held several hearings on the issue of
taxation involving tribes and sales made on Indian lands and heard from
tribal leaders, state tax officials, private retailers, and other
affected parties. Though no resolution was reached, the voluminous
record developed by the Committee has helped flesh out the issue of
taxation and has led to a fuller picture being developed.
Because there is much confusion about Indians and tax matters, I
should be clear and explain exactly what we are talking about when we
address these matters. Indian tribal governments, like state
governments, pay no federal taxes on income earned by the tribe.
Individual members of Indian tribes pay the same taxes other citizens
of the United States pay: federal income taxes, Social Security taxes,
and a host of other taxes.
What we are focusing on with this bill are state taxes on retail
sales made to non-Indians on goods such as tobacco and fuel when the
transaction occurs on Indian lands. As late as 1991, the Supreme Court
ruled that such taxes are legitimately levied taxes and set out several
possible remedies available to states including lawsuits against tribal
officials and negotiating a tax compact. The court was equally clear,
however, that because of tribal common law immunity from lawsuits,
tribes cannot be sued to collect the tax revenues.
Consistent with that opinion, at least 18 states and dozens of Indian
tribes have chosen to negotiate and enter into tax agreements. At the
Committee hearing in March 1998, it was estimated that more than 200
``intergovernmental tax agreements'' are now in place covering a
variety of retail goods.
These agreements detail the collection and remittance of tax revenues
by the tribe to the state on sales to non-members of the tribe, and
often allow for an ``administrative fee'' paid to the tribe for their
efforts to collect and remit the tax revenues.
Two factors were presented to the Committee which are legitimate
issues for debate in the 106th Congress. First, the question of
services provided by the state and/or the tribe to Indians and non-
Indians living on tribal lands; and second, the devastating impact on
Indian economies as a result of ``dual'' state and tribal taxes levied
on the same transaction.
This legislation encourages state-tribal agreements by requiring that
states and tribes attempt to resolve their differences in good faith
through negotiations aimed at entering into a tax compact.
If efforts to reach agreement through negotiations and mediation
fail, under this bill the Interior Secretary may refer the matter to
the ``Intergovernmental Dispute Resolution Panel'' consisting of
representatives of the departments of Interior, Justice, and Treasury,
Indian tribal governments, and State governments.
Rather than create an entirely new mechanism, the framework provided
by this bill relies on existing mediation services provided by the
Federal Mediation and Conciliation Service to assist the Panel in
carrying out its duties in arriving at fair agreements.
The history of state-tribal relations is one full of acrimony with
brief periods of cooperation. The tax issue is an emotional one with a
long history, Mr. President, but I am hopeful that fair and equitable
solutions to matters involving states, tribes and taxation can be
developed with the input of all affected parties.
I ask unanimous consent that a copy of the bill be printed in the
Record and urge my colleagues to support this important measure.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 615
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Intergovernmental Tax
Agreement Act of 1999''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) Indian tribal governments exercise governmental
authority and powers over persons and activities that occur
on Indian lands;
(2) a dual State-tribal tax burden on transactions by
Indian tribes and members of Indian tribes with non-Indian
persons and entities undermines the ability of Indian tribes
to finance governmental functions and programs of those
Indian tribes;
(3) the apportionment of taxes from commercial activities
occurring on Indian lands should take into account the
government services provided by the State and the Indian
tribe involved to members of that Indian tribe and other
individuals residing on those lands;
(4) the governments of Indian tribes and States have
negotiated and entered into more than 200 tax compacts, and
those compacts cover a variety of commodities and retail
taxes;
(5) in cases in which a tax compact between an Indian tribe
and a State is not in effect, conflicts between the State and
Indian tribe may require the active involvement of the United
States in the role of the United States as a trustee for the
Indian tribe;
(6) alternative dispute resolution--
(A) has been used to resolve successfully disputes in the
public and private sectors;
(B) results in expedited decisionmaking; and
(C) is less costly and less contentious than litigation;
and
(7) it is necessary to facilitate intergovernmental
agreements between Indian tribes and States and political
subdivisions thereof.
(b) Purposes.--The purposes of this Act are as follows:
(1) To strengthen the economies of Indian tribes.
(2) To encourage and facilitate tax agreements between the
governments of Indian tribes and State governments.
SEC. 3. DEFINITIONS.
In this Act:
(1) Compact.--The term ``compact'' means a written
agreement between a State and an Indian tribe concerning the
collection and remittance of--
(A) applicable State taxes on retail commercial
transactions involving non-Indians on Indian lands of that
Indian tribe; or
(B) covered tribal equivalency taxes.
(2) Covered tribal equivalency tax.--The term ``covered
tribal equivalency tax'' means a tribal equivalency tax--
(A) with a rate that is equal to or greater than the rate
of an applicable State sales or excise tax for transactions
for which the tax is imposed; and
(B)(i) that is used to--
(I) fund tribal government operations or programs;
(II) provide for the general welfare of the Indian tribe
and the members of that Indian tribe;
(III) promote the economic development of that Indian
tribe; or
(IV) assist in funding operations of local governmental
agencies; or
(ii) that is a fuel or highway tax, with respect to which
the revenues derived from the tax are used only for highway
and transportation purposes.
(3) Indian lands.--The term ``Indian lands'' means, with
respect to an Indian tribe--
(A) lands within the reservation of that Indian tribe; and
(B) other lands over which the Indian tribe exercises
governmental jurisdiction.
(4) Indian tribe.--The term ``Indian tribe'' has the
meaning given that term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(e)).
(5) Non-indian.--The term ``non-Indian'' means a person who
is not--
(A) an Indian tribe;
(B) comprised of members of an Indian tribe; or
(C) a member of an Indian tribe.
(6) Panel.--The term ``Panel'' means the Intergovernmental
Dispute Resolution Panel established under section 5.
(7) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(8) State.--The term ``State'' means each of the 50 States.
(9) Tribal equivalency tax.--The term ``tribal equivalency
tax'' means a tax that--
(A) is imposed by the tribal government of an Indian tribe
on retail commercial transactions that involve non-Indians on
Indian
[[Page S2670]]
lands within the jurisdiction of that Indian tribe; and
(B) is in addition to any State tax that may be imposed.
SEC. 4. INTERGOVERNMENTAL TAX AGREEMENTS.
(a) In General.--The consent of the United States is
granted to States and Indian tribes to enter into compacts
and agreements in accordance with this Act.
(b) Compact Negotiations.--An Indian tribe may request the
Secretary to initiate negotiations on the part of that Indian
tribe with a State for the purpose of entering into a tax
compact under this section. A State may request the Secretary
to initiate negotiations between an Indian tribe and the
State to enter into such a tax compact.
(c) Notification.--The Secretary shall notify each affected
Indian tribe or State of any request made under subsection
(b).
(d) Requirements for Request for Initiation of
Negotiations.--
(1) Written request.--A request by an Indian tribe or State
under subsection (a) shall be in writing.
(2) Response.--Not later than 30 days after receiving a
request referred to in paragraph (1), the Secretary shall
issue a written response to the Indian tribe or State that
submitted the request.
(e) Commencement of Negotiations; Completion of
Negotiations.--
(1) Commencement of negotiations.--Not later than 30 days
after the date specified in subsection (d), the Secretary
shall commence negotiations with respect to the tax compact
that is the subject of the request submitted by the Indian
tribe or State.
(2) Completion of negotiations.--Not later than 120 days
after the commencement of the negotiations under paragraph
(1), the parties shall complete the negotiations, unless the
parties agree to an extension of the period of time for
completion of the negotiations.
(f) Mediation.--The Secretary shall initiate a mediation
process, with the goal of achieving a tax compact, if--
(1) by the date specified in subsection (e)(1), the party
that was requested to enter into negotiations, failed to
respond to that request; or
(2) upon the completion of an applicable period for
negotiations, as determined under subsection (e)(2), the
parties have failed to execute a compact.
SEC. 5. INTERGOVERNMENTAL DISPUTE RESOLUTION PANEL.
(a) Establishment.--There is established the
Intergovernmental Dispute Resolution Panel.
(b) Membership of the Panel.--
(1) In general.--The Panel shall consist of--
(A) 1 representative from the Department of the Interior;
(B) 1 representative from the Department of Justice;
(C) 1 representative from the Department of the Treasury;
(D) 1 representative of State governments; and
(E) 1 representative of tribal governments of Indian
tribes.
(2) Chairperson.--The members of the Panel shall select a
Chairperson from among the members of the Panel.
(c) Duties of Panel.--To the extent allowable by law, the
Panel may consider and render a decision on the following:
(1) If negotiations and mediation conducted under section 4
do not result in the execution of a compact, a dispute
between the State and Indian tribe that is referred to the
Panel at the discretion of the Secretary.
(2) Any claim involving the legitimacy of a claim for the
collection or payment of retail taxes claimed by a State with
respect to transactions conducted on Indian lands (including
counterclaims, setoffs, or related claims submitted or filed
by an Indian tribe in question regarding an original claim
involving that Indian tribe).
(d) Federal Mediation Conciliation Service.--
(1) In general.--In a manner consistent with this Act, the
Panel shall consult with the Federal Mediation Conciliation
Service (referred to in this subsection as the ``Service'')
established under section 202 of the National Labor Relations
Act (29 U.S.C. 172).
(2) Duties of service.--The Service shall, upon request of
the Panel and in a manner consistent with applicable law,
provide services to the Panel to aid in resolving disputes
brought before the Panel.
SEC. 6. JUDICIAL ENFORCEMENT.
(a) In General.--Except as provided in subsections (b) and
(c), the district courts of the United States shall have
original jurisdiction with respect to--
(1) the enforcement of any compact entered into under this
Act; and
(2) any civil action, claim, counterclaim, or setoff,
brought by any party with respect to a compact entered into
under this Act to secure equitable relief, including
injunctive and declaratory relief.
(b) Damages.--No action to recover damages arising out of
or in connection with an agreement or compact entered into
under this Act may be brought, except as specifically
provided for in that agreement or compact.
(c) Consent to Suit.--Each compact entered into under this
Act shall specify that each party to the compact--
(1) consents to litigation to enforce the compact; and
(2) to the extent necessary to enforce that compact, waives
any defense of sovereign immunity.
______
By Ms. COLLINS:
S. 617. A bill to amend title XVIII of the Social Security Act to
provide for coverage under the medicare program of insulin pumps as
items of durable medical equipment; to the Committee on Finance.
medicare insulin pump coverage act of 1999
Ms. COLLINS. Mr. President, diabetes is a serious and potentially
life-threatening disease affecting more than 16 million Americans at a
cost of more than $105 billion annually. Moreover, since 3 million
elderly Medicare beneficiaries have been diagnosed with diabetes, and
another 3 million are likely to have the disease but not know it,
nowhere is the economic impact of diabetes felt more strongly than in
the Medicare Program.
Treating these seniors for the often devastating complications
associated with diabetes accounts for more than one-quarter of all
Medicare expenditures. Therefore, helping diabetic seniors avoid the
complications of their disease will not only improve the quality of
their lives but also help reduce the economic burden that diabetes
places on Medicare. While there is no known cure, diabetes is largely a
treatable disease. Many people who have diabetes can often lead
relatively normal, active lives as long as they stick to a proper diet,
carefully monitor the amount of sugar or glucose in their blood and
take their medication, which may or may not include insulin.
However, if these people with diabetes are unable to follow or do not
follow this regimen, they put themselves at risk of blindness, loss of
limbs and have an increased chance of heart disease, kidney failure and
stroke. Therefore, preventive services for people with diabetes has the
potential to save a great deal of money that would otherwise go for
hospitalizations or acute care costs--not to mention a great deal of
unnecessary pain and suffering.
Congress recently took a number of important steps to improve
Medicare coverage of preventive care for diabetics. Prior to the
enactment of the balanced budget amendment in 1997, Medicare covered
diabetics' self-maintenance education services in inpatient or
hospital-based settings and in limited outpatient settings,
specifically hospital outpatient departments or rural health clinics.
Medicare did not, however, cover education services if they were given
in any other outpatient setting, such as a doctor's office. Moreover,
while Medicare did cover the cost of blood-testing strips used to
monitor the sugar in the blood, the program did so for only Type I
diabetics who require insulin to control their disease.
The balanced budget amendment of 1997 rightly expanded Medicare to
cover all outpatient self-management training services as well as
providing uniform coverage of blood-testing strips for all persons with
diabetes. With the enactment of the balanced budget amendment, we made
significant progress toward improving care for our senior citizens with
diabetes. However, there is more that we can do.
External insulin infusion pumps have proven to be much more effective
in controlling blood glucose levels than conventional therapy injection
therapy for insulin-dependent diabetics whose blood sugar levels are
difficult to control. Such pumps help them to avoid the expensive
complications and suffering resulting from uncontrolled diabetes.
However, Medicare currently does not cover these pumps, even when they
have been prescribed as medically necessary by a patient's physician.
I am, therefore, pleased to introduce today legislation, the Medicare
Insulin Pump Coverage Act of 1999, that would expand Medicare coverage
to include insulin infusion pumps for certain Type I diabetics.
External insulin pumps are neither investigational nor experimental.
They are widely accepted by health care professionals involved in
treating parties with diabetes. Moreover, studies such as the Diabetes
Control and Complications Trial sponsored by the National Institutes of
Health have established that maintaining blood glucose levels as close
to normal as possible is the key to preventing devastating
complications from this disease. For many patients, the use of an
infusion pump is the only way that optimal blood glucose control can be
safely achieved. That is why virtually all other third
[[Page S2671]]
party payers--including many State Medicaid Programs and CHAMPUS--cover
the device. Moreover, there is precedent in Medicare since it currently
does cover infusion pumps for numerous cancer drugs, as well as for
pain control medications.
The need for this legislation became apparent to me based on my
attempts to help one of my constituents, Nona Frederich of Raymond, ME.
She is an example of the Medicare patient who would benefit from the
pump but who is currently being denied what is for her the most
effective form of glucose control. Nona has been an insulin-dependent
diabetic since 1962. Because of her extremely volatile insulin
sensitivity, her diabetic specialists placed her on an insulin infusion
pump in January 1982. Until she reached the age of 65, the cost of the
pump and operating supplies were underwritten in large part by her
insurer.
In March of 1995 it became necessary for Nona to purchase a new
infusion pump. However, by this time, she was now on Medicare and
Medicare refused to cover it, even though her doctor had prescribed it
as clearly being medically necessary. With the help of my Portland
office, the Frederichs worked their way through the Health Care
Financing Administration system of appeals. Unfortunately, in January
of last year, they received final notification of a negative decision.
Their only remaining option is to file a civil suit which they are
simply not in a position to pursue.
The Frederichs literally have notebooks filled with documentation of
the procedures they followed and the evidence they submitted. Moreover,
they personally paid close to $5,000 in original pump costs and
supplies for which they received no reimbursement. For a Medicare
beneficiary with a limited income, these kinds of costs would be
devastating and would place the pump--the medically necessary pump--
completely out of reach. In such a case, they would be forced to return
to or to continue with conventional insulin therapy which simply just
may not be as effective in controlling blood sugar. As a consequence,
these patients are admitted to the hospital over and over again, and
Medicare now picks up the bill--a far greater bill than if Medicare had
simply paid for the pump in the first place.
While potentially devastating for an individual, the financial costs
to Medicare of expanding coverage to include the insulin infusion pump
will not be great. Under my bill, the pump would have to be prescribed
by a physician and the beneficiary would have to be a Type I diabetic
experiencing severe swings of high and low blood glucose levels. Of the
estimated 3 million Medicare beneficiaries with diabetes, only about 5
percent are Type I, or insulin dependent; of these, it is estimated
that the pump would be appropriate for only about 4 percent. Mr.
President, what a difference it would make for those individuals.
The American Diabetes Association, the Juvenile Diabetes Foundation,
the American Association of Clinical Endocrinologists and the American
Association of Diabetes Educators, as well as officials at the Centers
for Disease Control, all have advocated expanding Medicare to cover
insulin infusion pumps for Type I diabetics who otherwise would have
great difficulty in controlling their blood sugars.
I am pleased to introduce legislation today to do just that. I urge
all of my colleagues to join me in support of this important
legislation, legislation that would not cost much money but would
enrich the lives of those diabetics who need these pumps immeasurably.
I ask unanimous consent that the text of the legislation as well as
the letters of support from the American Diabetes Association and the
Juvenile Diabetes Foundation be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 617
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Medicare Insulin Pump
Coverage Act of 1999''.
SEC. 2. COVERAGE OF INSULIN PUMPS UNDER MEDICARE.
(a) Inclusion as Item of Durable Medical Equipment.--
Section 1861(n) of the Social Security Act (42 U.S.C.
1395x(n)) is amended by inserting before the semicolon the
following: ``, and includes insulin infusion pumps (as
defined in subsection (uu)) prescribed by the physician of an
individual with Type I diabetes who is experiencing severe
swings of high and low blood glucose levels and has
successfully completed a training program that meets
standards established by the Secretary or who has used such a
pump without interruption for at least 18 months immediately
before enrollment under part B''.
(b) Definition of Insulin Infusion Pump.--Section 1861 of
the Social Security Act (42 U.S.C. 1395x) is amended by
adding at the end the following:
``Insulin Infusion Pump
``(uu) The term `insulin infusion pump' means an infusion
pump, approved by the Federal Food and Drug Administration,
that provides for the computerized delivery of insulin for
individuals with diabetes in lieu of multiple daily manual
insulin injections.''.
(c) Payment for Supplies Relating to Infusion Pumps.--
Section 1834(a)(2)(A) of the Social Security Act (42 U.S.C.
1395m(a)(2)(A)) is amended--
(1) in clause (ii), by striking ``or'' at the end;
(2) in clause (iii), by inserting ``or'' at the end; and
(3) by inserting after clause (iii) the following:
``(iv) which is an accessory used in conjunction with an
insulin infusion pump (as defined in section 1861(uu)),''.
(d) Effective Date.--The amendments made by this section
shall apply with respect to items of durable medical
equipment furnished under title XVIII of the Social Security
Act (42 U.S.C. 1395 et seq.) on or after the date of
enactment of this Act.
____
Statement by the American Diabetes Association in Support of the
Medicare Insulin Pump Coverage Act
The American Diabetes Association lends its full support to
passage of the Medicare Insulin Pump Coverage Act in
Congress. Effective maintenance of blood glucose levels is
imperative if people with diabetes are to forestall the onset
of the complications of diabetes, such as cardiovascular
disease, end-stage renal disease, blindness or amputations.
External insulin infusion pumps have proven to be more
effective in controlling blood glucose levels than
conventional injection therapy for insulin-dependent people
whose blood sugar levels are difficult to control. Many,
including those who have had access to the insulin pump prior
to becoming a Medicare beneficiary, need access to the pump
for better control. Medicare access to the insulin pump will
help Medicare enhance the quality of life for people with
diabetes and contain the costly complications of diabetes.
Diabetes is a disease that requires a lifetime of medical
care and self-treatment. People with diabetes must have full
access to supplies, equipment and education. The Diabetes
Control and Complications Trial (DCCT), a 10-year clinical
study conducted by the National Institutes of Health, proved
that maintaining blood glucose levels as close to normal as
possible is the key to preventing the devastating
complications associated with diabetes.
``Unfortunately, many health insurance plans, including
Medicare, do not provide comprehensive coverage for the
supplies and education people with diabetes need to control
their disease,'' said Gerald Bernstein, MD, President of the
American Diabetes Association. ``For example, Medicare does
not provide coverage for the insulin pump,'' Bernstein added.
According to the Health Care Financing Administration
(HCFA), the federal agency responsible for administering the
Medicare program, the insulin pump is not covered because
``there [is no] medical advantage to using controlled
continuous insulin infusion (via infusion pump) rather than
conventional multiple daily injections to treat diabetes.''
Bernstein added, ``The use of the insulin pump has proven
to be effective for individuals who, despite multiple insulin
injections and frequent monitoring, have unstable diabetes.
For many of these individuals, use of the insulin pump is a
life-enhancing decision.'' The Medicare Insulin Pump Coverage
Act will require Medicare to cover insulin pumps for
beneficiaries with Type 1 diabetes who are experiencing
severe swings of high and low blood glucose levels or who
have used an insulin pump without interruption for at least
18 months immediately before enrollment under Medicare Part
B.
According to Bernstein, ``This legislation is especially
important for those individuals who face the prospect of
losing their coverage of the pump upon entering Medicare. Now
is the right time for HCFA to move forward with coverage of
the insulin pump in these limited circumstances.''
For these reasons the American Diabetes Association
strongly supports The Medicare Insulin Pump Coverage Act and
applauds Senator Susan M. Collins (R-ME) for introducing this
important legislation. Passage of the Collins Bill will
dramatically improve the lives of those striving to maintain
a healthy life, while at the same time, reducing costly
hospital stays.
[[Page S2672]]
____
Juvenile Diabetes Foundation International, The Diabetes
Research Foundation,
Washington, DC, March 8, 1999.
Hon. Susan M. Collins,
U.S. Senate,
Washington, DC.
Dear Senator Collins: On behalf of the Juvenile Diabetes
Foundation International (JDF), I want to express our strong
support for your insulin pump legislation which would ensure
that pumps are covered by the Medicare program.
Diabetes is a devastating disease that affects 16 million
Americans and 120 million people worldwide. A new case of
diabetes is diagnosed every forty seconds, and diabetes kills
one American every three minutes. Diabetes is the leading
cause of kidney failure, adult blindness, and nontraumatic
amputations, and it substantially increases the risk of
having a heart attack or stroke. In all, the life expectancy
of people with diabetes averages 15 years less than that of
people without diabetes.
As you know, people with diabetes who use insulin take up
to five injections daily to treat their diabetes. However,
injection therapy does not work will for many diabetes
sufferers. In these and other cases, insulin pumps are an
effective and critical tool in assisting persons with
diabetes in more closely controlling blood glucose levels.
Better control of blood glucose levels is likely to lead to
fewer health complications from diabetes, and will result in
enormous cost savings to the Medicare system where one in
four Medicare dollars presently goes to pay for health care
of people with diabetes.
Senator Collins, the JDF applauds you for introducing this
important legislation to help our nation's seniors and other
Medicare-covered Americans have access to cost-effective and
life-improving medical supplies such as the insulin pump.
Sincerely,
Leah J. Mullin,
Chairman, JDF Government Relations.
______
By Mr. MOYNIHAN:
S. 618. A bill to provide for the declassification of the journal
kept by Glenn T. Seaborg while serving as chairman of the Atomic Energy
Commission; to the Committee on Energy and Natural Resources.
private relief bill
Mr. MOYNIHAN. Mr. President, I rise today to introduce
legislation I introduced in the 105th Congress to require the
Department of Energy to return the journal Dr. Glenn T. Seaborg kept as
Chairman of the Atomic Energy Commission. Dr. Glenn T. Seaborg, who
died on February 25 at the age of 86, was the co-discoverer of
plutonium, and led a research team which created a total of nine
elements, all of which are heavier than uranium. For this he was
awarded the Nobel Prize in Chemistry in 1951 which he shared with Dr.
Edwin M. McMillan.
Dr. Seaborg kept a journal while chairman of the AEC. The journal
consisted of a diary written at home each evening, correspondence,
announcements, minutes, and the like. He was careful about classified
matters; nothing was included that could not be made public, and the
journal was reviewed by the AEC before his departure in 1971.
Nevertheless, more than a decade after his departure from the AEC, the
Department of Energy subjected two copies of Dr. Seaborg's journals--
one of which it had borrowed--to a number of classification reviews. He
came unannounced to my Senate office in September of 1997 to tell me of
the problems he was having getting his journal released, saying it was
something he wished to have resolved prior to his death. Although he
has left us, it is fitting that his journal should finally be returned
to his estate. This bill would do just that. I introduced a bill to
return to Dr. Seaborg his journal in its original, unredacted form but
to no avail, so bureaucracy triumphed. It was never returned. Now he
has left us without having the satisfaction of resolving the fate of
his journal. It is devastating that a man who gave so much of his life
to his country was so outrageously treated by his own
government.
______
By Mr. WELLSTONE:
S. 619. A bill to provide for a community development venture capital
program; to the Committee on Small Business.
THE COMMUNITY DEVELOPMENT VENTURE CAPITAL ASSISTANCE ACT OF 1999
Mr. WELLSTONE. Mr. President, I rise today to introduce the
Community Development Venture Capital Assistance Act of 1999. This bill
would create a demonstration program to promote small business
development and entrepreneurship in economically distressed communities
through support of Community Development Venture Capital funds.
While our nation has enjoyed a historic period of economic growth
over the past several years, there are concentrated pockets of poverty,
in rural and urban areas, which have not experienced development of
jobs and opportunities for its residents. Small businesses, which have
led America's economic expansion, have not been able to gain a toehold
in these areas. A major reason for this lackluster performance is
inability for entrepreneurs in economically distressed areas to access
capital.
No business can grow without infusions of capital for equipment
purchases, to conduct research, to expand capacity, or to build
infrastructure. At some point all successful ventures outgrow
incubation in the entrepreneur's garage or living room; additional
staff must be hired and the complexity of managing supply and demand
increases. Yet it is clear that throughout the country there are small
business owners who are being starved of the capital necessary to take
this step. They have viable businesses or ideas for businesses but
cannot fully transform their aspirations into reality because of this
financial roadblock.
Traditional venture capital firms are not meeting the need for equity
capital in disadvantaged communities. Such investments are risky in the
best of circumstances, but they can and do succeed with adequate time
and attention. These communities need patient investors who are willing
to work closely with small business owners to realize a financial
return over the long term. Often, the investments needed are smaller
than those made by traditional sources. Throughout America,
organizations known as Community Development Venture Capital funds are
making these kinds of equity investments in communities and are
producing excellent results.
CDVC funds make equity investments in small businesses for two
purposes: to reap a financial return to the fund, and to generate a
social benefit for the community through creation of well paying jobs.
This ``double bottom line'' is what makes CDVC funds unique. There are
around 30 CDVC funds currently operating throughout the country, in
both rural and urban areas. These funds are demonstrating the success
of socially conscious investment and entrepreneurial solutions to
social and economic problems.
My own state of Minnesota is home to a good example of a seasoned,
and successful CDVC fund: Northeast Ventures Corporation of Duluth. NEV
serves a seven county rural area and focuses on creating good jobs in
high value-added industries. NEV targets 50% of the jobs created
through investments to women, and to low income and structurally
unemployed persons. They also require portfolio companies to offer
employees an opportunity to participate in a health care plan to which
the employer contributes. The following story illustrates an NEV
achievement:
In 1990 a group of entrepreneurs approached Northeast Ventures about
setting up a car wash equipment manufacturing facility in Tower, a town
of 508 people, in one of the poorest parts of Northeastern Minnesota.
While NEV thought that the market opportunity was attractive, the
company, called Powerain, had an incomplete business plan and lacked a
Chief Operating Officer. NEV also felt that the business provided a
good opportunity to create jobs and bring some economic vitality to an
area that needed it badly.
Other assistance was needed before NEV could provide financing for
the effort. Northeast worked closely with Powerain's founders to revise
the business plan and identify a strong CEO candidate for the company.
Northeast also invested $200,000 in equity into the business.
Northeast's involvement did not stop after making its first
investment. NEV staff conducted the strategic planning sessions of
Powerain and continue to be essential in developing the company's
strategic plan. They assist in identifying the need for key personnel;
recruit the necessary staff; and are integral in qualifying the short
list of candidates. Over a multi year period, NEV has talked daily with
the Powerain CEO regarding subjects as diverse as sales, distributor
relationships and the financial structure of loans. Over an
[[Page S2673]]
eight year period, NEV has assisted Powerain in all subsequent rounds
of financing totaling $826,932.
Powerain had a record sales year in 1998 and is expecting another
record year in 1999. The company currently employs 20 full-time people,
and expects to increase that number significantly in the future. The
company provides ongoing training to its staff and entry level
positions begin at $8 an hour--with full benefits. Most employees earn
well in excess of $10 per hour. Success stories such as these are
typical for CDVC funds.
The purpose of the Community Development Venture Capital Assistance
Act is to grow the capacity of the CDVC fund ``industry'' by
authorizing a $20 million four year demonstration program through the
Small Business Administration. First, the bill would authorize $15
million for SBA grants to private, nonprofit organizations with
expertise in making venture capital investments in poor communities.
This will provide hands-on technical assistance to the new and emerging
CDVC funds. These grants could also be used to fund the start up and
operating costs of new CDVC organizations. Grants to these intermediary
organizations would be matched dollar for dollar with funds raised by
the intermediary from non-Federal sources. Second, the bill would
provide $5 million in SBA grants to colleges, universities, and other
firms or organizations--public or private--to create and operate
training programs, intern programs, a national conference, and academic
research and study dealing with community development venture capital.
This legislation would provide support for entrepreneurial solutions
to economic development issues in rural and urban America. It will
allow the Federal government to promote what's working in distressed
communities. Last year, the Senate approved a nearly identical
provision as part of an SBA technical amendments bill. I was pleased
that the demonstration program enjoyed bipartisan support last year and
I hope it will again.
______
By Mr. SARBANES (for himself, Mr. Warner, Mrs. Murray, and Mr.
Campbell):
S. 620. A bill to grant a Federal charter to Korean War Veterans
Association, Incorporated, and for other purposes; to the Committee on
the Judiciary.
legislation to grant a federal charter to korean war veterans
association
Mr. SARBANES. Mr. President, today I am introducing
legislation together with Senators Warner, Campbell, and Murray, which
would grant a Federal Charter to the Korean War Veterans Association,
Incorporated. This legislation recognizes and honors the 5.7 million
Americans who fought and served during the Korean War for their
struggles and sacrifices on behalf of freedom and the principles and
ideals of our Nation.
Mr. President, the year 2000 will mark the 50th Anniversary of the
Korean War. In June 1950 when the North Korea People's Army swept
across the 38th Parallel to occupy Seoul, South Korea, members of our
Armed Forces--including many from the State of Maryland--immediately
answered the call of the U.N. to repel this forceful invasion. Without
hesitation, these soldiers travelled to an unfamiliar corner of the
world, and joining an unprecedented multinational force comprised of 22
countries, they risked their lives to protect freedom. The Americans
who led this international effort were true patriots who fought with
remarkable courage.
In battles such as Pork Chop Hill, the Inchon Landing and the frozen
Chosin Reservoir, which was fought in temperatures as low as 57 degrees
below 0, they faced some of the most brutal combat in history. By the
time the fighting had ended, 8,177 Americans were listed as missing or
prisoners of war--some of whom are still missing--and 54,246 Americans
had died, the most of any American war in the 20th Century. One hundred
and thirty-one Korean War Veterans were awarded the Nation's highest
commendation for combat bravery, the Medal of Honor. Ninety-four of
these soldiers gave their lives in the process. There is an engraving
on the Korean War Veterans Memorial which reflects these losses and how
brutal a war this was. It reads, ``Freedom is not Free.'' Yet, as a
nation, we have done little more than establish this memorial to
publicly acknowledge the bravery of those who fought the Korean War.
The Korean War has been termed by many as the ``Forgotten War.'' Mr.
President, freedom is not free. We owe our Korean War Veterans a debt
of gratitude. Granting this federal charter--at no cost to the
government--is a small expression of appreciation that we as a nation
can offer to these men and women, one which will enable them to work as
a unified front to ensure that the ``Forgotten War'' is forgotten no
more.
The Korean War Veterans Association was originally incorporated on
June 25, 1985. Since its first annual reunion and memorial service in
Arlington, Virginia, where its members decided to develop a national
focus and strong commitment to service, the association has grown
substantially to a membership of over 25,000. At present, the KWVA is
the only veterans organization comprised exclusively of Korean War
Veterans and one of the few such organizations of its size without a
federal charter. Over the years, it has established a strong record of
service and commitment to fellow Korean War veterans, ranging from its
efforts on behalf of Project Freedom to its successful effort to
construct a national Korean War Veterans Memorial on the Mall. A
federal charter would allow the Association to continue and grow its
mission and further its charitable and benevolent causes. Specifically,
it will afford the Korean War Veterans' Association the same status as
other major veterans organizations and allow it to participate as part
of select committees with other congressionally chartered veterans and
military groups. A federal charter will also accelerate the
Association's ``accreditation'' with the Department of Veterans Affairs
which will enable its members to assist in processing veterans' claims.
Mr. President, the Korean War Veterans have asked for very little in
return for their service and sacrifice. I urge my colleagues to join me
in supporting this legislation and ask that the text of the measure be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 620
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. GRANT OF FEDERAL CHARTER TO KOREAN WAR VETERANS
ASSOCIATION, INCORPORATED.
(a) Grant of Charter.--Part B of subtitle II of title 36,
United States Code, is amended--
(1) by striking the following:
``CHAPTER 1201--[RESERVED]''; and
(2) by inserting the following:
``CHAPTER 1201--KOREAN WAR VETERANS ASSOCIATION, INCORPORATED
``Sec.
``120101. Organization.
``120102. Purposes.
``120103. Membership.
``120104. Governing body.
``120105. Powers.
``120106. Restrictions.
``120107. Duty to maintain corporate and tax-exempt status.
``120108. Records and inspection.
``120109. Service of process.
``120110. Liability for acts of officers and agents.
``120111. Annual report.
``Sec. 120101. Organization
``(a) Federal Charter.--Korean War Veterans Association,
Incorporated (in this chapter, the `corporation'),
incorporated in the State of New York, is a federally
chartered corporation.
``(b) Expiration of Charter.--If the corporation does not
comply with the provisions of this chapter, the charter
granted by subsection (a) expires.
``Sec. 120102. Purposes
``The purposes of the corporation are as provided in its
articles of incorporation and include--
``(1) organizing, promoting, and maintaining for benevolent
and charitable purposes an association of persons who have
seen honorable service in the Armed Forces during the Korean
War, and of certain other persons;
``(2) providing a means of contact and communication among
members of the corporation;
``(3) promoting the establishment of, and establishing, war
and other memorials commemorative of persons who served in
the Armed Forces during the Korean War; and
``(4) aiding needy members of the corporation, their wives
and children, and the widows and children of persons who were
members of the corporation at the time of their death.
``Sec. 120103. Membership
``Eligibility for membership in the corporation, and the
rights and privileges of
[[Page S2674]]
members of the corporation, are as provided in the bylaws of
the corporation.
``Sec. 120104. Governing body
``(a) Board of Directors.--The board of directors of the
corporation, and the responsibilities of the board of
directors, are as provided in the articles of incorporation
of the corporation.
``(b) Officers.--The officers of the corporation, and the
election of the officers of the corporation, are as provided
in the articles of incorporation.
``Sec. 120105. Powers
``The corporation has only the powers provided in its
bylaws and articles of incorporation filed in each State in
which it is incorporated.
``Sec. 120106. Restrictions
``(a) Stock and Dividends.--The corporation may not issue
stock or declare or pay a dividend.
``(b) Political Activities.--The corporation, or a director
or officer of the corporation as such, may not contribute to,
support, or participate in any political activity or in any
manner attempt to influence legislation.
``(c) Loan.--The corporation may not make a loan to a
director, officer, or employee of the corporation.
``(d) Claim of Governmental Approval or Authority.--The
corporation may not claim congressional approval, or the
authority of the United States, for any of its activities.
``Sec. 120107. Duty to maintain corporate and tax-exempt
status
``(a) Corporate Status.--The corporation shall maintain its
status as a corporation incorporated under the laws of the
State of New York.
``(b) Tax-Exempt Status.--The corporation shall maintain
its status as an organization exempt from taxation under the
Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).
``Sec. 120108. Records and inspection
``(a) Records.--The corporation shall keep--
``(1) correct and complete records of account;
``(2) minutes of the proceedings of its members, board of
directors, and committees having any of the authority of its
board of directors; and
``(3) at its principal office, a record of the names and
addresses of its members entitled to vote on matters relating
to the corporation.
``(b) Inspection.--A member entitled to vote on matters
relating to the corporation, or an agent or attorney of the
member, may inspect the records of the corporation for any
proper purpose, at any reasonable time.
``Sec. 120109. Service of process
``The corporation shall have a designated agent in the
District of Columbia to receive service of process for the
corporation. Notice to or service on the agent is notice to
or service on the Corporation.
``Sec. 120110. Liability for acts of officers and agents
``The corporation is liable for the acts of its officers
and agents acting within the scope of their authority.
``Sec. 120111. Annual report
``The corporation shall submit an annual report to Congress
on the activities of the corporation during the preceding
fiscal year. The report shall be submitted at the same time
as the report of the audit required by section 10101 of this
title. The report may not be printed as a public document.''.
(b) Clerical Amendment.--The table of chapters at the
beginning of subtitle II of title 36, United States Code, is
amended by striking the item relating to chapter 1201 and
inserting the following new item:
``1201. Korean War Veterans Association, Incorporated.....120101''.....
______
By Mr. ROCKEFELLER (for himself, Mr. Dorgan, Mr. Burns, Mr.
Roberts, and Mr. Conrad):
S. 621. A bill to enhance competition among and between rail carriers
in order to ensure efficient rail service and reasonable rail rates in
any case in which there is an absence of effective competition; to the
Committee on Commerce, Science, and Transportation.
RAILROAD COMPETITION AND SERVICE IMPROVEMENT ACT OF 1999
Mr. ROCKEFELLER. Mr. President, I rise today to introduce a
bill that will, twenty years after the Staggers Rail Act, finally
deliver the benefits of market competition to the railroad industry and
its customers--the Railroad Competition and Service Improvement Act of
1999. I am joined in this effort by Senators Dorgan, Burns, Roberts and
Conrad, and I thank them for their leadership on this bill for the
benefit not only of rail customers but also the future health of the
railroads themselves.
As many of my colleagues know, there are certain issues that I feel
especially strongly about, and all of them are issues that have far-
reaching consequences for the State of West Virginia and for our
nation. Competition--or the lack thereof--in the railroad industry is
one of those issues.
In the United States we have a railroad industry that has gone from
63 class I railroads in 1976 to 9 class I railroads today, of which
only 5 control the vast majority of rail freight across the country: 2
in the East, 2 in the West, and one down the Mississippi River in the
middle of the country. We also have a railroad industry with service
problems so expansive and so disruptive that grain and chemical and
other manufacturers have lost tens of millions of dollars in recent
years, must operate with the vulnerability of future service crises,
and have no choice but to constantly be on the lookout for better and
more reliable transportation options. And we have a railroad industry
that seems continually to assert undue and anti-competitive power over
its customers in increasing local monopoly situations.
I believe the railroad industry is at a crossroads. It's been nearly
twenty years since the Staggers Rail Act of 1980, which limited the
regulation of the railroad industry by allowing government intervention
only where a railroad customer has no effective means of competition.
By many measures, the railroads are in far better financial health
today, and rail freight transportation is far more safe, stable and
efficient than in the dire days of the 1970s.
Yet despite these apparent gains, shippers across the nation are
broadly discontent. As a significant new report from the General
Accounting Office confirms, rail shippers believe that in the aftermath
of Staggers--and in direct conflict with the intent of Staggers--we
have in fact created a system that very heavily, and with tremendous
financial consequences, favors monopoly railroads and shuts shippers
out of the regulatory process that is supposed to protect them.
We have put in place a system that leaves 70 percent of shippers with
poorer rate and service options than they need to run their businesses
cost-efficiently, and a system in which nearly 60 percent of shippers
fear retaliation from the railroads should they access the rate relief
process--a process which costs between $500,000 and $3 million per
complaint and can take up to 16 years to get a resolution. The GAO
makes crystal clear that the rate relief process for shippers with no
competitive rail options is too costly and too time-consuming to be
effective.
Now some would say that customers always want more and better
service, always want lower prices, and always are unhappy--so we should
discount their railroad customer concerns and leave the system alone.
They would say that the railroads are happy with the status quo, so
Staggers must be working well.
To my mind, that's a cop-out. The ``shipping community'' is the
backbone of our nation--they are our farmers, our auto and chemical
manufacturers, our utilities, our coal miners, our forest products
workers--and they're not just crying wolf. They have legitimate
problems with a skewed system, and they deserve the Congress' full
attention and a commitment to deal with increased concentration and a
developing pattern of service problems by infusing some degree of real
and effective competition into the railroad industry as a whole.
The legislation we introduce today is designed to do just that: it
will jump-start competition and uphold the common carrier obligation by
requiring railroads to quote a rate on any given segment; it will
reduce monopoly routing by facilitating terminal access; it will
streamline the rate relief process by simplifying the market dominance
test; it will restore the integrity of the Surface Transportation Board
by eliminating its annual revenue adequacy pronouncements; it will
bolster rail access for small farmers by creating a targeted rate
relief process; and it will require the railroads to file monthly
service performance reports with the Department of Transportation,
similar to what we require of the airline industry, so that rail
customers have access to the information they need to make good
railroad and transportation choices.
We intend to offer this legislation as an amendment to the Surface
Transportation Board reauthorization legislation later this year, and
we especially look forward to working with our colleagues on the
Commerce and Agriculture Committees to that end.
[[Page S2675]]
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 621
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Railroad Competition and
Service Improvement Act of 1999''.
SEC. 2 PURPOSES.
The purposes of this Act are--
(1) to clarify the rail transportation policy of the United
States by requiring the Surface Transportation Board to
accord greater weight to the need for increased competition
between and among rail carriers and consistent and efficient
rail service in its decision making;
(2) to eliminate unreasonable barriers to competition among
rail carriers serving the same geographic areas and ensure
that smaller carload or intermodal shippers are not precluded
from accessing rail systems due to volume requirements;
(3) to ensure reasonable rail rates for captive rail
shippers;
(4) to provide relief for certain agricultural facilities
lacking effective competitive alternatives; and
(5) to remove unnecessary regulatory burdens from the rate
reasonableness procedures of the Surface Transportation
Board.
SEC. 3. FINDINGS.
The Congress finds that:
(1) Prior to 1976, the Interstate Commerce Commission
regulated most of the rates that railroads charged shippers.
The Railroad Revitalization and Regulatory Act (1976) and the
Staggers Rail Act (1980) limited the regulation of the rail
industry by allowing the Interstate Commerce Commission to
regulate rates only where railroads have no effective
competition and established the Interstate Commerce
Commission's process for resolving rate disputes.
(2) In 1976, when the Congress began the process of
railroad deregulation, there were 63 class I railroads in the
United States. By 1997, through mergers and other factors,
the number of class I railroads shrunk to nine.
(3) The nine class I carriers accounted for more than 90
percent of the industry's freight revenue and 71 percent of
the industry's mileage operated in 1997.
(4) Rail industry consolidation has diminished competition,
creating an even greater dependence upon a rate relief
process through a regulatory body such as the Surface
Transportation Board.
(5) Agricultural, chemical, and utility industries in
particular rely heavily upon rail transportation, and
unreasonable rail rates and inadequate service have a
dramatic impact on these important industries.
(6) According to a report issued by the General Accounting
Office, ``. . . [t]he Surface Transportation Board's standard
procedures for obtaining rate relief are highly complex and
time-consuming'' and the General Accounting Office estimates
that over ``70 percent [of shippers] believe that the time,
complexity, and costs of filing complaints are barriers that
often preclude them from seeking relief.''
(7) The General Accounting Office analyzed all 41 rate
complaints filed with the Interstate Commerce Commission and
its successor, the Surface Transportation Board, since 1990
and found that each complaint cost shippers between $500,000
to $3 million apiece and took between a few months and 16
years to resolve.
(8) The General Accounting Office surveyed over 700
shippers and found that--
(A) 75 percent of the shippers believed that they are
overcharged with unreasonable rates and
(B) over 70 percent of the shippers believed that the time,
complexity, and costs of filing complaints create
unsurmountable barriers and therefore preclude them form
pursuing the rate relief they are entitled to under the law.
(9) The General Accounting Office survey of shippers
identified the following barriers to obtaining rate relief
under the current process:
(A) The costs associated with filing complaints outweighs
the benefits of winning relief.
(B) The rate complaint process is too complex and too
lengthy.
(C) Developing the stand-alone revenue-to-variable cost
model is too costly.
(D) Most shippers believe that the STB is most likely to
decide in favor of the railroad.
(E) The discovery process is too difficult because the
shipper is dependent upon the railroad for all the necessary
data.
(F) Responding to the railroads requests for discovery is
too difficult and time consuming.
(G) Shippers fear reprisal from the railroad.
(H) The Surface Transportation Board filing fee is too
high.
(10) According to the General Accounting Office report, the
vast majority of shippers believe that the following changes
in the rate relief process are necessary to provide them with
the ability to seek the rate relief:
(A) The Surface Transportation Board's time limit for
deciding a rate relief case should be shortened.
(B) The complaint fee required upon filing should be
eliminated or reduced.
(C) The market dominance requirement should be simplified.
(D) Mandatory binding arbitration should be used to resolve
rate disputes.
(E) The Surface Transportation Board's jurisdictional
threshold of 180% revenue-to-variable cost should be lowered.
(11) According to the General Accounting Office report,
shippers believe that increasing competition in the railroad
industry would lower rates and diminish the need for a rate
complaint process. Proposals to increase railroad competition
identified in the report include the following:
(A) Require the STB to grant trackage rights; require
reciprocal switching at the nearest junction or interchange
upon request of a shipper or competing railroad; and increase
rail access for shortline and regional railroads.
(B) Overturn the STB's ``bottle neck'' decision by
requiring railroads to quote a rate for all route segments.
(12) Consolidation in the railroad industry has diminished
competition, thwarting the intended objectives of
deregulation to allow competition to lower rates and improve
service.
(13) The rate protection intended for shippers without
effective competition has been de-railed by a complex,
costly, and time-consuming maze of discovery, findings, and
appeals that take years and cost millions of dollars.
(14) Because of diminished rail competition, a rate relief
process plagued with unsurmountable barriers and blanket
antitrust immunity unique to the railroad industry, captive
shippers have no effective recourse under the current system.
SEC. 4. CLARIFICATION OF RAIL TRANSPORTATION POLICY.
Section 10101 of title 49, United States Code, is amended--
(1) by inserting ``(a) In General.--'' before ``In
regulating''; and
(2) by adding at the end the following:
``(b) Primary Objectives.--The primary objectives of the
rail transportation policy of the United States shall be--
``(1) to ensure effective competition among rail carriers
at origin and destination;
``(2) to maintain reasonable rates in the absence of
effective competition; and
``(3) to maintain consistent and efficient rail
transportation service to shippers, including the timely
provision of railcars requested by shippers; and
``(4) to ensure that smaller carload and intermodal
shippers are not precluded from accessing rail systems due to
volume requirements.''.
SEC. 5. FOSTERING RAIL TO RAIL COMPETITION.
(a) Establishment of Rate.--Section 11101(a) of title 49,
United States Code, is amended by inserting after the first
sentence the following: ``Upon the request of a shipper, a
rail carrier shall establish a rate for transportation and
provide service requested by the shipper between any two
points on the system of that carrier where traffic
originates, terminates, or may reasonably be interchanged. A
carrier shall establish a rate and provide service upon such
request without regard to--
``(1) whether the rate established is for only part of a
movement between an origin and a destination;
``(2) whether the shipper has made arrangements for
transportation for any other part of that movement; or
``(3) whether the shipper currently has a contract with any
rail carrier for part or all of its transportation needs over
the route of movement.
``If such a contract exists, the rate established by the
carrier shall not apply to transportation covered by the
contract.''.
(b) Review of Reasonableness of Rates.--Section 10701(d) of
title 49, United States Code, is amended--
(1) by redesignating paragraph (3) as paragraph (4); and
(2) by inserting after paragraph (2) the following:
``(3) A shipper may challenge the reasonableness of any
rate established by a rail carrier in accordance with
sections 11101(a) and 10701(c) of this title. The Board shall
determine the reasonableness of the rate so challenged
without regard to--
``(A) whether the rate established is for only part of a
movement between an origin and a destination;
``(B) whether the shipper has made arrangements for
transportation for any other part of that movement; or
``(C) whether the shipper currently has a contract with a
rail carrier for any part of the rail traffic at issue,
provided that the rate prescribed by the Board shall not
apply to transportation covered by such a contract.''.
SEC. 6. SIMPLIFIED RELIEF PROCESS FOR CERTAIN AGRICULTURAL
SHIPPERS.
(a) Limitation of Fees.--Nothwithstanding any other
provision of law, the Surface Transportation Board shall not
impose fees in excess of $1,000 for services collected from
an eligible facility in connection with rail maximum rate
complaints under part 1002 of title 49, Code of Federal
Regulations.
(b) Simplified Rate and Service Relief.--Section 10701 of
title 49, United States Code, is amended by adding at the end
thereof the following:
``(e) Simplified Rates and Services.--
``(1) In general.--Notwithstanding any other provision of
law, a rail carrier may not charge a rate for shipments from
or to an eligible facility which results in a revenue-to-
[[Page S2676]]
variable cost percentage, using system average costs, for the
transportation service to which the rate applies that is
greater than 180 percent.
``(2) Acceptance of requests.--Nothwithstanding any other
provision of law, a rail carrier shall accept all requests,
for grain service from an eligible facility up to a maximum
of 110 percent of the grain carloads shipped from or to the
facility in the immediately preceding calendar year. If, in a
majority of instances, a rail carrier does not in any 45-days
period, supply the number of grain cars so ordered by an
eligible facility or does not initiate service within 30 days
of the reasonably specified loading date, the eligible
facility may request that an alternative rail carrier provide
the service using the tracks of the original carrier. If the
alternative rail carrier agrees to provide such service, and
such service can be provided without substantially impairing
the ability of the carrier whose tracks reach the facility to
use such tracks to handle its own business, the Board shall
order the alternative carrier to commence service and to
compensate the other carrier for the use of its tracks. The
alternative carrier shall provide reasonable compensation to
the original carrier for the use of the original carrier's
tracks.
``(3) Cancellation penalties.--A carrier may accept car
orders under paragraph (2) subject to reasonable penalties
for service requests that are canceled by the requester. If
the carrier fills such orders more than 15 days after the
reasonably specified loading date, the carrier may not assess
a penalty for canceled car orders.
``(4) Damages.--A rail carrier that fails to provide
service under the requirements of paragraph (2) is liable for
damages to an eligible facility that does not have access to
an alternative carrier, including lost profits, attorney's
fees, and any other consequences attributable to the
carrier's failure to provide the ordered service. A claim for
such damage may be brought in an appropriate United States
District Court or before the Board.
``(5) Timetable for board proceeding.--The Board shall
conclude any proceeding brought under this subsection no
later than 180 days from the date a complaint is filed.
``(6) Definitions.--In this subsection:
``(A) Eligibility facility.--The term `eligible facility'
means a shipper facility that--
``(i) is the origin or destination for not more than 4,000
carloads annually of grain as defined in section 3(g) of the
United States Grain Standards Act (7 U.S.C. 75(g));
``(ii) is served by a single rail carrier at its origin;
``(iii) has more than 60 percent of the facility's inbound
or outbound grain and grain product shipments (excluding the
delivery of grain to the facility by producers), measured by
weight or bushels moved via a rail carrier in the immediately
preceding calendar year; and
``(iv) the rate charged by the rail carrier for the
majority of shipments of grain and grain products from or to
the facility, excluding premium for special service programs,
results in a revenue-to-variable cost percentage, using
system average costs, for the transportation to which the
rate applies that is equal to or greater than 180 percent.
``(B) Reasonable compensation.--The term `reasonable
compensation' shall mean an amount no greater than the total
shared costs of the original carrier and the alternative
carrier incurred, on a usage basis, for the provision of
service to an eligible facility. If the carriers are unable
to agree on compensation terms within 15 days after the
facility requests service from the alternative carrier, the
alternative carrier or the eligible facility may request the
Board to establish the compensation and the Board shall
establish the compensation within 45 days after such request
is made.
``(C) Original carrier.--The term `original carrier' means
a rail carrier which provides the only rail service to an
eligible facility using its own tracks or provides such
service over an exclusive lease of the tracks serving the
eligible facility.
``(D) Alternative carrier.--The term `alternative carrier'
means a rail carrier that is not an original carrier to an
eligible facility.''.
SEC. 7. COMPETITIVE RAIL SERVICE IN TERMINAL AREAS.
(a) Trackage Rights.--Section 11102(a) of title 49, United
States Code, is amended--
(1) by striking ``may'' in the first sentence and inserting
``shall'';
(2) by inserting [as a new second sentence] after
``business.'' the following: ``In making this determination,
the Board shall not require evidence of anticompetitive
conduct by the rail carrier from which access is sought.'';
and
(3) by striking ``may establish'' in the next-to-last
sentence and inserting ``shall.''
(b) Reciprocal Switching.--Section 11102(c)(1) of title 49,
United States Code, is amended--
(1) by striking ``may'' in the first sentence and inserting
``shall'';
(2) by inserting after ``service.'' the following: ``In
making this determination, the Board shall not require
evidence of anticompetitive conduct by the rail carrier from
which access is sought.''; and
(3) by striking ``may establish'' in the last sentence and
inserting ``shall''.
SEC. 8. SIMPLIFIED STANDARDS FOR MARKET DOMINANCE.
Section 10707(d)(1)(A) of title 49, United States Code, is
amended by adding at the end thereof the following: ``The
Board shall not consider evidence of product or geographic
competition in making a market dominance determination under
this section.''.
SEC. 9. REVENUE ADEQUACY DETERMINATIONS.
(a) Rail Transportation Policy.--Section 10101(3) of title
49, United States Code, is amended by striking ``revenues, as
determined by the Board;'' and inserting ``revenues;''.
(b) Standards for Rates.--Section 10701(d)(2) is amended by
striking ``revenues, as established by the Board under
section 10704(a)(2) of this title'' and inserting
``revenues.''.
(c) Revenue Adequacy Determinations.--Section 10704(a) of
title 49, United States Code, is amended--
(1) by striking ``(a)(1)'' and inserting ``(a)''; and
(2) by striking paragraphs (2) and (3).
SEC. 10. RAIL CARRIER SERVICE QUALITY PERFORMANCE REPORTS.
(a) In General.--Chapter 5 of subtitle I of title 49,
United States Code, is amended by adding at the end thereof
the following:
``subchapter iii. performance reports
``Sec. 541. RAIL CARRIER SERVICE QUALITY PERFORMANCE REPORTS
``(a) In General.--The Secretary of Transportation shall
require, by regulation, each rail carrier to submit a monthly
report to the Secretary, in such a uniform format as the
Secretary may be regulation prescribe, containing information
about--
``(1) its on-time performance;
``(2) its car availability deadline performance;
``(3) its average train speed;
``(4) its average terminal dwell time;
``(5) the number of its cars loaded (by major commodity
group); and
``(6) such other aspects of its performance as a rail
carrier as the Secretary may require.
``(b) Information Furnished to STB; the Public.--The
Secretary shall furnish a copy of each report required under
subsection (a) to the Surface Transportation Board no later
than the next business day following its receipt by the
Secretary, and shall make each such report available to the
public.
``(c) Annual Report to the Congress.--The Secretary shall
transmit to the Congress an annual report based upon
information received by the Secretary under this section.
``(d) Definitions.--In this section, the definitions in
section 10102 apply.''.
(b) Conforming Amendment.--The chapter analysis for chapter
5 of subtitle I of title 49, United States Code, is amended
by adding at the end thereof the following:
``Subchapter III. Performance Reports
``541. Rail carrier service quality performance reports''.
Mr. DORGAN. Mr. President, I am very pleased to join Senators
Rockefeller, Burns, and Roberts today in introducing the ``Railroad
Competition and Service improvement Act of 1999.'' This legislation is
designed to stimulate railroad competition and level the field for
shippers who need relief from unreasonable rates. Earlier this month,
the General Accounting Office (GAO) issued a report on the barriers to
rate relief that prevent small captive shippers from unreasonable
rates. That report, outlined below, identified a number of remedies
that would give captive shippers a fighting chance at rate relief. This
legislation closely mirrors the GAO's findings and if enacted, would go
a long way to improve rail service and promote competition.
In my home state of North Dakota over fifty percent of the state
economy is dependent upon agriculture. Our ability to move its
agricultural production to distant markets affects large sectors of
North Dakota's economy. Over eighty percent of all the grain shipped
out-of-state moves by rail and 97 percent of North Dakota's grain
elevators have access to only one railroad. Those who survive on
farming and those who live in states like North Dakota whose main
business is agriculture have a great deal at stake when it comes to
rail transportation. Overcharges cost us millions of dollars a year,
adding a substantial cost to a product that already operates at very
low margins.
Since virtually all of the shippers in North Dakota are subject to
monopoly service, our farmers and county grain elevators are paying a
premium for a service they cannot afford to live without. Rail service
in this country is supposed to be competitive where the forces of
competition determine shipping rates and in the absence of competition,
the STB is suppose to have a process that will protect captive shippers
from overcharges. Unfortunately, rail competition is more of an
exception than the rule and the process that is designed to protect
captive shippers is so costly and time-consuming that shippers are
without recourse; left to the mercy of monopoly railroads who not only
determine whether or not their product will get to market but
[[Page S2677]]
also how much they will charge to deliver that product. This is a
circumstance that must be addressed as the Congress considers the
reauthorization of the STB this year.
Prior to 1976, the ICC regulated almost all the rates that railroads
charged shippers. The Railroad Revitalization and Regulatory Act (1976)
and the Staggers Rail Act (1980) limited the regulation of the rail
industry by allowing the ICC to regulate rates only where railroads
have no effective competition and established the ICC's process for
resolving rate disputes.
At the time when the Congress began the process of railroad
deregulation (1976) there were 63 class I railroads in the United
States. By 1997, through mergers and other factors, the number of class
I railroads shrunk to nine. These nine carriers accounted for more than
90 percent of the industry's freight revenue and 71 percent of the
industry's mileage operated in 1997. In July, 1998, the STB approved
another Class I merger by splitting the assets of Conrail between CSX
and Norfolk Southern (reducing the Class I count to 8 once
implemented). Another merger between Canadian National Railway and
Illinois Central is pending before the STB.
This consolidation has diminished competition, creating an even
greater dependence upon a rate relief process through a regulatory body
such as the STB. Agricultural, utility, and chemical industries in
particular rely heavily upon rail transportation and the cost of
unreasonable rail rates has a dramatic impact on these important
industries.
According to GAO/RCED-99-46, ``Railroad Regulation: Current Issues
Associated With the Rate Relief Process,'' February 1999, ``[t]he
Surface Transportation Board's standard procedures for obtaining rate
relief are highly complex and time-consuming'' and the GAO estimates
that over ``70 percent [of shippers] believe that the time, complexity,
and costs of filing complaints are barriers that often preclude them
from seeking relief.'' The report documents that the process for a
small captive shipper to obtain rate relief under the current
regulatory and legal framework is broken and unworkable. The reasons
for these barriers are multiple:
(A) Historical regulatory precedence has created a complex web of
hurdles an barriers building an insurmountable maze for a small shipper
to seek rate relief;
(B) contradictory statutorily directives based on a statute that was
designed to protect the financial health of railroads while at the same
time attempt to protect the needs of shippers to challenge unreasonable
rates; and
(C) the time and cost entailed in filing a rate complaint has reached
absurd levels, far outweighing the potential savings that could be
achieved through a successful challenge to an unreasonable rate.
The STB rate complaint process involves an up front filing fee cost
of $54,500 ($5,400 for the simplified guidelines)--plus the costs of
pursuing the case through years of negotiation through a complex maze
of discovery; evidentiary hearings; rebuttals; and administrative
appeals.
Seeking rate relief under the current process is very costly to
shippers. The rate relief cases analyzed by the GAO cost shippers
between $500,000 to $3 million each to file and wade through the
process and took between a few months and 16 years to resolve. For
example, the McCarty Farms case took over 16 years to resolve and ended
up in Federal District Court.
The GAO surveyed over 700 shippers and found that (a) 75 percent of
the shippers believed that they are overcharged with unreasonable
rates; and (b) over 70 percent of the shippers believed that the time,
complexity, and costs of filing complaints create unsurmountable
barriers and therefore preclude them from pursuing the rate relief they
are entitled to under the law. (It is not surprising that the GAO found
that the railroad monopolies unanimously support the current process
and see no need for change.)
The report reviewed all the rate relief filings pending before the
STB (and its predecessor, the ICC) since 1990. The GAO found that only
41 rate relief filings were either pending or have been filed since
1990. About half of these complaints were settled outside of the STB's
process and therefore dismissed. Of the remaining complaints, 7 were
decided in favor of the railroad and only 2 have been decided in favor
of the shipper; 9 are still pending; and 5 were dismissed without
settlement.
The GAO also found that, in 1997, only 18 percent of the total
tonnage shipped via rail in this country is subject to rate regulation
by the STB. About 70 percent of all shipments is exempt because it is
shipped under contract and the STB has exempted another 12 percent.
Thus, the GAO's analysis of barriers to shippers only relates to a
portion of the total tonnage of rail shipments in the United States.
The ICC Terminations Act required the STB to develop simplified
procedures for rate complaint filings. While the STB has developed
those simplified procedures, the railroad industry has already
challenged them in court and not a single shipper has filed a complaint
under these new procedures since the STB issued the simplified
guidelines in December 1996.
The GAO survey of shippers found that the vast majority of shippers
(over 70%) believe that the STB rate relief process is too costly,
complex, and time consuming. Shippers identified the following barriers
to obtaining rate relief under the current process:
The legal costs associated with filing complaints outweighs the
benefits of winning relief.
The rate complaint process is too complex and takes too long.
Developing the stand alone revenue to variable cost model (shippers
are required to calculate that the rate they are charged exceeds 180%
of the revenue to variable cost of a hypothetical railroad to provide
them service) is too costly.
Most shippers believe that the STB is most likely to decide in favor
of the railroad so the effort is not worth its costs.
The discovery process is too difficult because the shipper is
dependent upon the railroad for all the necessary data to calculate the
revenue to variable cost ratio.
Responding to the railroad requests for discovery is too difficult
and time consuming (note: the GAO identified instances in its analysis
of the 41 cases filed since 1990 that railroads often extended the
complaint process through lengthy discovery requests).
Fear of reprisal from the railroads.
The STB filing fee in itself is too high to consider filing a rate
complaint.
The GAO report found that shippers desire to see (1) a more
simplified rate complaint process and (2) increased competition in the
railroad industry that would lower rates and diminish the need for a
rate complaint process.
According to the GAO report, the vast majority of shippers believe
that the following changes in the rate relief process are necessary to
provide them with the ability to seek the rate relief--
The STB's time limit for deciding a rate relief case should be
shortened (the current limit is 16 months).
The complaint fee required upon fining should be eliminated or
reduced.
The market dominance requirement should be simplified.
Use mandatory binding arbitration between shippers and railroads to
resolve rate disputes.
Lower the STB's jurisdictional threshold from the current level of
180% of revenue to variable cost.
While shippers contend that the rate complaint process needs serious
repair, shippers believe that increasing competition in the railroad
industry would do more to lower rates and diminish the need for a rate
complaint process. Proposals to increase railroad competition
identified in this report include the following:
Require the STB to grant trackage rights; require reciprocal
switching at the nearest junction or interchange upon request of a
shipper or competing railroad; and increase rail access for shortline
and regional railroads.
Overturn the STB's ``bottle neck'' decision by requiring railroads to
quote a rate for all route segments.
Consolidation in the railroad industry has diminished competition,
thwarting the intended objectives of deregulation to allow competition
to lower rates and improve service. The rate protection intended for
shippers without effective competition has been de-railed by a complex;
costly; and
[[Page S2678]]
time consuming web of discoveries, findings, and appeals that take
years and cost millions of dollars. The result is that we have more
captive shippers whose only recourse for rate protection is an
impossible process that is simply not worth the expense. This cannot
continue.
Small shippers are forced to take on well financed railroad
corporations populated with hundreds of lawyers who can use the complex
system to make rate relief an impossible maze of endless filings,
appeals, and delays. In the GAO's survey, shippers emphasized the time,
cost, and complexity involved in filing a rate complaint as significant
enough barriers as to prevent them from attempting to seek rate relief
through the STB process. Since the railroad industry has blanket
antitrust immunity--which is a status not enjoyed by another industry--
captive shippers have no recourse and will remain overcharged unless
Congress takes some action to level the field.
I urge my colleagues to support this legislation. Attached is a
summary of the bill's provisions. I ask unanimous consent that the
summary be printed in the Record.
There being no objection, the summary was ordered to be printed in
the Record, as follows:
Railroad Competition and Service Improvement Act--Summary
section 1. short title
The ``Railroad Competition and Service Improvement Act of
1999''
section 2. purposes
The purpose of the legislation is to require the STB to
accord greater weight to increase rail competition; to
eliminate unreasonable barriers to competition; ensure
reasonable rates in the absence of competition; and remove
unnecessary regulatory barriers that impede the ability of
rail shippers to obtain rate relief.
section 3. findings
The Congress finds that the railroad industry has become
concentrated and that rail industry consolidation has
diminished competition, creating a greater dependence upon
the Surface Transportation Board's rate relief process, whose
procedures for obtaining rate relief, according to a report
issued by the General Accounting Office, ``are highly complex
and time-consuming.''
The GAO also found that--
75 percent of the shippers believed that they are
overcharged with unreasonable rates and over 70 percent of
the shippers believed that the time, complexity, and costs of
filing complaints create unsurmountable barriers and
therefore precluded them from pursuing the rate relief they
are entitled to under the law;
The STB rate relief process cost shippers between $500,000
to $3 million per complaint and took between a few months and
16 years to resolve;
Over ``70 percent [of shippers] believe that the time,
complexity, and costs of filing complaints are barriers that
often preclude them from seeking relief''; and
While shippers contend that the rate complaint process
needs serious repair, shippers believe that increasing
competition in the railroad industry would do more to lower
rates and diminish the need for a rate complaint process.
Consolidation in the railroad industry has diminished
competition, thwarting the intended objectives of
deregulation to allow completion to lower rates and improve
service. The rate protection intended for shippers without
effective competition has been de-railed by a complex;
costly; and time consuming web of discoveries, findings, and
appeals that take years and cost millions of dollars.
section 4. clarification of transportation policy
The legislation requires the STB to give priority to the
following policy objectives:
(1) ensuring effective competition among rail carriers;
(2) maintaining reasonable rates where there is an absence
of effective competition;
(3) maintaining consistent and efficient service to
shippers, including the timely provision of railcars
requested by shippers.
section 5. fostering rail competition
The bill overturns the STB's ``bottle neck'' decision that
has been disappointing for shippers. Under the legislation,
rail carriers would have to quote a rate for transportation
over a segment of line upon the request of a shipper. If the
rail carrier refuses, the STB shall establish the rate.
section 6. relief for certain agricultural shippers
Places a $1,000 limit on filing fees on rate complaints
filed by small, captive agricultural shippers; establishes a
simplified and streamlines rate complaint process for small,
captive agricultural shippers; and would allow a small,
captive agricultural shipper to request service from another
railroad or file for damages when their carrier fails to
honor railcar orders.
section 7. competitive rail service in terminal areas
Eliminates the requirement that evidence of anti-
competitive conduct be produced when the STB determines the
outcome of requests to allow another railroad access to rail
customer facilities within an area served by the tracks of
more than one railroad.
section 8. simplified standards for market dominance
The market dominance standard (which establishes the terms
in which rail shippers may have standing to challenge the
reasonableness of a rate) is simplified in a goal to minimize
the regulatory burdens confronting captive rail shippers.
Under this legislation, a rail carrier will be presumed to
have market dominance if the shipper is served by only one
rail carrier and if the rail shipper can demonstrate that the
carrier's rate is above 180% revenue to variable cost.
[Currently, a shipper must demonstrate--in addition to the
above criteria--there is no geographic or product
competition. This legislation would eliminate those hurdles
for the shipper.]
section 9. revenue adequacy determinations
Repeals the revenue adequacy test [which is a determination
by the STB on the financial fitness of the railroads and
creates another obstacle for shippers seeking rate relief
from the STB].
section 10. service performance reports
Requires the railroads to submit service performance
reports to the Department of Transportation.
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