[Congressional Record Volume 146, Number 18 (Thursday, February 24, 2000)]
[Senate]
[Pages S799-S820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTION
By Mr. SPECTER (for himself, Mr. Torricelli, Mr. Thurmond, Mr.
Biden, Mr. Grassley, Mr. Feingold, Mr. Helms, Mr. Schumer, and
Mr. Sessions):
S. 2089. A bill to amend the Foreign Intelligence Surveillance Act of
1978 to
[[Page S800]]
modify procedures relating to orders for surveillance and searches for
foreign intelligence purposes, and for other purposes; to the Committee
on the Judiciary.
the counterintelligence reform act of 2000
Mr. SPECTER. Mr. President, I have sought recognition to introduce
legislation which would correct procedures under the Foreign
Intelligence Surveillance Act. I offer this bill on behalf of Senator
Torricelli, Senator Thurmond, Senator Biden, Senator Grassley, Senator
Feingold, Senator Helms, Senator Schumer, and Senator Sessions.
This is legislation which is designed to correct a very pressing
problem. This bill refines the Foreign Intelligence Surveillance Act to
enable the appropriate investigations of espionage to avoid the very
serious mistakes which were made during the investigation of Dr. Wen Ho
Lee. The references to Dr. Lee's investigation are made only for the
purpose of illustrating the procedural problems which this legislation
is designed to correct. The determination as to whether or not Mr. Wen
Ho Lee is guilty will remain for the court of competent jurisdiction
where he has been indicted.
There was information released into the public domain at Mr. Lee's
bail hearing which underscores the tremendous importance of this
particular case. Dr. Stephen Younger, assistant laboratory director for
nuclear weapons at Los Alamos, testified at Dr. Lee's bail hearing on
December 13, 1999, and said:
These codes and their associated databases and the input
file, combined with someone that knew how to use them, could,
in my opinion, in the wrong hands, change the global
strategic balance.
It is hard to have any item of greater importance than changing the
global strategic balance.
Dr. Younger further testified:
They enable the possessor to design the only objects that
could result in the military defeat of America's conventional
forces. . . They represent the gravest possible security risk
to . . . the supreme national interest.
Again, it is hard to find more forceful language as to the
seriousness of this particular matter than the potential military
defeat of America's conventional forces.
During the course of this investigation, there were very serious time
lapses while the FBI sought to get a warrant on Dr. Lee under the
Foreign Intelligence Surveillance Act.
The FBI made the FISA request in June of 1997. It was refused by the
Department of Justice on August 12, 1997, and then FBI Director Freeh
sent FBI Assistant Director John Lewis to talk personally to Attorney
General Reno. Attorney General Reno then appointed a Department of
Justice subordinate named Daniel Seikaly, who reviewed the matter and
rejected it. Attorney General Reno, as she conceded in testimony
presented to the Judiciary Committee on June 8, 1999, did not follow up
on the matter, leaving this very important request rejected.
The proposed legislation would require that when the Director of the
FBI makes a request for a FISA warrant that the Attorney General
personally must make the decision as to whether the FISA warrant
request should be submitted to the court for action. The legislation
further provides that when the Attorney General declines to submit the
FISA application to the court, the rejection must be in writing. This
would give the FBI Director a roadmap, so to speak, as to what
additional information is necessary to have the warrant request
submitted to the court.
After the Department of Justice declined to submit the FISA warrant
to the court, the FBI investigation of the case was inactive for some
16 months. It took from August of 1997 to December of 1997 for the FBI
Headquarters to send a letter regarding the FISA request to the FBI
Albuquerque Field Office, where it lay dormant until November of 1998.
From the time the FISA application was not forwarded to the court to
the time the FBI office in Albuquerque finally acted, some 16 months
elapsed. These 16 months were very crucial with respect to the
activities of Dr. Lee.
This legislation further provides that when the Attorney General
rejects a FISA application in writing, the Director of the FBI has the
obligation to personally supervise the matter.
The Department of Energy then initiated a polygraph of Dr. Lee, in a
very unusual way, that has since been criticized by the President's
Foreign Intelligence Advisory Board. The Department of Energy
represented that Dr. Lee passed the polygraph when, in fact, he had
not. The Secretary of Energy even made an announcement on national
television to the effect that Dr. Lee had passed the polygraph when, in
fact, he had not. That threw the FBI off course, thinking that a passed
polygraph exonerated the suspect. This legislation provides that an
agency such as the Department of Energy may not take action on a
polygraph, that these matters are to be left to the FBI, which has the
paramount authority to investigate these matters.
The FBI then conducted another polygraph, but not until February 10,
1999, some 6 weeks after the polygraph he allegedly passed. Even though
Dr. Lee failed this second polygraph, no action was taken to terminate
Dr. Lee until March 8. In the interim, he deleted many of the files
that are in issue. These deletions took place on January 20, February
9, 11, 12, and 17, all to the potential prejudice of the United States.
Dr. Lee did not have a search warrant executed until April 9, which is
a very long lapse before any official action had been taken.
The legislation further provides that when a suspect is left in place
for the purpose of the investigation, the FBI must make this request in
writing and that to that agency. The agency, such as the Department of
Energy, must then formulate a plan within 30 days to structure how that
suspect will be left in place while minimizing the exposure of
classified information to that person.
One of the reasons given by the Department of Justice in declining to
go forward with the FISA application was that Dr. Lee was not
``currently engaged'' in objectionable activities--to use mild words.
This bill changes that requirement to probable cause on the totality of
the circumstances.
That is a brief summary of what this legislation would do. It is the
view of the sponsors of this bill that it is very important for it to
move forward so that on pending espionage investigations we do not have
the lapses that occurred in this very important case.
I am pleased to note that all the members of the Judiciary
Subcommittee have joined in cosponsoring this legislation. I thank my
colleague, Senator Torricelli, for his cooperation. Senator Thurmond,
Senator Grassley, and Senator Sessions have all cosponsored among the
Republican members, as have Senators Feingold and Schumer, in addition
to Senator Torricelli. Senator Biden was consulted specially and is a
cosponsor because he was the author of the Foreign Intelligence
Surveillance Act back in 1978. Senator Helms has asked to be added as a
cosponsor, which he has.
The subcommittee has had some substantial difficulty in ``birth''
pains; it has not really been born, to the extent that the subcommittee
has not been funded. We have worked really from our own personal
staffs. We have had three fellows and one detailee. We have completed a
very lengthy detailed report, some 65 pages, which is the product of
extraordinary work by Mr. Doman McArthur of my staff, in collaboration
with Senator Torricelli's staff and the staffs of others. We have gone
through the 65-page report with a fine-tooth comb to be sure that it is
precise, exact, and does not make any disclosures as to any classified
information.
The subcommittee has deferred holding hearings on the Wen Ho Lee
matter, which had been scheduled for December, at the specific request
of Director Freeh. Director Freeh met with Torricelli and myself and
requested that the hearings on Dr. Lee not go forward substantively,
which might cause some problem with the pending prosecution. We do have
hearings scheduled on the legislation for March 7, 8 and 21. I have
already informed FBI Director Freeh of our intentions to proceed with
those hearings, which will be on the substance as to how the act should
be reformed. We have given notice to Director Freeh that we would
appreciate his presence as a witness. He has said he would be glad to
attend.
That is a very brief statement of a very complex matter. It is my
hope we will have the final clearance from the
[[Page S801]]
Department of Justice to be able to file the full 65-page report which
will elaborate upon the brief summary which I have presented.
I am delighted to yield to my very distinguished colleague from New
Jersey, Senator Torricelli, the ranking member of the subcommittee.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. TORRICELLI. Mr. President, I thank Senator Specter for yielding
time to me. I also thank him for his perseverance and diligence in
working on this issue over the course of the last several months.
I also express particular thanks to Senator Biden who in reviewing
this legislation made very important additions and allowed us to
proceed on a bipartisan basis for what I think is an important and
worthwhile change in the laws dealing with foreign intelligence
surveillance.
The origins of this legislation--part of the Judiciary Committee's
oversight--is the question of how the Department of Justice handled
allegations of Chinese espionage at our most important National
Laboratories.
The focus of this review, of course, had to do with the case of Dr.
Wen Ho Lee, a scientist who was charged in December with 59 counts of
illegally removing secrets from computer information at the Los Alamos
Laboratory. It appears that Dr. Lee was the subject of interest or
investigations for espionage for over 17 years. He was dealing with the
most important weapons secrets possessed by his government critical to
the security of the United States.
It would be difficult for anyone in this Government to explain to the
American people why, despite 17 years of investigation and some reasons
for considerable doubt all during this time, he was permitted to
continue with his job and retain access to highly classified
information.
Much is still to be learned about this case. A criminal case is
proceeding and an investigation. That is for, in some instances, others
to deal with. That does not mean we do not already know some things
that can change the conduct in this Government and the laws under which
we govern ourselves. We have learned through this investigation that
this was all made possible by a series of procedural and investigative
errors that gave Dr. Lee this opportunity to download this highly
classified material to an unsecured computer.
In truth, we do not yet know whether or not, when this unguarded
material was in an unsecured computer, in fact it got to foreign agents
or other interested parties other than people with proper clearance in
the U.S. Government. We do not know. We may never know. But we do know
this after interviewing many witnesses and thousands of documents:
There was a startling, almost unbelievable failure of coordination and
communication between the Department of Justice, the FBI, and the
Department of Energy in dealing with this matter, and only through that
lack of coordination was an allegation of possible espionage able to
lead to 17 years of continued access and the possibility that this
information was compromised.
As early as 1982, the FBI was aware that Dr. Lee was engaged in
suspicious activities. Yet both at that time and in the years that
followed there was no action taken to limit access to classified
material. The Department of Energy detected Dr. Lee transferring an
inordinate number of systems from a secured system to an unsecured
system in 1993 and 1994. Personnel responsible for reporting that
information failed to do so.
In 1997, the FBI had an opportunity to stop Dr. Lee, but they were
stymied by the denial of the Department of Justice of a request
submitted by the FBI for a warrant to further investigate Dr. Lee. It
is this failure that brings us here today.
The evidence supporting a FISA request for their warrant was
overwhelming. It had been building for years. No single piece of
evidence may have been sufficient to warrant a criminal case, but they
were more than sufficient to raise a proper level of suspicion to
support the issuing of a warrant.
Now we know that the request for this warrant, a FISA application,
was never even considered by the Attorney General of the United States.
When the Director of the Federal Bureau of Investigation, Mr. Freeh,
sent a personal representative to meet with the Attorney General to
express his concern about the warrant application, which he was right
and proper to do, the Attorney General delegated the matter to a
subordinate who was unfamiliar with the matter and who had never
processed a similar request--no experience, no knowledge, no
involvement--and the final disposition of the matter, therefore, was
predictable. The request was denied. The warrant was not issued, and an
opportunity potentially to either apprehend someone committing a
criminal act or to have prevented further damage, if any occurred, was
lost.
Unfortunately, this problem was compounded in that when the FBI was
denied this warrant, in my judgment, the matter should have been
appealed but it was allowed to languish, and then further hampered by
the Department of Energy which conducted a polygraph of Dr. Lee, and
then, incredibly, unbelievably incorrectly concluded that he had passed
the test.
It is a series of compounded errors of procedure and judgment. It is
difficult for the Congress to legislate good judgment for the proper
execution of responsibilities. If we cannot do so, we can at least
design the laws to provide for greater accountability.
That is, indeed, what is being done by my colleagues. Under the
legislation we are now introducing, Senator Specter and I have written
amendments to the Foreign Intelligence Surveillance Act to provide that
upon the personal request of the Director of the FBI, the Attorney
General must personally review the FISA requests--no subordinate, no
uninformed associate. This is a matter of national security. The
Attorney General has no greater responsibility than protecting the
secrets of the U.S. Government. This matter belongs on the Attorney
General's desk, and under this legislation that is where it will rest.
There are those who may argue that making the Attorney General
directly responsible will somehow provide an avalanche of work, that
they will not be able to deal with all of these matters. Appropriately,
the legislation has been designed so this provision is triggered only
by the personal request from the Director of the FBI--no subordinate,
no associate, no one else in the Government. So the number of cases
will be extremely limited. But when asked by the Director of the FBI,
one person, and one person in this Government alone, will have direct
responsibility.
Second, the legislation requires that if the Attorney General decides
not to forward a FISA application to the court, that decision must be
communicated in writing to the FBI Director along with specific
recommendations as to what investigative steps should be undertaken to
meet the probable cause requirements. Matters of national security on
this level cannot fall in departmental cracks--not get lost somewhere
between Justice and the FBI. This will ensure that in those cases when
the Attorney General has personally rejected this request the reasons
will be stated, the FBI will be told why and then given a chance to
return having met the appropriate probable cause standard.
Third, the legislation requires that the FBI Director must personally
supervise the implementation of the Attorney General's recommendations
to ensure once again that in the highest levels of the U.S. Government
these unusual but critical cases of national security dealing with
foreign espionage are dealt with not by subordinates, but that this
Congress can hold people for which it has responsibility, oversight,
and votes to confirm--such as the Attorney General and the FBI
Director--directly accountable.
I believe these are appropriate responses to what we have learned to
date out of this investigation. But I conclude by saying both what this
legislation is and what it is not.
This legislation is not an attempt to lower the probable cause
standard for what is required for a warrant and a FISA application.
Probable cause is a standard of law. It should be taken seriously. The
rights of no citizen should be violated by an intrusive or curious
government. The standard remains.
What is being changed here is accountability, not a lessening of
civil
[[Page S802]]
liberties. We simply want to know that the standard which has always
existed of probable cause will be used, that procedures will be
followed, that people will be held accountable, not that the Government
is any more or any less intrusive. The probable cause standard remains
the cornerstone of American liberties to ensure that the Government has
reason and merit as a matter of law to involve itself in the privacy of
our citizens.
I proudly offer this legislation with Senator Specter. I believe it
is a good and appropriate response. I thank the Senator for his
patience in the drafting. I listened to my colleagues, particularly on
this side of the aisle, with relatively modest changes we have
recommended, all of which the Senator has incorporated. I look forward
to the committee and then the Senate enacting this legislation.
Mr. BIDEN. FISA, the Foreign Intelligence Surveillance Act of 1978,
is a very vital part of our arsenal to combat terrorism and espionage.
For 20 years, it has enabled the FBI to keep track of major threats to
our security while preserving the constitutional rights of Americans.
Basically, it provides for a sort of super search warrant, allowing the
FBI, under certain unique circumstances, to eavesdrop upon activities,
after showing a probable cause to a Federal judge, without having to
disclose this eavesdropping in ways that they would have to under a
normal warrant for a wiretap or a physical search.
FISA has been very useful to deal with terrorism, and also with
espionage cases.
Senator Specter has undertaken an effort to look into what may or may
not have transpired at our National Laboratories in the celebrated case
of Wen Ho Lee and others. This has been the subject of some very
legitimate discussion, and occasionally some partisan discussion. But
knowing Senator Specter as long as I have, I do not doubt his desire to
look into these cases that have transpired, and the consequences of any
leakage of classified information from any of our National
Laboratories, for the primary purpose of seeing to it that it does not
happen again, if in fact it did happen, as well as to determine what
did happen.
Senator Specter and Senator Torricelli have been looking into these
recent cases, especially, as I said, the case of Wen Ho Lee at Los
Alamos National Laboratory. As a result of that inquiry, Senator
Specter is proposing what I think is a very important series of
sensible amendments to this act we call FISA. I am pleased to cosponsor
this bill, having been an original author of that legislation in 1978,
along with Birch Bayh and others.
The initial bill with which Senator Specter approached me and others
had a few areas where I thought it could be improved. I wish to
publicly thank Senator Specter for agreeing to the changes I suggested
in his proposed legislation.
One of the dilemmas that exists, in the debate about whether the
Attorney General and the Justice Department and/or the FBI were reading
from the same page in the hymnal on how to investigate the Wen Ho Lee
case, is the issue of whether the FBI communicated enough information
to the Attorney General so that, under the reading of the FISA law, the
Attorney General could conclude that there was sufficient reason to get
a search or electronic surveillance court order. There has been a
little bit of disagreement, at a minimum, between the FBI and the
Justice Department as to who said what, when, and what request was made
when. It has led to a serious political controversy. I think it has
also led, as a consequence, on both sides of the aisle, to some
posturing and partisanship about a significant national security issue.
One of Senator Specter's most important ideas in this bill, one which
is going to seem commonsensical to most Americans, is to make it clear
that if something is of such consequence that the Director of the FBI
believes there should be a FISA hearing and authority granted to allow
the FBI to use invasive measures to eavesdrop upon conversations and/or
get records, for example, from computer data and the like, if it is
that important, the FBI Director can, under this new amendment to FISA,
put that request in writing to the Attorney General and the Attorney
General, whoever that may be, then has to personally sign off or not
sign off, so we avoid this debate that is taking place now about
whether second level people or third level people made the right
judgment or wrong judgment, and whether or not there was any
malfeasance.
So this is a very practical solution. If this legislation had been in
place 3 years ago, 5 years ago, there would be no doubt as to what
happened. Had the FBI said this is critical and this is national
security, the Attorney General personally would have had to say yes or
no. That is where the record is unclear in the Wen Ho Lee case. This
bill would eliminate such doubt in future similar cases if and when
they arise, and they surely will arise.
Section 2 of this bill permits the judge to consider the past
activities of the target of an investigation--that is, the person upon
whom they want to eavesdrop and/or whose records they want to secretly
examine. So, for example, the Attorney General would be able to say, in
a closed FISA hearing: Your Honor, not only do we think this is
justified because of some current activity, but we can show you
evidence that in 1991 they were engaged in this suspicious activity, in
1993 they were engaged in that, in 1995 they were engaged in this,
therefore lending greater credibility to the argument that a FISA court
order should be issued by the judge.
Again, in this Wen Ho Lee case, and other cases that Senator Specter
has examined, there has been discussion of the fact that sometimes
these folks had been under investigation before. Would that not lend
greater weight to the need for this FISA request to be granted? So we
clear that up in this legislation, rather than only allowing the
target's current activity to be brought up.
Section 3 of this proposal requires the FISA court to be told if the
target of a proposed search or surveillance has a relationship with a
Federal law enforcement or intelligence agency. This came up in this
case as well. The case is being investigated. It turns out at some
point one of the persons in the past had been also a source for the
FBI. The FBI had gone to this person and said: Will you be a source for
us, looking into the possibility of some illegal activity? Then that
very person becomes the target, and that very person is never able to
tell, nor does the FBI or the CIA say: By the way, Your Honor, we were
working with them. That is why they went ahead and did the following.
Up to now, when the Federal Government has asked for a FISA court
judge to give this surveillance authority, it has not been required to
say: By the way, Your Honor, this person in the past had worked with us
as a source, as a person cooperating with us.
This is a new and useful protection for Americans, because the
conduct that might seem suspicious could be a result of what the law
enforcement agency had actually asked them to do. It seems only fair to
the target to be able to have that information known to the judge.
This is typical of the Senator from Pennsylvania, that he looks out
for individual rights as well as the interests of law enforcement.
There are several other interesting provisions in this bill,
including some to improve relations between the FBI and other agencies,
and I am sure there will be further refinements in this bill when it is
considered by the Judiciary Committee. The important thing is that
Senator Specter is working, I think effectively and in a bipartisan
manner, to ensure that his inquiry into the Wen Ho Lee case leads to
useful changes and not just to partisan recriminations. I compliment
him on that, because the purpose of oversight is not only to find out
who struck John but, in the national interest, to find the best way to
prevent something such as this from happening again. So I compliment
him and again thank him for acceding to the more than several changes I
asked for in this legislation.
I think the amendments to existing law that this bill will enact are
good amendments. I think America will be well served, and I would argue
that the individual rights of Americans will be in no greater jeopardy
after this passes than they ever were. They are protected; they will
continue to be protected; and some of these changes will
[[Page S803]]
even help to further protect the rights of individual Americans.
I yield the floor.
______
By Mr. CAMPBELL (for himself, Mr. Lott, Mr. Daschle, Mr. Craig,
Mr. Bunning, Ms. Snowe, Mr. Conrad, Ms. Landrieu, Mr. Kerrey,
and Mr. Gregg):
S. 2090. A bill to amend the Internal Revenue Code of 1986 to impose
a 1 year moratorium on certain diesel fuel excise taxes; to the
Committee on Finance.
the america's transportation recovery act of 2000
Mr. CAMPBELL. Mr. President, today I am introducing America's
Transportation Recovery Act of 2000 to address the skyrocketing prices
of fuel which supports our Nation's truckers, farmers, public
transportation, and other users. This bill would temporarily suspend
the Federal excise tax on diesel fuel for 1 year, or until the price of
crude oil is reduced to the December 31, 1999, price.
I am pleased to be joined by many of my colleagues and add as
original cosponsors to this bill both the majority leader, Senator
Lott, and the minority leader, Senator Daschle, as well as Senators
Craig, Feinstein, Conrad, Bunning, Landrieu, and Kerrey of Nebraska.
The current fuel crisis is an example of how a discussion leans
toward economic factors and international price fixing rather than
focusing on the daily effect on American people.
Early this week, as Members know, nearly 300 truck drivers drove from
all over the east coast--in fact, some from as far away as Texas--to
rally at the steps of the Capitol. Their cause was the increasing price
of diesel fuel, which is increasing their costs to the point that many
may go out of business.
I know the trucking life. I put myself through college by driving an
18-wheeler. Just last December, I renewed my CDC driver's license.
Although I don't drive commercially anymore, it does keep me in touch
with the working men and women in the trucking industry. Since I own a
small rig, I know firsthand how the fuel crisis impacts those who
depend on it because my fuel bills have doubled in the last year alone,
as have theirs.
When private citizens give their time to come to Washington, the
issue is not about profit margins, stock prices, or other abstract
matters; it is because they are fighting for their lives. Long-distance
drivers, as Members probably know, need between 200 and 400 gallons of
diesel every 24 hours. Add that to truck payments, permits, insurance,
upkeep, road fees, and the many other costs for independent trucking,
and many are barely scraping by. It is no wonder the price increase is
putting so many out of business. The only way they can survive is to
pass it on to the consumer. Most of them cannot do that because the
small independents are, more often than not, subcontracting to other
firms.
At Tuesday's rally, one driver told me he knew of two men who had
gone bankrupt in the last week alone. Any person viewing the television
coverage of the rally could not help but be moved by the young couple
living in their truck with two small children, both under the age of 3,
because they could not make house payments. Yet another driver told me
he had only $8 to his name and made it here for the rally.
Many people think this probably does not affect them. Think about
this: About 95 percent or more of everything in America, everything we
buy, comes by truck. It may also be on a train, airplane, or ship, but
from the point of origin to the point of delivery is often by truck.
These people don't want handouts; they don't want food stamps; they
don't want to be on welfare; they want to work. If those rigs stop
rolling, very simply, the Nation stops rolling, too.
These trucks don't run on solar energy, as was mentioned this morning
in our Energy Committee hearing by Senator Craig, and they don't run on
wind power; they run on diesel fuel. This problem extends to our
farmers and ranchers. The increased costs to our farmers and ranchers,
coupled with declining commodity prices, makes it very difficult for
them to run a farm.
In past Congresses, we have had to pass emergency agriculture relief
packages which have allowed the smaller producers to receive enough
assistance to get by financially one more year. Now, along with the
truckers in public transportation, farmers will probably see future
diesel prices nearing $2 a gallon as they go into this year's planting
season.
We cannot let this Nation come to a standstill because we are captive
to foreign oil cartels. Not too many years ago, we fought a war in the
Middle East to protect oil-producing countries from the Iraqi invasion.
Our young men and women make up the bulk of the military might for many
nations today. They put their lives on the line to protect some of the
Arab countries against their own cousins, and now we are being repaid
for our generosity by the rising cost of fuel from OPEC.
Certainly, if there is anyone who thinks there is not a national
security component to being 55-percent dependent on foreign oil, they
need to think again. The fact that we are too dependent on foreign oil
and we currently have no national energy policy is a point of
discussion for another day.
Right now, we face a crisis we need to do something about. That is
why I and my colleagues are introducing this bill. This bill will
temporarily suspend the excise tax on diesel fuel for 1 year, which is
24.4 cents a gallon, in an effort to ease the burdens on so many
Americans based on our lack of a national long-term energy policy. This
will help primarily truckers, farmers, and public transportation but in
the long run will help everybody. While it does not address the long-
term problem of our insufficient domestic oil supply, it will provide
emergency temporary relief. I believe it is a modest and yet essential
step.
At a time when our citizens are being shaken down by a foreign oil
cartel and then again by rising taxes, it is somewhat offensive to go
through the same kind of a shakedown twice. The Government is currently
running a surplus, taking in more tax money than we are spending. We
will have several years of surplus money, and I am sure we can afford
to give a short-term break to the hard-working Americans who deliver
our food and take our children to and from school as well as pick up
our garbage.
This particular tax, as I understand, was never supposed to be
permanent. It was imposed as a deficit reduction measure, and we simply
do not have a deficit nor will we have in years to come. I urge my
colleagues to support this legislation with prompt passage, to provide
immediate relief for America's truckers, farmers, and other diesel fuel
users.
I ask unanimous consent the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2090
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 ``America's Transportation
Recovery Act of 2000''.
SEC. 2. 1 YEAR MORATORIUM ON CERTAIN DIESEL FUEL EXCISE
TAXES.
(a) In General.--Section 4081(d) of the Internal Revenue
Code of 1986 (relating to termination) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively,
(2) by inserting after paragraph (1) the following new
paragraph:
``(2) Diesel fuel.--The rate of tax specified in subsection
(a)(2)(A)(iii) with respect to diesel fuel shall be--
``(A) zero during the 1 year period beginning on the date
of the enactment of this paragraph, and
``(B) 4.3 cents per gallon after September 30, 2005.'', and
(3) by striking ``clauses (i) and (iii) of subsection
(a)(2)(A)'' in paragraph (1) and inserting ``subsections
(a)(2)(A)(i) and (a)(2)(A)(iii) with respect to kerosene''.
(b) Conforming Amendments.--
(1) Subclause (I) of section 4041(a)(1)(C)(iii) of the
Internal Revenue Code of 1986 (relating to rate of tax on
certain buses) is amended by striking ``shall be 7.3 cents
per gallon (4.3 cents per gallon after September 30, 2005).''
and inserting ``shall be--
``(aa) zero during the 1 year period beginning on the date
of the enactment of the American Transportation Recovery Act
of 2000,
``(bb) 7.3 cents per gallon after the end of the 1 year
period under item (aa), and before October 1, 2005, and
``(cc) 4.3 cents per gallon after September 30, 2005.''.
(2) Section 4081(c)(6) of such Code is amended by inserting
``(other than paragraph (5))'' after ``subsection''.
[[Page S804]]
(3) Section 6412(a)(1) of such Code is amended--
(A) by inserting ``(the date of the enactment of the
American Transportation Recovery Act of 2000, in the case of
diesel fuel)'' after ``October 1, 2005'' both places it
appears,
(B) by inserting ``(the date which is 6 months after the
date of the enactment of such Act, in the case of diesel
fuel) after ``March 31, 2006'' both places it appears, and
(C) by inserting ``(the date which is 3 months after the
date of the enactment of such Act, in the case of diesel
fuel) after ``January 1, 2006''.
(4) Section 6427(f)(4) of such Code is amended by inserting
``(during the 1 year period beginning on the date of the
enactment of the American Transportation Recovery Act of
2000, in the case of diesel fuel)'' after ``September 30,
2007''.
(c) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall take effect on the date
of the enactment of this section.
(2) Decrease in Crude Oil Prices.--If the Secretary of
Treasury determines that the average refiner acquisition
costs for crude oil are equal to or less than such costs were
on December 31, 1999, the amendments made by this section
shall cease to take effect and the Internal Revenue Code
shall be administered as if such amendments did not take
effect.
______
By Mrs. FEINSTEIN:
S. 2091. A bill to amend the Act that authorized construction of the
San Luis Unit of the Central Valley Project, California, to facilitate
water transfers in the Central Valley Project; to the Committee on
Energy and Natural Resources.
The Construction of the San Luis Unit of the Central Valley Projects
Mrs. FEINSTEIN. Mr. President, today I introduce a bill to amend the
legislation that authorized construction of the San Luis Unit of the
Central Valley Project in California. Enactment of this bill would
allow water districts in the San Luis Unit of the Central Valley
Project to supplement their federal water supplies with purchases of
water from the State Water Project. At present, federal law prohibits
the delivery of non-federal water to districts in the San Luis Unit
until certain conditions are met.
The San Luis Unit is the last component created by federal law in the
Central Valley Project, which is the largest Bureau of Reclamation
project in the United States. Water service to districts in the San
Luis Unit is often curtailed because of limitations imposed in pumping
in the Sacramento-San Joaquin Delta.
It is customary for water districts in the San Luis Unit to
supplement their supplies through purchases on the open market.
However, current federal law prohibits them from purchasing supplies
from the State Water Project and having these delivered over federal
facilities. Making such deliveries is relatively easy because state and
federal project conveyance facilities are interconnected. Prohibiting
purchase of state water for delivery over federal facilities limits the
opportunities available for San Luis Unit districts to obtain as large
a supplemental supply as they would like.
Mr. President, this bill has already passed the House as H.R. 3077.
It will impose no additional costs on the federal government. It
contains provisions which assure that the additional water obtained by
districts in the San Luis Unit cannot be used in a manner that would
exacerbate current groundwater drainage problems. It is consistent with
the provisions in the Central Valley Project Improvement Act that
sought to encourage the exchange of water by willing sellers to provide
additional supplies at reasonable cost to willing buyers. I urge the
Senate to pass this bill.
______
By Mr. SCHUMER (for himself and Mr. Kyl):
S. 2092. A bill to amend title 18, United States Code, to modify
authorities relating to the use of pen registers and trap and trace
devices, to modify provisions relating to fraud and related activities
in connection with computers, and for other purposes; to the Committee
on the Judiciary.
high tech crime bill
Mr. SCHUMER. Mr. President, I rise today to introduce with my friend
from Arizona, Senator Kyl, a high tech crime bill aimed at combating
computer crime. For the past nine months I have been discussing with
law enforcement and computer crime experts how best to address the
growing threat that computer crimes pose to our increasingly networked
society.
Many of the best solutions are far-reaching and complex and will only
be achieved through sustained and thoughtful hard work on an
international level by both government and the private sector in the
years ahead. There are, however, modes changes to existing laws that
can be made now, which will serve as a significant first step in a
much-needed effort to give law enforcement to tools they need to
effectively fight cybercrime. The legislation that Senator Kyl and I
are introducing today will, among other things, make the following
changes to existing law.
We must update our laws governing the use of what are called pen
registers (which record the numbers dialed on a phone line) and trap
and trace devices (which capture incoming electronic impulses that
identify the originating number). These laws have become outdated and
their procedures are too slow for the speed of criminals online.
Under current law, investigators must obtain a trap and trace order
in each jurisdiction through which an electronic communication is made.
Thus, for example, to trace on online communication between two
terrorists that starts at a computer in New York, goes through a server
in New Jersey, bounces off a computer in Wisconsin, and then ends in
San Francisco, investigators may be forced to go successively to a
court in each jurisdiction for an order permitting the trace (not to
mention having to approach each provider along the way). In the recent
Denial of Service attacks, hackers utilized dozens or even hundreds of
``zombie'' computers from which the attacks on specific sites were then
launched. No doubt, these computers were located all over the country.
and tracing them quickly under current law is therefore virtually
impossible.
This legislation will amend current law to authorize the issuance of
a single order to completely trace an online communication to its
source, regardless of how many intermediate sites it passes through.
Law enforcement must still meet the exact same burden to obtain such an
order; the only difference is that they will not have to repeat this
process over and over each time a communication passes to a new carrier
in a different Jurisdiction.
One deficiency of the Computer Fraud and Abuse Act, 18 U.C.C.
Sec. 1030, is its requirement of proof of damages in excess of $5,000.
In several cases, prosecutors have found that while computer intruders
had attempted to harm computers vital to our critical infrastructures,
such as telecommunications and financial services, damages of $5,000
could not be proven. Nevertheless, these intrusions pose a great risk
of harm to our country and must be prosecuted, punished, and deterred.
The Schumer-Kyl bill will unambiguously permit federal jurisdiction
at the outset of an unauthorized intrusion into critical infrastructure
systems rather than having investigators wait for any damage
assessment. Crimes that exceed the $5,000 limit will be prosecuted as
felonies, while crimes below that amount will be defined as
misdemeanors. The bill will also clarify that a $5,000 loss resulting
from a computer attack may include the costs of responding to the
offense, conducting a damage assessment, restoring a system to its
original condition, and any lost revenue or costs incurred as a result
of an interruption in service. The $5,000 requirement should not serve
as a barrier to the prosecution of serious computer criminals who
threaten our country's networks.
This legislation will also modify a directive to the sentencing
commission contained in the Antiterrorism and Effective Death Penalty
Act of 1999, which required a mandatory minimum sentence of six months'
imprisonment for certain violations of section 1030. Computer
intrusions that violate the statute vary in their severity and
maliciousness. All violations should be punished, but under the current
regime the mandatory imprisonment applies to some misdemeanor charges,
even where the attack caused no damage. As a result, some prosecutors
have declined to bring cases, knowing that the result would be
mandatory imprisonment. We should insure that federal prosecutors are
bringing cases under section 1030, but we also should insure that the
sentences being meted out fit the crime.
[[Page S805]]
Often the most technologically savvy individuals are juveniles who
have grown up with computers always at their fingertips. Unfortunately,
certain juveniles are committing the most serious computer crimes and
wreaking havoc on our critical infrastructures. For example, one
juvenile hacker caused an airport in Worcester, Massachusetts to shut
down for over six hours when its telecommunications connections were
brought down. Similarly, two California teenagers broke into sensitive
military computers, including those at Lawrence Livermore National
Laboratory and the U.S. Air Force.
As a longer term strategy, we need to do a better job of teaching our
children from a very young age that, like anywhere else, certain
conduct on the Internet is wrong and illegal. But we also need to send
a clear message that crimes on the Internet will have real
consequences. This legislation will amend 18 U.S.C. Sec. 1030 to give
federal law enforcement authorities the power to investigate and
prosecute juvenile offenders of computer crimes in appropriate cases.
The bill will make juveniles fifteen years of age or older who commit
the most serious violations of section 1030 eligible for federal
prosecution in cases where the Attorney General certifies that such
prosecution is appropriate. In conjunction with the elimination of the
six-month mandatory minimum, this legislation will provide a balanced,
measured approach to juvenile hacking crimes.
Again, these are just the first steps that should be taken in a very
long battle against cybercrime that many of us will wage for years to
come. And while we fight computer crime by modifying our criminal laws,
we also should seek concomitant ways to fully protect the fundamental
rights of innocent individuals on the Internet.
I want to thank Senator Kyl for joining me in introducing this bill.
As chairman of the Subcommittee on Technology, Terrorism, and
Government Information, I know that he cares deeply about these issues
and I look forward to working with him on this commonsense, bipartisan
legislation.
______
By Mr. DOMENICI (for himself, Mr. Bingaman, and Mr. Baucus):
S. 2093. A bill to amend the Transportation Equity Act for the 21st
Century to ensure that full obligation authority is provided for the
Indian reservation roads program; to the Committee on Environment and
Public Works.
the transportation equity act for the 21st century and Indian
reservation roads
Mr. DOMENICI. Mr. President, I am pleased today to be joined
by my colleagues Jeff Bingaman and Max Baucus in introducing
legislation to preserve precious dollars allocated by the Congress and
the President for construction of Indian reservation roads.
There is no doubt that the Indian reservation road system is the
poorest in our nation, and every federal dollar allocated for improving
this situation should be directed to our nation's Indian reservations.
The lack of adequate roads and bridges is a chronic problem on Indian
reservations, where unemployment averages 35 percent and more than half
of American Indian live in hard poverty.
Since 1982, when my Senate amendment added Indian roads to our
federal highway trust fund accounts, all funds allocated for Indian
roads have been used for that purpose. In ISTEA, which preceeded the
enactment of the Transportation Efficiency Act for the 21st Century
(TEA-21), the Indian Reservation Roads (IRR) program reached a level of
$191 million per year.
Many of us in Congress worked hard to increase this IRR funding to
$225 million in the first year of TEA-21 (FY 1998), and $275 million
each year thereafter, through FY 2003. Unfortunately, a little noticed
provision for Federal Lands Highways, placing an ``obligation
limitation'' on the IRR program, has resulted in the transfer of funds
intended for Indian reservations to be transferred to the 50 states.
In FY 1998, the amount deducted for this transfer to states from the
IRR program was $24.2 million. In FY 1999, it was $31.7 million; and in
FY 2000, the obligation limitation resulted in a loss of $34.9 million
that could have been used for Indian reservation road building.
In all previous enacting legislation since 1982, federal funds
intended for IRR programs have been used for IRR purposes. Only in TEA-
21 was this changed due to the application of the obligation limitation
to Federal Lands Highways and the IRR program.
Our bill will simply exclude the IRR program from this annual
deduction that has totaled, in the past three years, more than $90
million. This money, while helpful to many states, is more badly needed
on Indian reservations and should be preserved for that purpose. By
excluding the IRR program from this obligation limitation provision, we
will be increasing federal funds for Indian roads without increasing
the cost of the total program. We will be focusing the funds for Indian
roads on Indian roads, as we have intended since the IRR program first
became part of our federal highway trust fund in 1982.
I urge my colleagues to join us in redirecting funds intended for
Indian road construction to be dedicated to that purpose.
Mr. BINGAMAN. Mr. President, I am pleased to join today with my good
friend and colleague from New Mexico, Senator Domenici, to introduce
this bill along with Senator Baucus. This bill assures that our Native
American communities have the funding they need for critical
transportation projects. Our bill will fund the Indian Reservation Road
Program for the next three years with at least $275 million per year,
the full amount authorized by Congress.
Mr. President, since I came to the Senate in 1983, I've worked hard
to promote economic development and create new jobs for my state of New
Mexico. One thing I learned very quickly is that you can't expect to
attract new industry unless you have the basic infrastructure to
support residential and commercial needs. The most important
infrastructure needs include transportation, power, communications,
water and sewers. Without these basic services at affordable rates,
opportunities to create good jobs will simply not develop.
Today our country is fortunate to have one of the strongest economies
in history. Our recent advances in job creation and economic growth are
accomplishments that all Americans should be proud of. Unfortunately,
as many of us know, some sectors of our nation continue to lag behind
the wave of economic prosperity that has swept the nation. In
particular, I remain concerned about our Native American communities.
Unemployment rates today in Indian Country frequently top 30, 40, and
even 50 percent. Mr. President, the nation must not stand by while
Indian Country is literally being left behind. Perhaps more than any
other community in America, the Tribes and Alaska Native Villages
suffer from inadequate infrastructure.
This year I am pleased to be working with President Clinton, Senators
Daschle, Domenici, and others on a number of new programs and
initiatives to help the Native American Communities enjoy the same
level of economic prosperity as the rest of America. In this respect,
the Tribes are no different than the rest of America--to promote their
economic development basic infrastructure must first be in place. The
President's initiative recognizes this fact. The bill we are
introducing today addresses one element of that initiative--the need
for basic transportation, including roads and transit. This bill will
help promote transportation on every reservation in America by fully
funding the Indian Reservation Roads Program.
First established in 1928, the Indian Reservation Roads program is
one of the ways America meets its special responsibility to help Native
Americans achieve self sufficiency and self determination. The goal of
the Indian Reservation Roads program is to provide safe and economic
means of transportation throughout Indian Country. Over the years, the
program has been reauthorized and modified to help meet the Tribes'
needs for basic transportation infrastructure. Most recently, the
program was reauthorized for six years in 1998. The program is playing
a critical role in economic development, self-determination, and
employment of Native Americans in 33 states, including the Alaska
Native Villages.
Currently, the reservation roads system comprises 25,700 miles of
BIA- and Tribal-owned roads and 25,600 miles of state, county and local
roads. There
[[Page S806]]
are also 740 bridges on the system and even one ferry boat in the state
of Washington. These public roads and transit system are, of course,
used by everyone, not just Native Americans. To give the Senate some
perspective of the magnitude of this system, the 51,000 total miles on
the Indian Reservation Road system are more miles of public roads than
there are in 15 states. If you consider only roads on the Federal Aid
Highway system, the Indian road system has more miles than the state of
California.
Unfortunately, Mr. President, many of the roads on the IRR system are
among the worst in the nation. Of the 25,700 miles owned by BIA and
Tribes, two thirds or 18,000 miles are not paved and 12,000 are
unimproved dirt roads. Currently, 190 of the 740 bridges are listed as
deficient, presenting serious safety concerns. The estimated backlog in
road and bridge construction alone is $4 billion, and that doesn't even
start to include transit needs. When roads are as bad as these, people
can't get to work, children in school buses can't get to school, and
seniors can't get to their doctors or hospitals.
Mr. President, in 1998, under the able guidance of the late Senator
Chafee and Senator Baucus, Congress produced the Transportation Equity
Act for the Twenty-First Century, or TEA-21. Through its many
transportation programs, TEA-21 has already had major impacts on
transportation, both highways and transit, in my state and around the
country. The bill increased funding for state highway programs by an
average of fifty percent above the levels in the previous six-year
bill, ISTEA. Some states, because of population growth, are seeing
increases of seventy, eighty and even ninety percent over the levels in
ISTEA.
Unfortunately, funding for the Indian Reservation Roads Program did
not receive the same magnitude of increase as TEA-21 provided for the
states.
The full impact of TEA-21 on the Indian Road program has only
recently become clear. In the last year of ISTEA, the program was
funded at nearly $220 million. Now, under TEA-21, the authorization
level was increased to $275 million, but for the first time, the
program was subject to an obligation limitation, which reduces the
funding this year by $35 million.
Thus, despite the massive infusion of transportation funding to the
states, funding for Indian Country was inexplicably left behind. While
the states averaged a fifty percent increase in annual highway funding,
the tribes got less than half that--only about a twenty percent
increase. Mr. President, though TEA-21 strived for equity in funding,
we fell short of equity when it came to Native Americans.
Our bill is very simple. It provides a very narrow exemption to the
obligation limitation in TEA-21 to assure that the full authorized
amount, $275 million, is available to help meet critical transportation
needs in Indian Country. The exemption would only apply to the
remaining three years of TEA-21. A number of other programs in TEA-21
already have this exemption, and I believe that Congress should make
good on its commitment to the tribes to provide the Indian Road Program
the full amount authorized. This increase in funding would bring the
program roughly up to parity with the increase that the state highway
programs are already receiving in TEA-21.
Mr. President, I fully appreciate that a few Senators may have
concerns about changing any aspect of the funding distribution in TEA-
21. However, I believe a strong argument can be made in this unique
case. First, nobody can dispute the incredible needs for transportation
infrastructure in Indian Country, which suffers, as I said, a backlog
of at least $4 billion. Second, the effect of our bill on all other
highway programs in TEA-21, including state highway funding, is truly
minimal; its impact amounts to only about one-tenth of one percent.
Third, this is an issue of basic fairness. This change would provide
both the states and the IRR roughly the same 50 percent increase in
their transportation funding above the levels in ISTEA. And finally, I
believe we made a commitment to the tribes when we authorized funding
of $275 million. Congress should make good on that commitment.
In closing, I look forward to working with the distinguished Chairman
of the Environment and Public Works Committee, Senator Smith, and the
Ranking Member, Senator Baucus, as well as with the Chairman of the
Transportation and Infrastructure Subcommittee, Senator Voinovich, to
correct this serious inequity in what is otherwise an outstanding
transportation bill.
Mr. President, state highway departments recognize how important this
program is to both the tribes and the states. I recently received a
letter from Mr. Pete K. Rahn, Secretary of the New Mexico State Highway
and Transportation Department. In his letter, Secretary Rahn indicates
his support for this bill. He goes on to say that the department
recognizes that the bill will result in a slight reduction in the
federal funds, which flow directly to the state of New Mexico. However,
he continues, the department also recognizes that the benefit realized
by the state as a whole, by the substantial increase in funds to the
state's tribes for road improvements, far outweigh this reduction. I
want to thank Secretary Rahn for expressing his support for this bill.
I have a similar letter addressed to Senator Baucus from Connie Niva,
Chair of the State of Washington Transportation Commission, along with
a resolution in support of lifting the obligation limitation from the
Indian Reservation Road Program.
Mr. President, I ask unanimous consent that the letter from Secretary
Rahn, the letter and a resolution from the Washington Transportation
Commission, letters from Mr. Kelsey A. Begaye, President of the Navajo
Nation, and Mr. David McKinney, Executive Director of the Intertribal
Transportation Association, and a resolution from the Affiliated Tribes
of Northwest Indians be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
New Mexico State Highway
and Transportation Department,
Santa Fe, NM, February 21, 2000.
Hon. Jeff Bingaman,
U.S. Senate,
Washington, DC.
Dear Senator Bingaman: The purpose of this letter is to
indicate my support for the bill that you and Senators
Domenici and Baucus have introduced to exempt the Indian
Reservation Road Fund from the obligation limitation by
amending section 1102(b) of TEA-21 to include the IRR in the
list of exceptions.
We recognize that this will result in a slight reduction in
the federal funds, which will flow directly to the state of
New Mexico. However, we also recognize that the benefit
realized by the state as a whole, by the substantial increase
in funds to the state's tribes for road improvements, far
outweighs this reduction.
If you have any questions, or would like clarification on
these matters please contact Richard Montoya of my staff.
Sincerely,
Pete K. Rahn,
Secretary.
____
State of Washington,
Transportation Commission,
Olympia, WA, February 18, 2000.
Hon. Max Baucus,
Ranking Minority Member, Senate Environment and Public Works
Committee, Washington, DC.
Dear Senator Baucus: The Washington State Transportation
Commission has adopted enclosed Resolution No. 600 supporting
Resolution #99-23 of the Affiliated Tribes of Northwest
Indians (ATNI). The Commission joins with ATNI in
recommending that the United States Congress remove the
obligation ceiling limitation requirement of TEA-21 from the
Indian Reservation Roads (IRR) Program.
This is an issue of vital concern to all tribes of
Washington State, and it is an issue of fundamental fairness.
When Congress enacted the Transportation Equity Act for the
21st Century (TEA-21) on June 9, 1998, it changes the way in
which obligation limits were set for the IRR Program. Instead
of having limits set at 100% of authorized levels as they
were under previous highway acts, limitation for the IRR
Program is now calculated similar to states. For tribes, the
change has removed $90 million from their total authorization
in the past three years, and an additional $120 million is
expected to be lost during the remainder of the authorization
period. While the total authorization for the state of
Washington is similarly reduced, states have the opportunity
to carry over unused authorizations to subsequent years. On
the other hand, the authorized amounts deducted from the IRR
Program are redistributed to states rather than back to the
program. For the state of Washington, there is a net outflow
of funding. More is lost from the IRR Program than the state
receives back in redistributed authorization.
[[Page S807]]
Thank you for considering this request of such great impact
to the tribes of our state. If you have any questions, please
call me.
Sincerely,
Connie Niva,
Chair.
____
Resolution No. 600 of the Washington State Transportation Commission
Whereas, the Washington State Transportation Commission
serves as the board of directors of the Washington State
Department of Transportation, providing oversight to ensure
the Department delivers quality transportation facilities and
services in a cost-effective manner; and,
Whereas, the Washington State Transportation Commission
also proposes policies, plans and funding to the legislature
which will promote a balanced, inter-modal transportation
system which moves people and goods safely and efficiently;
and,
Whereas, it is a policy objective of the Washington State
Transportation Commission to cooperate and coordinate with
public and private transportation partners so that systems
work together cost effectively; and,
Whereas, there are 28 Indian tribal governments recognized
by the federal government within the state of Washington;
and,
Whereas, these tribal governments develop and improve the
road systems for their communities with funding provided
under the federal Indian Reservation Roads program; and,
Whereas, many state highways and local roads are linked
directly to tribal road systems, providing access to Indian
reservations, and recognized by the Bureau of Indian Affairs
as public roads within the Indian Reservation Roads Program;
and,
Whereas, it has been brought to the attention of the
Commission that under the Intermodal Surface Transportation
Efficiency Act of 1991, funding apportioned from the Highway
Trust Fund to the Indian Reservation Roads Program was not
subject to a limitation on obligations as is the case with
distributions to states from the fund; and,
Whereas, the Commission further understands that funding
authorized under the Transportation Equity Act for the 21st
Century now subjects distributions to the Indian Reservation
Roads Program to a limitation on obligations; and,
Whereas, as a result of this change in law, some $90
million in obligation authority vitally needed to reverse the
deplorable condition of Indian Reservation Roads has been
lost to Indian tribal governments than would otherwise have
been distributed; and,
Whereas, this change in law adversely impacts the Indian
Reservation Roads Program within the state of Washington;
and,
Whereas, the Affiliated Tribes of Northwest Indians has by
resolution, recommended removal of the obligation ceiling
limitation requirement for the Indian Reservation Roads
Program.
Now, therefore, be it Resolved, That Washington State
Transportation Commission joins with the Affiliated Tribes of
Northwest Indians in recommending removal of the obligation
ceiling limitation requirement of TEA-21 from the Indian
Reservation Roads Program.
Now, therefore, be it finally Resolved, That the Washington
State Transportation Commission supports Resolution #99-23 of
the Affiliated Tribes of Northwest Indians, adopted February
10, 1999, at their 1999 Winter Conference in Portland,
Oregon.
Adopted this 17th day of February, 2000.
____
The Navajo Nation,
Window Rock, AZ, February 23, 2000.
Re proposed legislation for the indian reservations roads
program.
Hon Jeff Bingaman,
U.S. Senate,
Washington, DC.
Dear Senator Bingaman: I am submitting this letter on
behalf of the Navajo Nation in support of your efforts to
assist the Navajo Nation and Indian Country regarding the
Indian Reservation Roads (IRR) Program. Particularly, the
effort to correct the TEA-21, which has imposed an obligation
limitation on the IRR Program. The obligation limitation
would further underfund an important element in economic and
community development on the Navajo Nation and Indian
Country.
I thank you in advance for your continued support on issues
affecting the Navajo Nation and Native Americans across the
United States. If you have any additional questions on the
IRR Program, please contact Mr. Paulson Chaco, Director of
Navajo Nation Department of Transportation.
Sincerely,
Kelsey A. Begaye,
President.
____
Intertribal Transportation
Association, National Headquarters,
Stillwater, OK, February 18, 2000.
Subject: Supporting Senator Bingaman's proposed legislation
for the Indian reservation roads (IRR) program.
Mr. Dan Alpert,
Office of Senator Bingaman,
Washington, DC.
The Intertribal Transportation Association is in support of
Senator Bingaman's proposed Legislation that will assure that
the Indian Reservation Roads (IRR) program is funded at the
fully authorized level for the remaining three years of TEA-
21.
Sincerely,
David McKinney,
Executive Director.
____
Resolution No. 99-23 of the Affiliated Tribes of Northwest Indians
Whereas, the Affiliated Tribes of Northwest Indians (ATNI)
are representatives of and advocates for national, regional,
and specific Tribal concerns; and
Whereas, the Affiliated Tribes of Northwest Indians is a
regional organization comprised of American Indians in the
states of Washington, Idaho, Oregon, Montana, Nevada,
northern California, and Alaska; and
Whereas, the health, safety, welfare, education, economic
and employment opportunity, and preservation of cultural and
natural resources are primary goals and objectives of
Affiliated Tribes of Northwest Indians; and
Whereas, transportation impacts virtually every aspect of a
community, such as economic development, education,
healthcare, travel, tourism, planning, land use and
employment opportunities; and
Whereas, the Affiliated Tribes of Northwest Indians is
aware that the Transportation Equity Act for the 21st Century
(TEA-21) has been signed into law by the U.S. President and
limits the obligation of Indian Reservation Road (IRR)
funding to 90%; and
Whereas, the obligation ceiling limitation thus far has
eliminated over $58 million from the IRR program which will
lose another $31 million if the limitation is not removed in
the FY 2000 appropriations Act; and
Whereas, this limitation is inconsistent with all prior
transportation Acts, and seriously impacts the ability of
Indian Tribes and the Bureau of Indian Affairs to provide the
American Indian people with safe and decent access to health
care, education, employment, tourism, and economic
development; now
Therefore be it resolved, the Affiliated Tribes of
Northwest Indians strongly recommends the U.S. Congress
remove the obligation limitation contained in TEA-21 for the
IRR program in its deliberations for the FY 2000 and
subsequent Department of Transportation Appropriations Acts.
______
By Mr. KENNEDY:
S. 2094. A bill to amend the Energy Policy and Conservation Act to
ensure that petroleum importers, refiners, and wholesalers accumulate
minimally adequate supplies of home heating oil to meet reasonably
foreseeable needs in the northeastern states; to the Committee on
Energy and Natural Resources.
STABLE OIL SUPPLY (SOS) HOME HEATING ACT
Mr. KENNEDY. 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. 2094
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 ``Stable Oil Supply (SOS) Home
Heating Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) more than 35 percent of families in the northeastern
United States depend on oil to heat their homes each winter,
and most of those families have no practical alternative to
paying the going price for heating oil or seeking public or
private assistance to pay for heating oil;
(2) consumers experienced sudden and dramatic increases in
prices for home heating oil during the winters of 1989, 1996,
and 1999, causing hardship to families and other people of
the United States, including people on fixed and low incomes,
people living in rural areas, the elderly, farmers, truckers
and the driving public, and governments that pay home heating
oil bills;
(3) a substantial part of each sudden increase in home
heating oil prices has been caused by vastly inadequate
supplies of home heating oil accumulated during the summer,
fall, and winter months by importers, refiners, and
wholesalers; and
(4) increased stability in home heating oil prices is
necessary to maintain the economic vitality of the Northeast.
(b) Purpose.--The purpose of this Act is to ensure that
minimally adequate stocks of home heating oil are accumulated
in the Northeast to meet reasonably foreseeable demand during
each winter while protecting consumers from sudden increases
in the price of home heating oil.
SEC. 3. DEFINITIONS.
Section 152 of the Energy Policy and Conservation Act (15
U.S.C. 6232) is amended--
(1) by redesignating paragraphs (2), (3), (4), (5), (6),
(7), (8), (9), (10), and (11) as paragraphs (3), (4), (5),
(8), (9), (10), (11), (12), (13), and (14);
(2) by inserting after paragraph (1) the following:
``(2) Home heating oil.--
``(A) In general.--The term `home heating oil' means
distillate fuel oil.
``(B) Inclusions.--The term `home heating oil' includes No.
1 and No. 2 diesel and fuel oils.'';
(3) by inserting after paragraph (5) (as redesignated by
paragraph (1)) the following:
[[Page S808]]
``(6) Northeast.--The term `Northeast' means the States of
Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York, Pennsylvania, and New Jersey.
``(7) Primary heating oil inventory.--
``(A) In general.--The term `primary heating oil inventory'
means a heating oil inventory held by an importer, refiner,
or wholesaler.
``(B) Exclusion.--The term `primary heating oil inventory'
does not include any inventory held by a retailer for the
direct sale to an end user of home heating oil.''; and
(4) by adding at the end the following:
``(15) Wholesaler.--The term `wholesaler' means any person
that--
``(A) owns, operates, leases, or otherwise controls a bulk
terminal having a total petroleum storage capacity of 50,000
barrels or more;
``(B) stores home heating oil; and
``(C)(i) resells petroleum products to retail businesses
that market the petroleum products to end users; or
``(ii) receives petroleum products by tanker, barge, or
pipeline.
``(16) Winter season.--The term `winter season' means the
months of November through March.''.
SEC. 4. HOME HEATING OIL RESERVE FOR THE NORTHEAST.
Part B of the Energy Policy and Conservation Act (15 U.S.C.
6231 et seq.) is amended by inserting after section 157 the
following:
``SEC. 157A. VOLUNTARY PLANS FOR HOME HEATING OIL RESERVE.
``(a) Submission and Development of Voluntary Plans.--
Importers, refiners, and wholesalers that hold primary
heating oil inventories for sale to markets in the Northeast,
acting individually or in 1 or more groups, should, for the
purposes of ensuring stability in energy fuel markets and
protecting consumers from dramatic swings in price--
``(1) develop voluntary plans, in consultation with
interested individuals from nonprofit organizations and the
public and private sectors, to maintain readily available
minimum product inventories of heating oil in the Northeast,
possibly in combination with the hedging of future
inventories, to mitigate the risk of severe price increases
to consumers and to reduce adverse impacts on the regional
and national economies; and
``(2) submit the voluntary plans to the Secretary not later
than 180 days after the date of enactment of this section.
``(b) Certification and Report.--
``(1) In general.--If the Secretary determines that a plan
submitted under subsection (a)--
``(A) is likely to achieve the purposes of this Act, the
Secretary shall so certify, and the importer, refiner, or
wholesaler shall implement the plan; or
``(B) is not likely to achieve the purposes of this
section, the Secretary shall issue a statement explaining why
the plan does not appear likely to achieve those purposes.
``(2) Report.--Not later than 240 days after the date of
enactment of this section, the Secretary shall submit to
Congress a report describing the findings and reasons for a
certification or failure to certify a plan under this
subsection.
``(c) Defense to Antitrust Actions.--
``(1) In general.--There shall be available as a defense to
a civil or criminal action brought under the antitrust laws
(or any similar State law) with respect to an action taken to
develop and carry out a voluntary plan under subsection (a)
by an importer, refiner, or wholesaler the fact that--
``(A) the action is taken--
``(i) in the course of developing the voluntary plan; and
``(ii) in the course of carrying out the voluntary plan, if
the voluntary plan is certified by the Secretary under
subsection (b);
``(B) the action is not taken for the purpose of injuring
competition; and
``(C) the importer, refiner, or wholesaler is in compliance
with this section.
``(2) Limitation.--Except in the case of an action taken to
develop a voluntary plan, the defense provided in paragraph
(1) shall be available only if the person asserting the
defense demonstrates that the action was specified in, or
within the reasonable contemplation of, a voluntary plan
certified by the Secretary.
``(3) Burden of proof.--A person interposing the defense
under paragraph (1) shall have the burden of proof, except
that the burden shall be on the person against which the
defense is asserted with respect to whether an action is
taken for the purpose of injuring competition.
``(d) Report.--Not later than 1 year after the date of
enactment of this section, and annually thereafter, the
Secretary shall submit to Congress a report describing the
results of the implementation of all voluntary plans
certified under this section, including specific compliance
by importers, refiners, and wholesalers that serve the
Northeast market with respect to the adequacy of the home
heating oil supply.
``(e) Plan Adopted by Secretary.--If, by the date that is
240 days after the date of enactment of this section, for
each importer, refiner, and wholesaler in the Northeast, a
certified plan is not implemented in accordance with
subsection (b), the Secretary shall adopt and implement a
plan in accordance with section 157B.
``SEC. 157B. HOME HEATING OIL RESERVE FOR THE NORTHEAST.
``(a) Establishment of Private Home Heating Oil Reserves.--
If a certified plan described in section 157A is not
implemented in accordance with that section for each
importer, refiner, and wholesaler that stores home heating
oil for sale in the Northeast, not later than 300 days after
the date of enactment of this section, the Secretary shall
establish a private home heating oil reserve for the
Northeast in accordance with this section.
``(b) Inventory.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary shall periodically monitor supply levels as
necessary to ensure that each importer, refiner, and
wholesaler of home heating oil that stores home heating oil
for sale in the Northeast shall have in inventory and readily
available to refiners in the Northeast a quantity of home
heating oil that the Secretary determines is equal to the
quantity that each importer, refiner, or wholesaler may
reasonably be expected to require to supply the needs of its
customers during the present or following winter season
without subjecting consumers to sudden price increases that
are due in part to inadequate buildup of heating oil
inventories.
``(2) Limitation.--The Secretary shall not require any
importer, refiner, or wholesaler to store any product under
paragraph (1) in a quantity greater than 95 percent of the
average storage capacity for home heating oil reasonably
available to the importer, refiner, or wholesaler during the
preceding 2 years.
``(3) Increased inventory.--If the Secretary determines
that an inventory of home heating oil does not meet the
requirement of under paragraph (1), the Secretary may direct
an importer, refiner, or wholesaler to acquire, store, and
maintain in readily available inventories any quantity of
home heating oil that the Secretary determines to be
necessary to supply heating oil needs in the Northeast
without subjecting consumers to sudden price increases that
are due in part to inadequate buildup of heating oil
inventories.
``(4) Regulations.--As soon as practicable after the date
of enactment of this section, the Secretary shall promulgate
regulations necessary to carry out this section, including
regulations that--
``(A) authorize civil penalties to enforce this section;
and
``(B) provide that the Secretary shall cooperate with State
energy authorities in carrying out this section.
``(c) Excess Inventory.--At the end of each winter season,
the Administrator of the Environmental Protection Agency
shall take appropriate and reasonable action to enable
importers, refiners, and wholesalers of home heating oil to
sell any remaining excess inventories of heating oil that the
importers, refiners, and wholesalers may have.
``(d) Implementation.--In implementing this section, the
Secretary shall ensure, to the maximum extent practicable,
that the manner of implementation supports the maintenance of
an economically sound and competitive petroleum industry.
``(e) Report.--Not later than 1 year after the
implementation of a plan under this section, the Secretary
shall submit to Congress a report describing the results of
the implementation of the plan, including specific compliance
by importers, refiners, and wholesalers in the Northeast with
respect to home heating oil supply buildup.''.
______
By Mrs. FEINSTEIN:
S. 2095. A bill to provide for the safety of migrant seasonal
agricultural workers; to the Committee on Health, Education, Labor, and
Pensions.
the farm worker transportation safety act
Mrs. FEINSTEIN. Mr. President. I rise to introduce legislation to
give farm workers what so many of us take for granted--a safe commute
to work.
Today, many farm workers are still being transported to fields in
crowded vans lacking basic safety equipment. There are reports of vans
originally designed for 10 people, transporting up to 20 passengers
with no access to seat belts. People should not have to put their lives
at risk to travel to a job site.
According to the latest United States Department of Labor statistics,
farm occupations have the second highest work-related fatalities, and
45 percent of these fatalities are vehicular related.
Nationally, 533 farm workers were killed in transportation incidents
between 1994 and 1998. And farm workers are 4 times more likely to be
killed in on-the-job highway traffic accidents than a typical worker.
The following are just a few of the recent accidents involving farm
workers traveling in vehicles without seatbelts.
Just two weeks ago, on February 10, 14 people were injured when a car
ran a stop sign and crashed into a van carrying farm workers in Tulare
County, California. Authorities cited the driver of the van three
months ago for illegally transporting workers--but at the time of the
accident, he still had not received certification to transport workers.
[[Page S809]]
On September 10, 1999, 13 people were injured south of Fresno when an
unlicensed van driver failed to stop for a posted stop sign and
collided with another car. The van had seven seats--all with
seatbelts--but four passengers were seated on the floor.
On August 9, 1999, thirteen tomato field workers were killed when the
van transporting them home slammed into a tractor-trailer truck in
rural southwest Fresno County, California. Most of the victims in this
horrific crash rode on three bare benches in the back of the van.
On July 23, 1999, one man was killed and more than 40 people injured
when a big-rig crashed into a Greyhound bus and a farm worker van on
Highway 99 in Tulare County, California. The victim rode in the farm-
labor van, packed with 19 other passengers.
This is a national problem which calls for Federal action. Farm
workers live all over the country, and have work that frequently
carries them across state lines.
Unfortunately, existing Federal laws leave farm workers inadequately
protected.
Regulations issued under the Migrant and Season Agricultural Worker
Protection Act (MSPA) prohibit transport of migrant workers unless the
vehicles have adequate service brakes, parking brakes, steering
mechanisms, windshield wipers, tires, and review mirrors. But, believe
it or not, the law does not mandate seating positions or an operational
seatbelt for each passenger.
The Farm Worker Safety Transportation Act of 2000 will make it
illegal to transport farm workers unless each passenger has a
designated seat with an operational seatbelt. This applies no matter
how the vans are purchased or modified.
Federal law now requires vans manufactured with up to 10 passenger
seats to have operational seatbelts for each seat. However, after a new
van is sold to its first owner, the owner can legally remove the rear
seats and install bare benches. Similarly, Federal law permits an
individual to purchase a van with an empty cargo hold and install
benches without seatbelts.
The legislation will direct the Department of Transportation to
develop interim seat and seatbelt standards for vans or trucks without
seats that are converted for the transport of farm workers.
After a seven-year transition period, the commercial vehicles that
transport farm workers will have to meet the same seat and seatbelt
standards as a new vehicles.
A farm worker should have access to a safe commute whether he or she
is traveling to a field in Arizona, California, Washington, or Florida.
I look forward to working with my colleagues to enact this sensible,
practical legislation that will save lives.
______
By Mr. BAYH:
S. 2096. A bill to amend the Internal Revenue Code of 1986 to provide
an income tax credit to long-term caregivers; to the Committee on
Finance.
the caregivers assistance and resources enhancement (care) tax credit
act
Mr. BAYH. Mr. President, America is aging--we are all living longer
and generally healthier and more productive lives. In the next 30
years, the number of Americans over the age of 65 will double. For most
Americans this is good news. However, for some families aging comes
with unique financial obstacles. More and more middle income families
are forced to choose between providing educational expenses for their
children, saving for their own retirement, and providing medical care
for their parents and grandparents. When a loved one becomes ill and
needs to be cared for nothing is more challenging then deciding how the
care they need should be provided. Today, I rise to make that decision
easier and to strengthen one option for long-term care--caring for a
loved one at home.
The bill I introduce today, the Care Assistance and Resource
Enhancement Tax Credit, provides caregivers with a $3,000 tax credit
for the services they provide. I am introducing this bill in order to
encourage families to take care of their loved ones, make it more
affordable for seniors to stay at home and receive the care they need,
and save the government billions of dollars currently spent on
institutional care. Through this tax credit we accomplish all that
while emphasizing family values.
There are over 22 million people providing unpaid help with personal
needs or household chores to a relative or friend who is at least 50
years old. In Indiana alone, there are 568,300 caregivers. They do this
work without any compensation. They do not send the government a bill
for their services or get reimbursed for their expenses by a private
company. They do it because they care. As a result of their compassion,
the government saves billions of dollars. For example, the average cost
of a nursing home is $46,000 a year. The government spent approximately
$32 billion in formal home health care costs and $83 billion in nursing
home costs. If you add up all the private sector and government
spending on long-term care it is dwarfed by the amount families spend
caring for loved ones in their homes. As a study published by the
Alzheimers Association indicated, caregivers provide $196 billion worth
of care a year.
I held a field hearing in my state, Indiana, last August to discuss
ways to make long-term care more affordable. At this hearing I heard
from three caregivers who are providing care for a family member. Mrs.
Linda McKinstry takes care of her husband who had been diagnosed with
Alzheimers two years ago. Mr. and Mrs. Cahee are caregivers for Mr.
Cahee's mother who also has Alzheimers. They all echoed the need for
financial relief and support services. They spoke of the financial and
emotional stress associated with taking care of a loved one. After
hearing their stories, it became clear that their efforts are truly
heroic and we should be doing all that we can at the federal level to
provide the support they need to keep their families together.
At a time when people are becoming skeptical of the government,
Congress needs to help people meet the challenges they face in their
daily lives. This tax credit does that. It will serve 1.2 million older
Americans, over 500,000 non-elderly adults, and approximately 250,000
children a year. I encourage you to take notice of the work done by
caregivers and join me in supporting this legislation and giving
caregivers the gratitude they deserve.
Thank you, Mr. President.
______
By Mr. MURKOWSKI (for himself and Ms. Landrieu):
S. 2098. A bill to facilitate the transition to more competitive and
efficient electric power markets, and to ensure electric reliability;
to the Committee on Energy and Natural Resources.
electric deregulation legislation
Mr. MURKOWSKI. Mr. President, I rise to introduce an electric
deregulation bill, which it is my sincere hope will reduce the burdens
on our electric ratepayers and consumers throughout this country by
promoting competition and reliability in the electric power industry.
First, let me say competition isn't the goal of the legislation.
Instead, competition is the means to achieve the goal of assuring
customers reliable and reasonably-priced electricity.
We have seen the benefits of competition in other industries such as
natural gas, telecommunications, trucking, and even in the airlines. In
each case, competition reduced prices. That was the objective--to
enhance supply and to encourage innovation.
There is every reason to expect that competition in the electric
industry will benefit consumers. The Department of Energy agrees. It is
projecting consumer savings in the area of $20 billion per year. That
is not hay. That would be a significant savings to the consumers in
this country, particularly important at a time when we are seeing
spiking rates in oil, high gasoline prices, high heating oil prices,
and high diesel fuel prices, as noted by the trucking industry that
recently demonstrated here in Washington, DC. Heating oil prices are
spiraling in the Northeast corridor.
We are talking about, through electric deregulation, trying to bring
about consumer savings of $20 billion per year or more. Progress has
already been made in this area, both in retail competition and
wholesale competition because there has been innovation. Twenty-four
States have already adopted retail competition. That covers nearly 60
percent of our consumers. All other States are now giving it
consideration. As a consequence of the innovation of
[[Page S810]]
the States, we are now seeing retail competition becoming a reality.
The Federal Energy Regulatory Commission has created wholesale
competition in the interstate market through Order 888.
The legislative task we face--I, as chairman of the Energy and
Natural Resources Committee, and my colleagues on that committee, both
the minority and the majority--will be significant. We look forward to
the task ahead. It will call for the examination of this bill, as a
comprehensive bill, to try to address the various concerns, as well as
take up the other bills.
However, I recognize there will be certain areas on which we will not
be able to reach agreement. We can set them aside and proceed on what
we can agree on, then go back one more time and look at those items we
are still hung up on to see if we can generate any consensus. At that
point, we can see what we have. Hopefully, it will be still meaningful.
As I said, the legislative task before the Senate is building on the
progress that has been made with the States, not halting State progress
on retail competition, and not interfering with the FERC process on
wholesale competition.
The question is: How do we get there from here? How do we move the
electric power industry from regulation to competition? Some argue we
should preempt the States; I don't think so. Some say that we should
substitute FERC regulation for State regulation; I don't think so.
Others have the theory that one size fits all; I don't think so.
I think the States and the innovative attitudes coming out of the
States indicate that one size does not fit all. We do not want to
simply substitute one regulation for another. That is not deregulation.
If that is done, it is just ``different'' regulation. Moreover, what
may work in one State undoubtedly won't work in another State and the
consumers would be harmed.
To me, the answer is obvious. For consumers to enjoy the benefits of
competition, we have to let the free market system work. We have seen
that time and time again. We must stop having regulators pick the
winners and losers, regulators making decisions that should be made in
the marketplace.
I have long said the best way to move toward market competition is to
deregulate in those areas we can, streamline what we cannot deregulate,
and facilitate States moving forward on retail competition.
I would prefer deregulating the entire electric power industry.
However, I recognize some regulation must remain because it is
necessary to protect consumers. Traditionally, States have regulated
retail matters directly affecting consumers and FERC has regulated
matters in interstate commerce. The legislation I introduce today
retains this traditional division of authority between the States and
FERC.
I believe that where regulation is necessary, it should be pursued by
the unit of government that is closest to the consumer. The government
that is closest to the citizen, is the government that will be the most
responsive to citizens. Citizens go down to city hall; citizens will go
down to the legislative body. That is where citizens are closest to
their government, and those are the people to whom taxpayers can reach
out and hold responsible--or wring their neck if necessary.
I believe that FERC should only regulate that which cannot be
regulated by States because it is in interstate commerce. I repeat
that: In my opinion, as represented in this bill, FERC should regulate
only that which cannot be regulated by States because it is in
interstate commerce.
I will highlight the important provisions of the legislation I have
introduced today. One key element is the creation of a clear division
of responsibility between the States and the Federal Government. States
are responsible for retail matters affecting consumers in their State,
including retail competition, and FERC is responsible for interstate
matters, including wholesale competition. By creating this
jurisdictional ``bright line,'' so to speak, I think we will clear up
the current confusion in the jurisdiction that has resulted in
litigation which is slowing down progress on competition. In the
future, if there is a problem, we will know whom to hold responsible.
Oftentimes in this business, accountability is pretty hard to find.
We have designed this so we will be able to hold those responsible for
their actions, and they will not be able to hide under a rock.
This legislation also includes provisions that will protect electric
reliability which is so important to consumers in our economy.
I am pleased to say Senator Landrieu is joining me in this bipartisan
legislation. The Senator from Louisiana has been very diligent in our
Energy Committee.
The legislation protects electric reliability in two ways: First, it
creates a comprehensive, reliability organization that has clear
enforcement authority. This will help in the short term. Second, by
promoting competition, it ensures reliability over the long run,
because the market will respond to consumer needs.
The legislation also includes provisions to ensure that States and
State public utility commissions will continue to be fully able to
protect consumers.
The legislation has provisions which will provide access to all
interstate transmission lines, not just those covered by investor-owned
utilities. Removing gaps in transmission access will promote
competition in the wholesale power market.
The legislation also addresses a number of other important issues
including PURPA repeal, PUHCA repeal, assuring funding for nuclear
power plant decommissioning, and authority to construct new
transmission lines.
There are other important issues that need to be addressed during the
legislative process. For example, we need to look at ways to streamline
and speed up the merger review process. Utilities are rightfully
distressed that FERC's process is far too cumbersome, takes far too
long to complete, and as a consequence is far too expensive. And these
costs are just passed on to consumers. FERC is retained to do their
analysis and make their decisions in a timely manner. These drawn out
decisions, for all practical purposes, are simply allowing full
employment for far too many lawyers.
We also need to consider the creation of a universal service fund,
similar to that which Congress included in the telecommunications
legislation. This would help areas of the United States which do not
yet have access to reliable and affordable electricity. Yes, there are
regions in the United States where electricity is not taken for
granted. My State of Alaska is one.
There is a related tax issue which must also be addressed in the
context of comprehensive legislation. That is the tax-exempt municipal
bond issue, creating a level competitive playing field between
investor-owned utilities and municipally-owned utilities.
Because this is important to both municipally-owned and investor-
owned utilities, I will talk about the problem for a moment. First,
under the U.S. Tax Code, municipally-owned utilities can issue tax-
exempt bonds to build new generation, transmission, and distribution
facilities, but investor-owned utilities cannot issue tax-exempt bonds
for these purposes. This gives municipally-owned utilities a taxpayer-
provided competitive advantage to the extent they are able to use the
facilities built with tax-exempt bonds to compete against private power
which cannot use tax-exempt bonds.
On the flip side, under the Tax Code, municipal tax-exempt bonds are
subject to a private-use limitation. This means that if municipal
utilities go too far in competing against private utilities, if they
exceed their ``private use'' limitation allowed by the IRS, their bonds
are subject to retroactive taxation. This limits the ability of
municipal utilities to compete in the market. I assume we will hear
from them on that. There has to be some equity in this process.
The bottom line? We have a Tax Code that is not consistent with
today's competitive environment. Both municipal utilities and private
utilities are at risk. The issue must be addressed. It is not
necessarily part of the legislation I am introducing today because the
Tax Code issue is before the Finance Committee. I admit I am a member
of that committee. Both the administration and Senator Gorton have
legislative proposals pending before the Finance Committee.
[[Page S811]]
But I call, finally, upon industry--private power and public power--
to come and try to work out their differences on this and to bring
Congress a compromise proposal that both sides can live with because it
is something that simply has to be addressed. It is better to have the
parties resolve it than have a dictate from the Congress.
There are other issues of regional consideration that will need to be
addressed as part of comprehensive legislation. We need to resolve the
role of the Federal power marketing administrations in the marketplace,
including the Bonneville Power Administration. We also need to address
the role of one of the largest utilities in the United States, the TVA.
I look forward to working with Senators from the Northwest--I see one
on the floor--to address the Bonneville Power Administration issue, and
the Senators from the South to address the Tennessee Valley Authority
issue. I am convinced by promoting competition and protecting
reliability this legislation will benefit the consumers, the economy,
and our international competitors.
I, again, thank Senator Landrieu of Louisiana for cosponsoring this
legislation.
To reiterate, I rise to introduce legislation to promote competition
in the electric power industry. This legislation is bipartisan, it is
cosponsored by Senator Landrieu.
Let me first say that competition is not the goal of this
legislation. Instead, competition is the means to achieve the goal of
assuring consumers reliable and reasonably-priced electricity.
We have seen great benefits from bringing competition to other
industries such as natural gas, telecommunications, trucking and
airlines. In each case, competition reduced prices, enhanced supply and
encouraged innovation. There is every reason to expect that increased
competition in the electric power industry will likewise benefit
consumers. The Department of Energy agrees. It has projected consumer
savings of $20 billion per year.
Great progress has already been made in both retail competition and
wholesale competition. To date, retail competition programs have been
adopted by 24 States, which cover 60 percent of U.S. consumers. All of
the remaining States are now considering what kind of retail program
would best meet their local needs. Competition has been brought to the
interstate wholesale market through the enactment of the Energy Policy
Act of 1992 and FERC's subsequent issuance of Orders No. 888 and 889.
So the legislative task facing Congress is to build on this progress,
not to halt State progress on retail competition or to interfere with
FERC progress on wholesale competition.
The question is: How do we get there from here? How do we move the
electric power industry from regulation to competition? Should we
preempt the States and substitute Federal regulation for State
regulation, as some argue? Or should we instead deregulate to allow the
market to operate?
To me the answer is obvious: Competition must be market-based, not
government-run. We must stop having regulators pick winners and losers,
making decisions that ought to be made by the marketplace. Substituting
one regulator for another--Federal for State--is not deregulation. It's
just different regulation. Creating a one-size-fits-all Federal
solution may work in some States, but it will not work in all States.
For the market to work and for consumers to enjoy the benefits of
competition, we need to free the market from undue government
interference.
I have long said that the best way to move toward market competition
is to deregulate what we can, streamline what we cannot deregulate, and
to facilitate States moving forward on retail competition.
While I would like to deregulate the entire electric power industry,
I recognize that some regulation will remain necessary to protect
consumers. Where regulation is necessary, I believe that it should be
performed by the unit of government closest to the consumer. However,
where the matter to be regulated is in interstate commerce, FERC must
be the regulatory agency. Traditionally, States have regulated retail
matters directly affecting consumers, and the FERC has regulated
wholesale sales and transmission in interstate commerce. The
legislation I am today introducing retains this traditional division of
authority between the States and the FERC.
I will now outline the key provisions of the legislation.
One key element of this legislation is the creation of a clear
division of authority between the States and the Federal government.
The legislation makes it clear that States are responsible for retail
matters affecting consumers in their State, and the FERC is responsible
for interstate matters. Thus, States will continue to be responsible
for retail competition, and the FERC will continue to be responsible
for wholesale competition.
This clarification is necessary because when the Federal Power Act
was created in 1935, Congress did not foresee the current market and
industry structure. As a result, there are now ambiguities as to the
split in jurisdiction between the States and the Federal government.
This has resulted in uncertainty and increasing litigation. Creating a
jurisdictional ``bright line'' will help both States and the FERC move
forward with their efforts to promote competition in their respective
jurisdictions. Moreover, by creating clear lines of accountability, if
things don't work right we will know exactly where to point the finger.
Another major aspect of this legislation is that it will protect the
reliability of our electric power system. The legislation does so in
two different ways. First it creates a grid-wide reliability
organization that is given the enforcement authority necessary to
assure reliability. The language in the legislation is the industry-
supported North American Electric Reliability Council proposal, plus
additional reliability provisions proposed by Western Governors, State
public utility commissions and State energy officials. However, as much
as this new organization will help ensure reliability, it is not the
long-term solution. The real solution is to promote competition, and
that can only be accomplished though comprehensive legislation such as
this.
This legislation also includes provisions to provide access to all
interstate transmission lines, not just those owned by investor-owned
utilities. Under the Federal Power Act, Federally-owned utilities,
State-owned utilities, municipally-owned utilities and cooperatively-
owned utilities are all exempt from FERC's nondiscriminatory open
access transmission program. These exempt utilities do not have to
provide access to the transmission grid which adversely affects
competition in the interstate wholesale power market. This legislation
corrects that problem.
Another important aspect of this legislation is its confirmation that
States are not prevented from protecting consumers on a variety of
retail matters such as: distribution system reliability; safety;
obligation to serve; universal service; assured service to low-income,
rural and remote consumers; retail seller performance standards; and
protection against unfair business practices.
There are similar provisions which confirm that States are not
prevented from imposing a public interest charge to fund State programs
such as: ensuring universal electric service, particularly for
consumers located in rural and remote areas; environmental programs,
renewable energy conservation programs; providing recovery of industry
transition costs; providing transition costs for electricity workers
hurt by restructuring; and research and development on electric
technologies.
By including these provisions, my legislation will ensure that States
and State public utility commissions are fully capable of protecting
consumers and promoting the public interest.
The legislation also contains a number of other important provisions
including repeal of PURPA's mandatory purchase requirement, repeal of
PUHCA and assuring funding for nuclear power plant decommissioning.
One provision in this legislation that I expect to be controversial
is eminent domain authority to construct new interstate transmission
lines. The provisions of the bill make this construction authority
available in situations where there is a regional transmission planning
process that provides for full
[[Page S812]]
public input, and is reviewed and approved by the FERC; and the
transmission project cannot otherwise be constructed either because the
State does not have the necessary authority, or because the State has
delayed action for more than one year; and the FERC, through a formal
public process with all legal rights protected, finds that the new
transmission line is in the public convenience and necessity.
When authorizing this construction, the legislation gives the FERC
full authority to impose any requirements that are necessary to protect
the public interest.
You might ask: Why include such a potentially controversial
provision? There are three reasons.
The first reason is supply. We must have transmission lines if we are
going to get electricity to consumers and industry. It is a simple fact
of physics that you can't move electricity without power lines.
The second reason is market power. As you know, market power exists
where there is more demand than an existing transmission line can
handle--a bottleneck. There are two possible ways to address a
bottleneck. The first is full regulation of the bottleneck transmission
facility, with regulators picking the winners and losers. But that does
not solve the problem, it just allocates the problem. The other is the
free market approach. Let those who want to move their electric power
to market build a new transmission line around the bottleneck--or at
least have a credible threat to build if the owner of the bottleneck
transmission line does not offer them a fair deal.
The third reason is reliability. Based on events over that past
several years, it is clear that we need to enhance our transmission
system if we are going to meet consumer needs during peak periods of
demand.
For those who think eminent domain is a brand-new idea for energy
facilities--it isn't. The Federal Power Act already gives Federal
eminent domain for hydroelectric dams and their associated electric
transmission lines. Similarly, the Natural Gas Act gives Federal
eminent domain for interstate natural gas pipelines. If it works for
interstate natural gas pipelines, it will work for interstate electric
transmission lines.
Turning now to regional transmission organizations, the legislation I
am today introducing retains the RTO provisions that were in my draft
bill. While Order No. 2000 has many good aspects--its voluntary nature,
flexibility, open architecture and transmission incentives--it does
have some serious deficiencies. I am especially concerned about two key
issues.
First, Order No. 2000 prohibits any active ownership of the RTO by a
utility or market participant after a five year transition period.
Oddly, this applies even to someone who only owns transmission.
Clearly, this will discourage participation in RTOs by transmission
owners.
Second, by denying transmission owners the ability to design and file
complete transmission rates with FERC, Order No. 2000 creates confusion
at best, and at worst it may deny transmission owners their rights
under law to recover all of their prudently incurred costs.
If these and other deficiencies are not corrected, FERC Order No.
2000 may be litigated for years, creating great uncertainty in RTO
formation. In light of the increasing concerns about grid reliability,
delay in RTO formation would be particularly troublesome as Order No.
2000 makes RTOs directly responsible for short-term reliability.
Let me mention some significant matters that need to be addressed
during the legislative process.
For example, there is the important issue of streamlining and
speeding up the FERC merger review process. Utilities are rightfully
distressed that FERC's process takes far too long and is much too
cumbersome.
We also need to consider the creation of a universal service fund--
similar to that which Congress included in the telecommunications
legislation. This would help areas which do not have access to reliable
and affordable electricity. And yes, there are regions of the United
States where electricity is not taken for granted.
Another controversial issue that we must deal with in the context of
comprehensive legislation is the tax-exempt municipal bond issue,
creating a level competitive playing field between investor-owned
utilities and municipally-owned utilities. Under the U.S. Code
municipally-owned utilities can issue tax-exempt bonds to build new
generation, transmission and distribution facilities, but investor-
owned utilities cannot issue tax-exempt bonds for these purposes. This
gives municipally-owned utilities a taxpayer-provided competitive
advantage to the extent they are able to use facilities built with tax-
exempt bonds to compete against private power--who cannot use tax-
exempt bonds in the same way. But on the flip-side--under the tax code
municipal tax-exempt bonds are subject to a ``private use'' limitation.
This means that if municipal utilities go too far in competing against
private utilities--if they exceed their ``private use'' limitation
allowed by the IRS regulation--then their bonds are subject to
retroactive taxation. This limits the ability of municipal utilities to
compete in the market. The bottom line? We have a tax code that is not
consistent with today's competitive environment, putting both municipal
utilities and private utilities at risk.
Although this issue must be addressed, it is not a part of the
legislation I am introducing because it is a tax code issue that is now
before the finance committee. Both the Administration and Senator
Gorton have legislative proposals pending before the finance committee.
I call upon the industry--private power and public power--to work out
their differences and to bring Congress a compromise proposal--that
both sides can live with.
There are also a number of other regional issues that will need to be
addressed as a part of comprehensive legislation. For example, we need
to resolve the role of the Federal power marketing administrations in
he marketplace--including the Bonneville Power Administration. We also
need to address the role of one of the largest utilities in the United
States--the Tennessee Valley Authority.
I am convinced that by promoting competition in the electric power
industry and by addressing the reliability issue, this legislation will
benefit consumers, our economy and our international competitiveness.
Like the Secretary of Energy, I believe that it is now time to move
forward with legislation. I hope that my colleagues agree.
______
By Mr. REED:
S. 2099. A bill to amend the Internal Revenue Code of 1986 to require
the registration of handguns, and for other purposes; to the Committee
on Finance.
handgun safety and registration act of 2000
Mr. REED. Mr. President, I rise today to introduce the Handgun
Safety and Registration Act of 2000, which would enable law enforcement
agencies nationwide to more easily trace handguns used in crime, and
provide background checks and registration by law enforcement of all
primary and secondary transfers of handguns, including retail sales,
Internet sales, gun shows, and all other private transfers. This
legislation is supported by Handgun Control, Inc., the Violence Policy
Center, the NAACP, and Physicians for Social Responsibility.
Many Americans are unaware that there is a successful federal weapons
registration system already in place under the 1934 National Firearms
Act (NFA). The NFA requires registration of all machine guns, short-
barrel shotguns and short-barrel rifles, silencers, bombs, grenades,
and other specialized weapons. The NFA is successfully and efficiently
administered by the Department of the Treasury's Bureau of Alcohol,
Tobacco and Firearms (ATF).
The Handgun Safety and Registration Act would require the
registration of all handguns under the NFA within one year of
enactment. I know some of my colleagues may question why this bill is
needed. First, the bill would help law enforcement more effectively
trace handguns used in crime by making registration data available on-
line to state and local law enforcement agencies. Tracing methods used
today are extremely cumbersome and favor the criminal over the police.
When a gun used to commit a crime is recovered, a state or local law
enforcement agency contacts ATF with the name of the manufacturer and
the serial number of the handgun--if it has not been removed by the
criminal. ATF in turn
[[Page S813]]
contacts the manufacturer, which provides the name of the wholesale or
retail dealer to whom the handgun was sold. ATF then contacts the
dealer to obtain the name of the individual or another retail dealer
who purchased the handgun.
All too often, this is where the trail goes cold, and another gun
crime may go unsolved. If the individual handgun owner has sold the gun
to another person in a private sale, there is no way for law
enforcement to follow the path of the handgun without time-consuming
detective work and a good deal of luck. Subsequent private transfers or
gun show sales are similarly unrecorded, making law enforcement's job
even more difficult. Even before the first retail sale, law enforcement
is completely dependent upon the record keeping of gun manufacturers
and gun dealers to follow the trail of a handgun from manufacture to
criminal use. There is no law enforcement database of handgun
production or sales in the United States. The Handgun Safety and
Registration Act would give the advantage back to the police by making
handgun registration data available to law enforcement in an easily
accessible format.
Mr. President, in addition to improving law enforcement's tracing
capabilities, the Handgun Safety and Registration Act would help
prevent handguns from ending up in the possession of people who are
likely to commit gun crimes. The bill would require registration of all
handguns, including those currently in private possession, and would
make it a felony for any person to transfer a handgun to another
individual without prior law enforcement approval. As it currently does
for all NFA weapons, ATF would conduct a background check on the
transferee through the National Crime Information Center (NCIC), the
Treasury Enforcement Communications System (TECS), and the National Law
Enforcement Tracking System (NLETS). This would provide a clear
incentive for all handgun owners and dealers to exercise great caution
when they choose to sell or otherwise transfer a handgun to another
person.
It is my hope that by requiring registration of all handguns under
the National Firearms Act, we can give law enforcement officials the
tools to conduct faster and more reliable tracing of handguns used in
crime, and prevent handguns from falling into criminal hands in the
first place. The Handgun Safety and Registration Act of 2000 would
accomplish these goals without restricting in any way the possession or
sale of hunting rifles or shotguns used by law-abiding sportsmen across
the country.
I encourage my Senate colleagues to support this important
legislation as we seek effective ways to help law enforcement reduce
gun violence in America.
______
By Mr. EDWARDS (for himself, Mr. Lautenberg, and Mr. Torricelli):
S. 2100. A bill to provide for fire sprinkler systems in public and
private college and university housing and dormitories, including
fraternity and sorority housing and dormitories; to the Committee on
Health, Education, Labor, and Pensions.
College Fire Prevention Act
Mr. EDWARDS. Mr. President, today with my colleagues Senator
Lautenberg and Senator Torricelli, I introduce the College Fire
Prevention Act. This measure would provide federal matching grants for
the installation of fire sprinkler systems in college and university
dormitories and fraternity and sorority houses.
Mr. President, the tragic fire that occurred at Seton Hall University
on Wednesday, January 19th of this year will not be long forgotten.
Sadly, three freshman, all 18 years old, died. Fifty-four students, two
South Orange firefighters and two South Orange police officers were
injured. The dormitory, Boland Hall, was a six-story, 350 room
structure built in 1952 that housed approximately 600 students.
Astonishingly, the fire was contained to the third floor lounge of
Boland Hall. This dormitory was equipped with smoke alarms but no
sprinkler system.
Unfortunately, the Boland Hall fire was not the first of its kind.
And it reminded many people in North Carolina of their own tragic
experience with dorm fires. In 1996, on Mother's Day and Graduation
Day, a fire in the Phi Gamma Delta fraternity house at the University
of North Carolina at Chapel Hill killed five college juniors and
injured three others. This fraternity house was 70 years old. The
National Fire Protection Association identified several factors that
contributed to the tragic fire, including the lack of fire sprinkler
protection.
Sadly, there have been countless other dorm fires. On December 9,
1997, a student died in a dormitory fire at Greenville College in
Greenville, Illinois. The dormitory, Kinney Hall, was built in the
1960s and had no fire sprinkler system. On January 10, 1997, a student
died at the University of Tennessee at Martin. The dormitory, Ellington
Hall, had no fire sprinkler system. On January 3, 1997, a student died
in a dormitory fire at Central Missouri State University in
Warrensburg, Missouri. On October 21, 1994, five students died in a
fraternity house fire in Bloomsburg, Pennsylvania. The list goes on and
on. In a typical year between 1980 and 1997, the National Fire
Protection Association estimates there were an average of 1,800 fires
at dormitories, fraternities, and sororities, involving 1 death, 69
injuries, and 8.1 million dollars in property damage.
So now we must ask, what can be done? What can we do to curtail these
tragic fires from taking the lives of our children . . . our young
adults? We should focus our attention on the lack of fire sprinklers in
college dormitories and fraternity and sorority houses. Sprinklers save
lives. Indeed, the National Fire Protection Association has never
recorded a fire that killed more than 2 people in a public assembly,
educational, institutional, or residential building where a sprinkler
system was operating properly.
Despite the clear benefits of sprinklers, many college dorms do not
have them. New dormitories are generally required to have advanced
safety systems such as fire sprinklers. But such requirements are
rarely imposed retroactively on existing buildings. In 1997, over 90
percent of the campus building fires reported to fire departments
occurred in buildings where there were smoke alarms present. However,
only 28 percent of them had fire sprinklers present.
At my state's flagship university at Chapel Hill, for example, only
six of the 29 residence halls have sprinklers. A report published by
The Raleigh News & Observer in the wake of the Seton Hall fire also
noted that only seven of 19 dorms at North Carolina State University
are equipped with the life-saving devices, and there are sprinklers in
two of the 10 dorms at North Carolina Central University. At Duke
University, only five of 26 dorms have sprinklers.
Mr. President, the legislation I introduce today authorizes the
Secretary of Education, in consultation with the United States Fire
Administration, to award grants, on a competitive basis, to States,
private or public colleges or universities, fraternities, or sororities
to assist them in providing fire sprinkler systems for their student
housing and dormitories. These entities would be required to produce
matching funds equal to one-half of the cost. This legislation
authorizes $100 million for fiscal years 2001 through 2005.
In North Carolina, we decided to initiate a drive to install
sprinklers in our public college and university dorms. The overall cost
is estimated at $57.5 million. Given how much it is going to cost North
Carolina's public colleges and universities to install sprinklers, I
think it's clear that the $100 million that this measure authorizes is
just a drop in the bucket. But my hope is that by providing this small
incentive we can encourage more colleges to institute a comprehensive
review of their dorm's fire safety and to install sprinklers. All they
need is a helping hand. With this modest measure of prevention, we can
help prevent the needless and tragic loss of young lives.
Mr. President, parents should not have to worry about their children
living in fire traps. When we send our children away to college, we are
sending them to a home away from home where hundreds of other students
eat, sleep, burn candles, use electric appliances and smoke. We must
not compromise on their safety. As the Fire Chief from Chapel Hill
wrote me: ``Parents routinely send their children off
[[Page S814]]
to college seeking an education unaware that one of the greatest
dangers facing their children is the fire hazards associated with
dormitories, fraternity and sorority houses and other forms of student
housing. . . . The only complete answer to making student-housing safe
is to install fire sprinkler systems.'' In short, the best way to
ensure the protection of our college students is to install fire
sprinklers in our college dormitories and fraternity and sorority
houses. My proposal has been endorsed by the National Fire Protection
Association and the College Parents of America. I ask all of my
colleagues to join me in supporting this important legislation. Thank
you.
Mr. President, I ask unanimous consent that a copy of the
legislation, the letters of support and a partial list of fatal college
fires be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2100
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``College Fire Prevention
Act.''
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) On Wednesday, January 19, 2000, a fire occurred at a
Seton Hall University dormitory. Three male freshmen, all 18
years of age, died. Fifty-four students, 2 South Orange
firefighters, and 2 South Orange police officers were
injured. The dormitory was a 6-story, 350-room structure
built in 1952, that housed approximately 600 students. It was
equipped with smoke alarms but no fire sprinkler system.
(2) On Mother's Day 1996 in Chapel Hill, North Carolina, a
fire in the Phi Gamma Delta Fraternity House killed 5 college
juniors and injured 3. The 3-story plus basement fraternity
house was 70 years old. The National Fire Protection
Association identified several factors that contributed to
the tragic fire, including the lack of fire sprinkler
protection.
(3) It is estimated that in a typical year between 1980 and
1997, there were an average of 1,800 fires at dormitories,
fraternities, and sororities, involving 1 death, 69 injuries,
and $8,100,000 in property damage.
(4) Within dormitories the number 1 cause of fires is arson
or suspected arson. The second leading cause of college
building fires is cooking, while the third leading cause is
smoking.
(5) The National Fire Protection Association has no record
of a fire killing more than 2 people in a completely fire
sprinklered public assembly, educational, institutional, or
residential building where the sprinkler system was operating
properly.
(6) New dormitories are generally required to have advanced
safety systems such as fire sprinklers. But such requirements
are rarely imposed retroactively on existing buildings.
(7) In 1997, over 90 percent of the campus building fires
reported to fire departments occurred in buildings where
there were smoke alarms present. However, only 28 percent had
fire sprinklers present.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
Act $100,000,000 for each of the fiscal years 2001 through
2005.
SEC. 4. GRANTS AUTHORIZED.
(a) Program Authority.--The Secretary of Education, in
consultation with the United States Fire Administration, is
authorized to award grants, on a competitive basis, to
States, private or public colleges or universities,
fraternities, or sororities to assist them in providing fire
sprinkler systems for their student housing and dormitories.
(b) Matching Funds Requirement.--The Secretary of Education
may not award a grant under this section unless the entity
receiving the grant provides, from State, local, or private
sources, matching funds in an amount equal to not less than
one-half of the cost of the activities for which assistance
is sought.
SEC. 5. PROGRAM REQUIREMENTS.
(a) Award Basis.--In awarding grants under this Act the
Secretary of Education shall take into consideration various
fire safety factors and conditions that the Secretary
determines appropriate.
(b) Limitation on Administrative Expenses.--An entity that
receives a grant under this Act shall not use more than 4
percent of the grant funds for administrative expenses.
SEC. 6. DATA AND REPORT.
The Comptroller General shall--
(1) gather data on the number of college and university
housing facilities and dormitories that have and do not have
fire sprinkler systems and other forms of built-in fire
protection mechanisms; and
(2) report such data to Congress.
____
Town of Chapel Hill,
Fire Department,
Chapel Hill, NC, February 15, 2000.
Sen. John Edwards,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Edwards, One of the most unrecognized fire
safety problems in America today is university and college
student housing. Parents routinely send their children off to
college seeking an education unaware that one of the greatest
dangers facing their children is the fire hazards associated
with dormitories, fraternity and sorority houses and other
forms of student housing. We in Chapel Hill experienced a
worst-case scenario, when in 1996 a fire in a fraternity
house on Mother's Day/Graduation Day claimed five young lives
and injured three more. We recognized the only complete
answer to making student-housing safe is to install fire
sprinkler systems.
I have had the privilege of reading a draft copy of your
legislation creating a matching grants program for
universities, colleges and fraternity/sorority house who take
the lifesaving step of installing fire sprinkler systems. I
strongly urge you to introduce this legislation and I pledge
to assist your staff in promoting this important bill and
help to develop bi-partisan support for it. Your proposed
legislation is the only real solution to the fire threat in
student housing.
After ten years of being responsible for fire protection at
the University of North Carolina--Chapel Hill, I am convinced
that where students reside, alarms systems are not enough,
clear exit ways are not enough, quick fire department
response is not enough and educational programs are not
enough. The only way you can insure fire safety for college
student housing is to place a fire sprinkler system over
them. Thank you for recognizing the magnitude of this threat
and for proposing the solution to it.
Tell me how we can help.
Sincerely,
Daniel Jones,
Fire Chief.
____
College Parents of America,
Washington, DC, February 15, 2000.
Hon. John Edwards,
U.S. Senate, Washington, DC.
Dear Senator Edwards: College Parents of America (CPA)
would like to commend you on the introduction of grant
legislation to encourage public and private colleges,
universities, fraternities and sororities to install
sprinkler systems in all dormitories and other forms of group
housing.
Today college parents represent an estimated 12 million
households. An additional 24 million households are currently
saving and otherwise preparing children for college. College
Parents of America is the only national membership
association dedicated to helping these parents prepare for
and put their children through college easily, economically
and safely.
College Parents of America places a high priority on
ensuring safety in student housing. In fact, CPA is urging
parents and students during their college evaluation process
to make sure there are smoke alarms, sprinkler systems and
scheduled drills in all campus housing and classroom
buildings. While the financing and installation of smoke
alarms are relatively easy, funding is cited as a challenge
in the installation of sprinkler systems in many older
residential buildings on the nation's campuses. Your grant
legislation will provide a vehicle for institutions to ensure
all student residential facilities have adequate sprinkler
safety systems. As a result, the grant legislation will not
only save millions of dollars annually from property damage,
but also save young lives.
Please let me know how and when I can provide assistance. I
look forward to working together to pass this important piece
of legislation.
Sincerely,
Richard M. Flaherty.
____
National Fire Protection
Association,
Arlington, VA, February 23, 2000.
Sen. John Edwards,
U.S. Senate, Senate Hart Building, Washington, DC.
Dear Senator Edwards: On behalf of the National Fire
Protection Association (NFPA) and its 68,000 members, we are
pleased to support your legislative efforts to provide
federal assistance for the installation of fire sprinkler
systems in college and university housing and dormitories.
Our statistics show that properly installed and maintained
fire sprinkler systems have a proven track record of
protecting lives and property in all types of occupancies. In
particular, the retrofitting of fire sprinkler systems in
college and university housing will greatly improve the
safety of these public and private institutions.
Thank you for the opportunity to be of assistance in this
important initiative.
Sincerely,
Anthony R. O'Neill,
Vice President, Government Affairs.
[[Page S815]]
NFPA FIDO SUMMARY REPORT FATAL COLLEGE/UNIVERSITY FRATERNITY AND
SORORITY HOUSE FIRES REPORTED TO U.S. FIRE DEPARTMENTS
------------------------------------------------------------------------
Date Location Deaths Injuries
------------------------------------------------------------------------
March 24, 1973................ Auburn University, 1 0
Auburn, AL.
February 23, 1974............. Kents Hill School, 1 0
Readfield, ME.
March 16, 1975................ Kappa Sigma 1 1
Fraternity House,
Burlington, VT.
July 22, 1975................. Tank Hall MIT 1 0
Dormitory,
Cambridge, MA.
January 8, 1976............... Alpha Rho Chi 2 6
Fraternity House,
Columbus, OH.
April 5, 1976................. Wilmarth Dorm, 1 27
Skidmore College,
Saratoga Springs, NY.
August 29, 1976............... Kappa Sigma 5 2
Fraternity House,
Baldwin City, KS.
December 13, 1977............. Providence College, 10 16
Providence, RI.
January 14, 1978.............. Alpha Tau Omega 1 2
Fraternity House,
University Park, TX.
March 4, 1979................. Slippery Rock State 1 3
College, Slippery
Rock, PA.
April 5, 1980................. Sigma Alpha Epsilon 1 1
Fraternity House,
Eugene, OR.
July 2, 1980.................. Dncer Hall University 1 0
of North Iowa, Cedar
Falls, IA.
September 20, 1981............ Davis Dormitory Texas 1 8
College, Tyler, TX.
March 16, 1982................ Dormitory University 1 0
of Chicago, Chicago,
IL.
September 9, 1982............. Phi Kappa Theta 1 8
Fraternity House,
Philadelphia, PA.
September 18, 1982............ Dormitory Clark 1 3
University,
Worcester, MA.
May 28, 1983.................. Alpha Epsilon 1 1
Fraternity House,
Bridgewater, MA.
December 11, 1983............. Lambda Chi Alpha 1 1
Fraternity House,
Austin, TX.
January 6, 1984............... Pi Kappa Alpha 1 0
Fraternity House,
Thibodaux, LA.
April 11, 1984................ Phi Gamma Delta 1 0
Fraternity House,
Lexington, VA.
October 21, 1984.............. Zeta Beta Tau 1 30
Fraternity House,
Bloomington, In.
December 20, 1984............. Prometheus House (Pi 1 0
Kappa Sigma),
Geneseo, NY.
March 3, 1985................. Alpha Tau Omega 1 1
Fraternity House,
San Jose, CA.
April 19, 1986................ Delta Kappa Epsilon 1 0
Fraternity House,
Danville, KY.
November 29, 1986............. Russell Apt. Building 1 1
Busch Campus, N.
Brunswick, NJ.
April 12, 1987................ Wesley College- 1 4
Williams College.
September 8, 1990............. Phi Kappa Sigma 3 2
Fraternity House,
Berkeley, CA.
December 8, 1990.............. Lambda Chi Fraternity 1 4
House, Erie PA.
February 13, 1992............. Phi Kappa Theta 1 0
Fraternity House,
California, PA.
October 24, 1993.............. Alpha Xi Delta 1 2
Sorority House,
LaCrosse, WI.
October 21, 1994.............. Beta Sigma Delta 5 0
Fraternity House,
Bloomsburg, PA.
May 12, 1996.................. Phi Gamma Delta 5 3
Fraternity House,
Chapel Hill, NC.
October 19, 1996.............. Phi Delta Theta 1 0
Fraternity House,
Delaware, OH.
January 3, 1997............... CMSU-Foster-Knox 1 0
Hall, Warrensburg,
MO.
January 10, 1997.............. Hannings Ln-UTM- 1 5
Ellington Hall,
Martin, TN.
February 20, 1997............. Gramercy Park-School 1 0
of Visual Arts,
Brooklyn, NY.
December 9, 1997.............. Greenville College- 1 0
Kinney Hall,
Greenville, IL.
------------------------------------------------------------------------
This table lists fatal college dormitory and fraternity and sorority
houses fires and associated losses reported to the National Fire
Protection Association's Fire Incident Data Organization. This listing
should not be considered complete since only those incidents for which
information was collected by the National Fire Protection Association
were listed.
Revised: 3/99
Mr. LAUTENBERG. Mr. President, today I am pleased to join my
colleague from North Carolina, Senator Edwards, in introducing the
College Fire Prevention Act.
On Wednesday, January 19, 2000, a fire raged through a dormitory at
Seton Hall University, claiming the lives of three students and
injuring 58 others, including at least 54 students, two police officers
and two firefighters. The dormitory, Boland Hall, was built in 1952,
and although it was equipped with smoke detectors, it was not required
to be equipped with a fire sprinkler system.
Nothing is as painful as a senseless accident that takes the lives of
young people. And unfortunately, the Seton Hall community is not alone
in its grief. In fact, in the last decade, 18 young people lost their
lives in dormitory fires. We must do all we can to prevent future
tragedies. Students have a fundamental right to pursue an education in
a safe, secure environment. Parents have a right to know that their
children are protected from harm while on school property.
That is why I am pleased to be an original cosponsor of this
legislation to provide Federal matching grants for the installation of
fire sprinkler systems in student housing. This bill authorizes the
Secretary of Education, in consultation with the U.S. Fire
Administration, to award grants to equip dormitories, sorority, and
fraternity houses with fire sprinkler systems.
I thank Senator Edwards for sponsoring this important legislation,
and I look forward to working with him to ensure that student housing
is as safe as possible.
______
By Mr. INOUYE (for himself, Mrs. Feinstein, and Mrs. Boxer):
S. 2102. A bill to provide to the Timbisha Shoshone Tribe a permanent
land base within its aboriginal homeland, and for other purposes; to
the Committee on Indian Affairs.
timbisha shoshone homeland act
Mr. INOUYE. Mr. President, I am pleased to rise today to join
with my distinguished colleagues from California, Senator Feinstein and
Senator Boxer, in introducing legislation that would provide a
permanent land base for the Timbisha Shoshone Tribe.
For thousands of years the Timbisha Shoshone Tribe has lived in and
around the area that is now Death Valley National Park. For many years,
the Tribe sought unsuccessfully to obtain a base of trust land within
its aboriginal homeland area. In 1994, when the Congress enacted the
California Desert Protection Act, P.L. 103-433, it set in motion a
process to address the need of the Tribe for a recognized land base.
Section 705(b) of the Act provided that--
The Secretary, in consultation with the Timbisha Shoshone
Tribe and relevant Federal agencies, shall conduct a study,
subject to the availability of appropriations, to identify
lands suitable for a reservation for the Timbisha Shoshone
Tribe that are located within the Tribe's aboriginal homeland
area within and outside the boundaries of Death Valley
National Monument and the Death Valley National Park as
described in part A of this subchapter.
The study report, which finally was completed late in 1999, set forth
recommendations for legislation that would implement a comprehensive,
integrated plan for a permanent Homeland for the Tribe. The legislation
that we introduce today would give substance to those recommendations.
Briefly, the bill provides for the transfer of several separate
parcels of land, currently administered by the Department of the
Interior and comprising approximately 7,500 acres, in trust for the
Timbisha Shoshone Tribe. These parcels include: 300 acres at Furnace
Creek in Death Valley National Park encompassing the present Timbisha
Village Site, subject to jointly developed land use restrictions
designed to ensure compatibility and consistency with tribal and Park
values, needs and purposes; 1,000 acres of land now managed by the
Bureau of Land Management at Death Valley Junction, California, east of
the Park; 640 acres of land now managed by the Bureau of Land
Management in an area identified as Centennial, California, west of the
Park; 2,800 acres of land now managed by the Bureau of Land Management
and classified as available for disposal near Scotty's Junction,
Nevada, northeast of the Park; and 2,800 acres now managed by the
Bureau of Land Management and classified as available for disposal near
Lida, Nevada, north of the Park.
This legislation also authorizes the Secretary of the Interior to
purchase from willing sellers two parcels of approximately 120 acres of
former Indian allotted lands in the Saline Valley, California, at the
edge of the Park, and the 2,430 acre Lida Ranch near Lida, Nevada.
The legislation would designate an area primarily in the western part
of Death Valley National Park as the Timbisha Shoshone Natural and
Cultural Preservation Area, within which low impact, environmentally
sustainable, tribal traditional uses, activities and practices will be
authorized subject to existing law and a jointly established management
plan agreed upon
[[Page S816]]
by the Tribe, the National Park Service and the Bureau of Land
Management.
Mr. President, this legislation will at long last provide the
Timbisha Shoshone Tribe with land on which its members can live
permanently and govern their affairs in a modern community, and will
formally recognize the Tribe's contributions to the history, culture,
and ecology of the Death Valley National Park and the surrounding area.
It will ensure that the resources within the Park are protected and
enhanced by cooperative activities within the Tribe's ancestral
homeland, and by partnerships between the Tribe and the National Park
Service and the Bureau of Land Management, all of which will be
consistent with the purposes and values for which the Park was
established.
Mr. President, the legislation we are introducing today is incomplete
in that certain map references and specific acreage numbers are still
being determined by the Department. However, these are minor concerns
that will be addressed in the coming weeks. It is vitally important
that this legislation be introduced so that a hearing can be scheduled
and all interested parties will have the opportunity to review this
measure prior to the hearing.
______
By Mr. HATCH (for himself and Mr. Leahy):
S. 2105. A bill to amend chapter 65 of title 18, United States Code,
to prohibit the unauthorized destruction, modification, or alteration
of product identification codes used in consumer product recalls, for
law enforcement, and for other purposes; to the Committee on the
Judiciary.
anti-tampering act of 2000
Mr. HATCH. Mr. President, I rise today to introduce with my good
friend from Vermont, the distinguished Ranking Minority Member of the
Senate Judiciary Committee, Senator Leahy, the ``Anti-Tampering Act of
2000.'' In short, this bill prohibits tampering with product
identification codes--a practice that threatens the health and safety
of US consumers, frustrates legitimate forensic activities of law
enforcement, and impairs manufacturers' ability to protect their
distribution channels, thereby exposing them to significant product
liability exposure.
Let me take just a moment to explain the need for this bill.
Manufacturers code their products in order to protect their consumers
and to assist law enforcement in investigating consumer complaints, as
well as in conducting recalls of tampered products. These codes assist
the manufacturer and law enforcement in tracing goods back to a
particular lot, batch or date of production. They include batch codes,
expiration dates, lot numbers, and other information that one can
typically see imprinted on the bottom or side of most products.
Legitimate goods produced by manufacturers are obtained by
``illegitimate decoders'', frequently by fraud, theft or false
pretenses. These decoders then decode and otherwise tamper with product
labeling to avoid detection so that they may sell these ill-gotten
goods to unauthorized points of sale. The frightening aspect of this
activity, Mr. President, is that a substantial portion of the US-made
goods sold by illegitimate decoders have been adulterated or otherwise
tampered with after manufacture, and present health and safety risks to
consumers.
Incredible as it may seem, thieves routinely tamper with product
identification codes on stolen goods; counterfeiters affix fake codes
on gray market goods that are then mixed with counterfeits; and
distributors who have broken their distribution contracts with
manufacturers typically obliterate product identification codes.
Because gray market activity is largely lawful in the US, the
diverters' distribution channels have been used by professional thieves
and counterfeiters to traffic in their illegal merchandise. There
appears to be a connection between counterfeit and decoded imports, and
anti-counterfeiting enforcement efforts will be frustrated unless
greater controls are placed on the importation of such decoded
products. Regrettably, gray market networks are increasingly being used
for the distribution and sale of counterfeit goods. Distributors have
been found to sell counterfeit goods--from baby shampoo to infant
formula to cosmetics and fragrances--purchased through gray market
channels.
In short, Mr. President, goods are decoded to hide evidence of
fraudulent, unlawful conduct and to traffic in stolen, counterfeit,
misbranded, out-of-date and unlawfully diverted merchandise.
Let me offer you a few examples of the significant health and safety
risks presented by this activity. As noted by the International Formula
Council, product identification codes are, without question, the single
most important factor in a successful recall. In recent years, this
link between product coding and consumer protection has become
increasingly evident. Following the Tylenol poisonings of 1982, product
coding enabled Johnson & Johnson to identify the tainted production
lots and issue a nationwide recall of potentially dangerous products.
Similarly, the manufacturers of automobiles, toys, food products and
other consumer goods have consistently relied upon product coding to
identify and recall goods that fail to meet consumer quality and safety
standards.
Last year, the FDA used product codes to quickly identify a shipment
of contaminated strawberries that had caused an outbreak of hepatitis
in Michigan schools. More recently, the Slim Fast Corporation relied on
product codes to identify and recall 192,000 cans of its ready-to-drink
diet shakes because, according to the New York Times (Apr. 18, 1999),
some of the cans might have been filled with a diluted cleaning
solution. In addition, this summer, a leading manufacturer of infant
formula used its product codes to identify and recall 7,000 cases of
infant formula after a labeling error resulted in distribution of
infant formula cans that may have contained an adult nutritional
supplement that could have been harmful to infants. (USA Today, June 9,
1999.)
An undercover investigation by the Food and Drug Administration's
Office of Criminal Investigation in New York involved wholesale
purchases of expensive fertility drugs. Fraudulent code numbers
appeared on the counterfeit packaging containing these injectible
products. Although laboratory analysis indicated the presence of the
active ingredient in these products, the FDA was not able to determine
the place or conditions of their manufacture because of the absence of
legitimate batch code data.
Fraudulent product identification coding has even been used in
schemes involving bulk food products such as metric tons of frozen
shrimp. For instance, a Florida indictment charged an importer with
criminal offenses involving the repeated ``washing, mixing and
soaking'' of putrid and decomposed shrimp in a solution containing
copper sulfate, chlorine, lemon juice and other chemicals to conceal
the inferiority of the product. Central to this scheme was the ``re-
coding'' of product lots as they were repeatedly rejected by buyers,
chemically treated, and re-sold to others who did not know the
products' history.
In short, without product coding, the task of identifying and
recalling defective goods becomes infinitely more difficult and often
impossible, leaving consumers exposed to potential harm, illness and
even death. According to the U.S. Consumer Product Safety Commission,
there were 273 product recalls last year and, on average, one high
profile recall each week.
In addition to the health and safety risks presented by this conduct,
Mr. President, there is an additional, equally significant public
policy interest served by this bill: codes play a vital part in
traditional law enforcement activities. They assist law enforcement in
investigating criminal activity, and they further aid in tracking
stolen goods. They play a critical role in certain criminal
investigations, allowing law enforcement officers to pinpoint the
location and in some cases--including the World Trade Center bombing--
the identity of the offender. In cases of stolen or tainted goods,
product codes point to the source of the product and the site of the
crime.
Unfortunately, Mr. President, there is no single federal statute that
adequately addresses the problem of product identification code
tampering of all consumer products. Federal law only applies to a
limited category of consumer products. Moreover, federal law only
applies if the decoder or tamperer
[[Page S817]]
exhibits criminal intent to harm the consumer. It does not address the
vast majority of decoding cases that could result in harm to the
consumer, but do not involve the specific intent to harm the consumer.
Moreover, violations of current federal law result in only a
misdemeanor.
By criminalizing tampering with product identification codes, we hope
to send a clear message to the professional criminals: We value the
lives and well being of Americans and will not tolerate this conduct
any more on our soil. You, the professional criminal, will persist in
this activity at your economic and personal peril.
Under the bill, tampering with product codes of pharmaceuticals,
over-the-counter medicines consumer products, health and beauty aids,
and other goods will constitute a criminal offense. Criminalizing this
conduct will result in strengthened law enforcement tools, greater
consumer protections and greater security for manufacturers' products.
Mr. President, I believe it would be instructive to identify what
this bill does not do, as there has been some misinformation about this
measure. The bill does not restrict, prohibit, criminalize or otherwise
impair lawful, arms-length diversion activity. In short, Mr. Chairman,
the bill does not affect the legality or illegality of the gray market.
It simply prohibits tampering with product identification codes.
Diverters can continue to engage in parallel importing to the same
extent after passage of this measure as they have in the past. However,
to be clear, Mr. Chairman, they must do so without obliterating the
product identification codes or affixing fake codes on the goods.
Moreover, unintentional acts of decoding or other activities
associated with decoded products are not subject to criminal or civil
action, because the bill provides for a knowledge standard and
protection for innocent violators. Thus, the innocent store clerk who
merely scans merchandise at the check out counter and unwittingly
permits the sale of decoded merchandise need not worry. Nor should
either the innocent trucker who transports this merchandise or the
innocent distributor who engages in distributing this merchandise to
the retailer have cause for concern.
Others have expressed concern that enactment of the bill will result
in the end of discount retailers and discount prices. It is difficult
to understand this objection. I cannot conceive why discounting would
require altering the expiration dates or the source identifiers of the
goods, unless all discounts are illegally diverted or are product that
should be recalled. But risking the health and safety of American
consumers, or selling them inferior or fake goods to keep alive a
certain brand of ``discounting'' does not seem like much of a bargain
to me. Discounts are routinely offered when inventories build up or
styles change. Manufacturers and retailers will continue to discount
when this bill is enacted. But consumers will have greater assurance
that the discount they are receiving is not coming with an offsetting
risk that the product is contaminated or defective.
Finally, Mr. President, some argue that the bill's application to all
products is unnecessarily broad. The bill's several important public
policy goals require that it apply to all products. Let me explain why.
The bill is intended to ensure effective and targeted product recalls,
to enhance law enforcement investigations, and to protect American
consumers and the legitimate businesses who serve them from the
depredations of illegitimate diverters. Product recalls apply to all
products and law enforcement investigations implicate all products. For
instance, the codes on the batteries in the Olympic Park bombing in
Atlanta, Georgia were used to exonerate the security guard then under
suspicion in that case, Richard Jewell. The code on the microprocessor
chip on the bomb in the Pan Am air crash linked the bombing to
terrorists. And even on a more pedestrian level, the code on a crowbar
in a recent New York burglary led police to the criminal.
So, Mr. President, I am pleased to introduce this important measure
today. It enjoys the strong backing of the Coalition Against Product
Tampering (CAPT). The CAPT is a coalition of private sector companies,
consumer groups, unions and law enforcement agencies which are
concerned about product decoding and product tampering and the role
these activities play in fueling and supporting other criminal
enterprises, including money laundering, organized retail theft, and
counterfeiting. I would ask unanimous consent, Mr. President, that the
CAPT's membership list be included in the record after my remarks. I
have received numerous members of this group expressing their support
for the legislation introduced today.
In conclusion, Mr. President, law enforcement, consumer groups,
unions, and others agree with me that intentional decoding of products
threatens the health and safety of American consumers. According to the
National Association of Manufacturers, manufacturers cannot conceive of
a single legitimate reason to decode products. Nor can I. The ``Anti-
Tampering Act of 2000'' I am introducing today is a narrowly tailored
approach to this problem and should be enacted.
I ask unanimous consent that the text of the bill and a section-by-
section analysis of the legislation appear in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2105
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 ``Antitampering Act of 2000''.
SEC. 2. PROHIBITION OF UNAUTHORIZED ALTERATION OF PRODUCT
IDENTIFICATION CODES.
(a) In General.--Chapter 65 of title 18, United States
Code, is amended by inserting after section 1365 the
following:
``Sec. 1365A. Tampering with product identification codes
``(a) Definitions.--In this section--
``(1) the term `consumer'--
``(A) means--
``(i) the ultimate user or purchaser of a good; or
``(ii) any hotel, restaurant, or other provider of services
that must remove or alter the container, label, or packaging
of a good in order to make the good available to the ultimate
user or purchaser; and
``(B) does not include any retailer or other distributor
who acquires a good for resale;
``(2) the term `flea market' means any location, other than
a permanent retail store, at which space is rented or
otherwise made available for the conduct of business of a
transient or limited vendor;
``(3) the term `good' means any article, product, or
commodity that is customarily produced or distributed for
sale, rental, or licensing in interstate or foreign commerce,
and any container, packaging, label, or component thereof;
``(4) the term `manufacturer' means--
``(A) the original manufacturer of a good; and
``(B) any duly appointed agent or representative of that
manufacturer acting within the scope of its agency or
representation;
``(5) the term `product identification code'--
``(A) means any visible number, letter, symbol, marking,
date (including an expiration date), or code that is affixed
to or embedded in any good, by which the manufacturer of the
good may trace the good back to a particular lot, batch, date
of production, or date of removal;
``(B) does not include--
``(i) copyright management information (as defined in
section 1202(c) of title 17) conveyed in connection with
copies or phonorecords of a copyrighted work or any
performance or display of a copyrighted work;
``(ii) other codes or markings on the good; or
``(iii) a Universal Product Code; and
``(C) does not include any trademark or copyright notice by
itself or any item listed in subparagraph (A) that is affixed
to, superimposed on, or embedded in a trademark or copyright
notice;
``(6) the term `transient or limited vendor' does not
include a person who sells by sample, catalog, or brochure
for future delivery to the purchaser;
``(7) the term `Universal Product Code' means a 12-digit,
all numeric code that identifies the consumer package
consisting of--
``(A) a 1-digit number system character;
``(B) a 5-digit manufacturer identification number;
``(C) a 5-digit item code;
``(D) a 1-digit check number; and
``(E) the bar code symbol that encodes the 12-digit
Universal Product Code; and
``(8) the term `value' means the face, par, or market
value, whichever is the greatest.
``(b) Prohibited Acts.--Except as provided in subsection
(d) or as otherwise expressly authorized under any other
provision of Federal law, it shall be unlawful for any
person, other than the consumer or the manufacturer of a
good, knowingly and without the authorization of the
manufacturer--
[[Page S818]]
``(1) to directly or indirectly alter, conceal, remove,
obliterate, deface, strip, or peel any product identification
code affixed to or embedded in a good and visible to the
consumer;
``(2) to directly or indirectly affix to or embed in a good
a product identification code that is visible to the consumer
and that is intended by the manufacturer for a different
good, such that the code no longer accurately identifies the
lot, batch, date of production, or date of removal of the
good;
``(3) to directly or indirectly affix to or embed in a good
any number, letter, symbol, marking, date, or code intended
to simulate a product identification code that is otherwise
visible to the consumer;
``(4) to import, reimport, export, sell, offer for sale,
hold for sale, distribute, or broker a good--
``(A) in a case in which the person knows that the product
identification code, which otherwise would be visible to the
consumer, has been altered, concealed, removed, obliterated,
defaced, stripped, peeled, affixed, or embedded in violation
of paragraph (1) or (2); or
``(B) in a case in which the person knows that the good
bears a number, letter, symbol, marking, date, or code in
violation of paragraph (3); or
``(5) to sell, offer for sale, or knowingly permit the sale
at a flea market of--
``(A) baby food, infant formula, or any other similar
product manufactured and packaged for sale for consumption by
a child who is less than 3 years of age; or
``(B) any food, drug, device, or cosmetic (as those terms
are defined in section 201 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321));
unless that person keeps for public inspection written
documentation identifying such person as an authorized
representative of the manufacturer or distributor of the
food, drug, device, or cosmetic.
``(c) Applicability.--The prohibitions set forth in
paragraphs (1) through (4) of subsection (b) shall apply to
visible product identification codes (or simulated product
identification codes in a case to which subsection (b)(3)
applies) affixed to, or embedded in, any good held for sale
or distribution in interstate or foreign commerce or after
shipment therein, including any good held in a United States
Customs Service bonded warehouse or foreign trade zone.
``(d) Exceptions.--
``(1) Universal product code codes.--Nothing in this
section prohibits a person from affixing a Universal Product
Code, security tag, or other legitimate pricing or inventory
code or other information required by Federal or State law,
if such code or information does not (or can be removed so as
not to) permanently alter, conceal, remove, obliterate,
deface, strip, or peel any product identification code.
``(2) Repackaging for resale.--Nothing in this section
prohibits a person from removing a good from a primary
package or container and repackaging the good in another
package or container, or from placing a good and its original
packaging within new packaging, if--
``(A) the good retains its original product identification
code, which has not been permanently altered, concealed, or
removed;
``(B) the repackaging is in full compliance with all
applicable Federal laws and regulations, including section
301 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
331); and
``(C) a new package includes a label that clearly states--
``(i) that the good has been repackaged; and
``(ii) the name of the repacker.
``(e) Criminal Penalties.--Any person who willfully
violates this section--
``(1) shall be fined under this title, imprisoned not more
than 1 year, or both;
``(2) shall be fined under this title, imprisoned not more
than 5 years, or both, if the total value of the good or
goods involved in the violation is greater than $10,000;
``(3) shall be fined under this title, imprisoned not more
than 10 years, or both, if--
``(A) the person acts with reckless disregard for the
health or safety of the public and under circumstances
manifesting extreme indifference to such risk; and
``(B) the violation threatens the health or safety of the
public;
``(4) shall be fined under this title, imprisoned not more
than 20 years, or both, if--
``(A) the person acts with reckless disregard for the risk
that another person will be placed in danger of death or
bodily injury and under circumstances manifesting extreme
indifference to such risk; and
``(B) serious bodily injury to any individual results;
``(5) shall be fined under this title, imprisoned for any
term of years or for life, or both, if--
``(A) the person acts with reckless disregard for the risk
that another person will be placed in danger of death or
bodily injury and under circumstances manifesting extreme
indifference to such risk; and
``(B) the death of an individual results; and
``(6) with respect to any second or subsequent violation of
this section, be convicted of a felony, and be subject to
twice the maximum term of imprisonment that would otherwise
be imposed under this subsection, fined under this title, or
both.
``(f) Injunctions and Impounding, Forfeiture, and
Disposition of Goods.--
``(1) Injunctions and impounding.--In any prosecution under
this section, upon motion of the United States, the court
may--
``(A) grant 1 or more temporary, preliminary, or permanent
injunctions on such terms as the court determines to be
reasonable to prevent or restrain the alleged violation; and
``(B) at any time during the proceedings, order the
impounding, on such terms as the court determines to be
reasonable, of any good that the court has reasonable cause
to believe was involved in the violation.
``(2) Forfeiture and disposition of goods.--Upon conviction
of any person of a violation of this section, the court
shall--
``(A) order the forfeiture of any good involved in the
violation or that has been impounded under paragraph (1)(B);
and
``(B) either--
``(i) order the destruction of each good forfeited under
subparagraph (A);
``(ii) order the disposal of the good by delivery to such
Federal, State, or local government agencies as, in the
opinion of the court, have a need for such good, or by gift
to such charitable or nonprofit institutions as, in the
opinion of the court, have a need for such good; or
``(iii) order the return of the goods involved upon the
request of any interested party.
``(g) Civil Remedies.--
``(1) In general.--Any person who is injured by a violation
of this section, or demonstrates the likelihood of such
injury, may bring a civil action in an appropriate district
court of the United States against the alleged violator.
``(2) Injunctions and impounding and disposition of
goods.--In any action under paragraph (1), the court may--
``(A) grant 1 or more temporary, preliminary, or permanent
injunctions upon the posting of a bond at least equal to the
value of the goods affected on such terms as the court
determines to be reasonable to prevent or restrain the
violation;
``(B) at any time while the action is pending, order the
impounding of the goods affected--
``(i) if the court has reasonable cause to believe the
goods were involved in the violation;
``(ii) upon the posting of a bond at least equal to the
value of the goods affected; and
``(iii) on other terms such as the court determines to be
reasonable; and
``(C) as part of a final judgment or decree, in the court's
discretion--
``(i) order the destruction of any good involved in the
violation or that has been impounded under subparagraph (B);
``(ii) order the disposal of the good--
``(I) by delivery to such Federal, State, or local
government agencies as, in the opinion of the court, have a
need for such good; or
``(II) by gift to such charitable or nonprofit institutions
as, in the opinion of the court, have a need for such good,
if such disposition would not otherwise be in violation of
law, and if the manufacturer consents to such disposition; or
``(iii) order the return of the goods involved in the
violation to the manufacturer upon the request of any
interested party.
``(3) Damages.--
``(A) In general.--Subject to subparagraph (B), in any
action under paragraph (1), the plaintiff shall be entitled
to recover--
``(i) the actual damages suffered by the plaintiff as a
result of the violation, and;
``(ii) any profits of the violator that are attributable to
the violation and are not taken into account in computing the
actual damages.
``(B) Statutory damages.--In any action under paragraph
(1), the plaintiff may elect, at any time before final
judgment is rendered, to recover, instead of actual damages
and profits described in subparagraph (A), an award of
statutory damages for any violation under this section in an
amount equal to--
``(i) not less than $500 and not more than $100,000, with
respect to each type of goods involved in the violation; and
``(ii) if the court finds that the violation threatens the
health and safety of the public, not less than $5,000 and not
more than $1,000,000, with respect to each type of good
involved in the violation.
``(C) Proof of damages.--In establishing the violator's
profits, the plaintiff shall be required to present proof
only of the violator's sales, and the violator shall be
required to prove all elements of cost or deduction claimed.
``(4) Costs and attorney's fees.--In any action under
paragraph (1), in addition to any damages recovered under
paragraph (3), the court in its discretion may award the
prevailing party its costs of the action and its reasonable
attorney's fees.
``(5) Repeat violations.--
``(A) Treble damages.--In any case in which a person
violates this section within 3 years after the date on which
a final judgment was entered against that person for a
previous violation of this section, the court, in an action
brought under this subsection, may increase the award of
damages for the later violation to not more than 3 times the
amount that would otherwise be awarded under paragraph (3),
as the court considers appropriate.
``(B) Burden of proof.--A plaintiff that seeks damages as
described in subparagraph (A) shall bear the burden of
proving the existence of the earlier violation.
``(6) Limitations on actions.--No civil action may be
commenced under this section later than 3 years after the
date on which
[[Page S819]]
the claimant discovers or has reason to know of the
violation.
``(7) Innocent violations.--In any action under paragraph
(1), the court in its discretion may reduce or remit the
total award of damages or award no damages in any case in
which the violator sustains the burden of proving, and the
court finds, that the violator was not aware and had no
reason to believe that the acts of the violator constituted a
violation.
``(h) Enforcement Actions.--
``(1) In general.--Subject to paragraphs (2) and (3), the
Attorney General and the Secretary of the Treasury shall
enforce the requirements of this section.
``(2) Agency discretion.--The head of a department or
agency of the Federal Government (including the Commissioner
of Food and Drugs and the Secretary of Agriculture) may
investigate any violation of this section involving a good
that is regulated by a provision of law administered by that
department or agency.
``(3) Customs service.--
``(A) In general.--The United States Customs Service
shall--
``(i) seize any good imported, reimported, or offered for
import into the United States in violation of subsection
(b)(4);
``(ii) promptly notify the manufacturer or duly appointed
agent or representative of the seizure; and
``(iii) destroy or dispose of the goods in accordance with
the procedures set forth in section 526(e) of Tariff Act of
1930 (19 U.S.C. 1526(e)).
``(B) Voluntary disclosures.--In order to assist the United
States Customs Service in carrying out its obligations under
this paragraph, any domestic or foreign manufacturer may
voluntarily record with the United States Customs Service--
``(i) its name and address;
``(ii) a description of its goods and product
identification codes; and
``(iii) such other information as may facilitate the
enforcement of this section.''.
(b) Conforming Amendment.--The table of sections for
chapter 65 of title 18, United States Code, is amended by
inserting after the item relating to section 1365 the
following:
``1365A. Tampering with product identification codes.''.
(c) Regulatory Authority.--Not later than 6 months after
the date of enactment of this Act, the Attorney General,
after consultation with the Secretary of the Treasury, the
Commissioner of Food and Drugs, and the head of any other
department or agency of the Federal Government that the
Attorney General determines to be appropriate, shall issue
such rules and regulations as may be necessary to implement
section 1365A of title 18, United States Code, as added by
this section.
SEC. 3. ATTORNEY GENERAL REPORTING REQUIREMENTS.
Section 2320(f) of title 18, United States Code, is
amended--
(1) by striking ``of title 18'' each place that term
appears;
(2) by inserting ``tampering with product identification
codes (as defined in section 1365A),'' after ``involve''; and
(3) in paragraph (4), by inserting ``1365A,'' after
``sections''.
SEC. 4. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take
effect 6 months after the date of enactment of this Act.
Supporters of the Anti-Tampering Act of 1999
manufacturers and business trade associations
3M
Abott Laboratories
American Home Products Corp.
Allied Domecq Spirits & Wine (USA)
Bose Corporation
Bristol-Myers Squibb Co.
Chanel, Inc.
Compar
Converse Inc.
Cosmair
Estee Lauder, Inc.
Ford Motor Company
Giorgio
Givenchy
Intel Corporation
International Business Machines Corp.
John Paul Mitchell Systems
Joseph E. Seagram & Sons, Inc.
Matrix Essentials
Maytag Corporation
Motorola, Inc.
NEXXUS Products Co.
Nocopi Technologies, Inc.
Novartis
Novell, Inc.
O.C. Tanner Company
Optical Security Inc.
Oreck Corporation
Pfizer Inc.
Rolex Watch U.S.A., Inc.
SICPA
Stanley Works
The Proctor & Gamble Company
Warner-Lambert Co.
American Academy of Pediatrics
American College of Nurse-Midwives
American Beauty Association
American Health and Beauty Aids Institute
American Home Appliances Association
American Watch Association
Association of Women's Health, Obstetric and Neonatal Nurses
Coalition to Preserve the Integrity of American Trademarks
Consumer Electronic Manufacturers Association
Consumer Health Care Products Association
Cosmetic, Toiletry and Fragrance Association
Distilled Spirits Council of the United States, Inc.
Grocery Manufacturers of America
International Formula Council
National Association of Beverage Importers
National Association of Manufacturers
National Association of Neonatal Nurses
National Association of Wholesaler-Distributors
National Food Processors Association
Wine and Spirits Wholesalers of America, Inc.
consumer groups and unions
National Consumers League
PACE, Paper, Allied-Industrial, Chemical & Energy Workers
International Union, AFL-CIO
Service Employees International Union, AFL-CIO
u.s. law enforcement
Construction Industry's Crime Prevention Program of Southern
California
Fraternal Order of Police
Ohio Patrolmen's Benevolent Association
____
The ``Anti-Tampering Act of 1000''--Section-by-Section Analysis
section 1. short title
The bill may be cited as the ``Anti-Tampering Act of
2000.''
section 2. unauthorized alteration of product identification codes
prohibited
Subsection (a). In general
Section 2 of the bill amends Title 18 of the United States
Code to create a new section 1365A prohibiting for all goods
the intentional removal or alteration of product
identification codes, as well as the affixing of fake codes,
as follows:
Section 1365A(a). Definitions. New section 1365A(a) of
Title 18 sets forth the definitions of the relevant terms
used in new section 1365A. By definition, the prohibitions
contained in the bill would not apply to the ultimate user or
purchaser of the good, to any hotel, restaurant or other
provider of services that alters the packaging in order to
make it available to the ultimate consumer, or any retailer
or distributor who acquires a good for resale.
Under this subsection, the definition of product
identification code includes any visible number, letter,
symbol, marking, date (including an expiration date), or code
that is affixed to or embedded in any good by which the
manufacturer may trace the good back to a particular lot,
batch, date of production or date of removal. It specifically
excludes (1) copyright management information conveyed in
connection with copies or phonorecords of a copyrighted work
or encryption information, (2) any or all other codes or
markings on the good, (3) a Universal Product Code, and (4)
trademark or copyright notices, including notices that are
affixed to, superimposed on or embedded in product
identification codes.
Section 1365A(b). Prohibited Acts. Section 1365A(b) sets
forth the activities that are prohibited. It seeks to target
and prohibit each phase of the decoding process--the act of
decoding, the affixing of fake codes, and the distribution of
the decoded or falsely coded product. The bill includes a
knowledge standard that applies throughout the decoding to
distribution process.
Specifically, this subsection prohibits the intentional
alteration or removal of any visible product identification
code. It also prohibits the intentional affixing of any fake
or simulated code upon any good, label, container, packaging,
or component thereof. The prohibition does not apply to the
original manufacturer or the final consumer. This subsection
further prohibits the importation, re-importation,
exportation, sale, offering or holding for sale,
distribution, or brokering of goods or components thereof
whose product identification codes have been altered,
concealed, removed or falsified.
In addition, this subsection prohibits selling, offering
for sale, or knowingly permitting the sale at flea markets of
certain products, including baby food, infant formula, and
other products covered by the Federal Food, Drug, and
Cosmetic Act, except by authorized representatives of the
manufacturer or distributor.
Section 1365A(c). Applicability to Goods Held in Free Trade
Zones. Section 1365A(c) extends the prohibitions against
decoding and false coding to all goods held for sale or
distribution in interstate or foreign commerce, including
goods held in Customs bonded warehouses and free trade zones.
Section 1365A(d). Exclusions. The bill excludes from
section 1365A the act of affixing genuine Universal Product
Codes, security tags or other legitimate pricing or inventory
codes that can be removed without damaging the product
identification code. It also excludes from section 1365A
certain types of repackaging activities. The bill will permit
the removal of shipping containers and the repackaging of
goods for the purpose of selling the goods in different
quantities. The exception would apply only if each retail
item retains its original product identification code, the
repackaging is in full compliance with all applicable laws
and regulations, and the new package includes a label stating
that the good has been repackaged and containing the name of
the repacker.
Section 1365A(e). Criminal penalties. Section 1365A(e)
imposes criminal penalties on
[[Page S820]]
any person who knowingly and willfully engages in decoding
violations. This subsection imposes fines pursuant to the
schedule of fines set forth in Title 18. A person violating
the Act could be imprisoned up to one year for the first
offense; up to 5 years if the value of the goods exceed
$10,000; up to 10 years if the violation threatens public
health and safety; up to 20 years if the violation results in
bodily injury; and up to life imprisonment if a death results
from the violation. If there are subsequent violations, the
bill imposes twice the term of imprisonment that would
otherwise be imposed.
Section 1365A(f). Injunctions and Impounding, Forfeiture,
and Disposition of Goods. This section authorizes the court
in its discretion, upon motion of the United States, to grant
injunctive relief to prevent or restrain the alleged
violation, and impound goods that the court has reasonable
cause to believe are involved in the violation. This section
also requires the court upon conviction to order the
forfeiture of any goods involved in the violation and either
the destruction, disposal or return of the goods involved.
Section 1365A(g). Civil Remedies. Section 1365A(g) provides
consumers and manufacturers who are injured or threatened
with injury with a civil right of action against persons who
knowingly engage in decoding activities.
Paragraph (2) further authorizes the court at its
discretion to issue injunctions, and to impound the goods in
the custody of the defendant. As part of a final judgment or
decree, the court may order the destruction, disposal or
return to the manufacturer of the goods involved in the
violation of this section. The goods may also be delivered to
a government agency or provided as gifts to charitable
institutions, if the manufacturer consents to the
disposition.
Paragraph (3) sets forth the civil damages available to
persons injured or who can demonstrate the likelihood of
injury by violations of the Act. These damages include actual
damages and profits, or, upon election by the plaintiff,
statutory damages in an amount not less than $500 and not
more than $100,000 for each type of goods involved in the
violation. Available statutory damages are increased to not
less than $5,000 and not more than $1,000,000 in cases in
which the violation threatens the health and safety of the
public. In addition, paragraph (5) allows the civil plaintiff
to seek treble damages in the event of repeat violations made
within 3 years of the original violation. Paragraph (7) also
authorizes the court to reduce or eliminate the total damages
award, or award no damages, if the violator sustains the
burden of proving, and the court finds, that the violator was
not aware and had not reason to believe the acts of the
violator constituted a violation.
Paragraph (4) provides that the court in its discretion may
award the prevailing party its costs and attorneys' fees.
Paragraph (6) imposes a three-year statute of limitations
on the filing of a civil action. The limitation begins
running from the date on which the claimant discovers or has
reason to know of the violation.
Section 1365A(h). Enforcement actions. Section 1365A(h)
requires the Attorney General and Secretary of Treasury to
enforce the requirements of this new section of Title 18. It
also authorizes the head of a department or agency of the
Federal Government (including the Secretary of Agriculture
and the Commissioner of the Food and Drug Administration) to
investigate alleged violations involving goods regulated by
their respective agencies.
This section also requires Customs Service officials to
seize decoded products, notify the manufacturer of such
seizure, and destroy or dispose of such goods. In order to
facilitate this Customs seizure, the manufacturer would be
permitted to record with the Customs Service any relevant
information concerning product identification codes.
Subsection (b). Conforming amendments
Subsection (b) makes a conforming amendment to Title 18 to
include the title of new section 1365A in the table of
sections for chapter 65 of Title 18.
Subsection (c). Regulatory authority
Subsection (c) of the bill requires the Attorney General,
after consultation with the Secretary of the Treasury, the
FDA Commissioner, and the head of any other department or
agency of the Federal Government the Attorney General
determines appropriate, to issue regulations implementing new
section 1365A of Title 18 within six months of enactment.
Section 3. Attorney General Reporting Requirements
Section 3 of the bill requires the Attorney General to
include in his or her reports to Congress on the business of
the Department of Justice all actions taken by the Department
regarding product decoding.
Section 4. Effective date
Section 4 of the bill states that the bill will become
effective six months after enactment.
Mr. LEAHY. Mr. President, I am joining forces with my good friend
Senator Hatch on a Judiciary Committee bill that would prohibit
improper tampering with product identification codes.
Manufacturers code their products in order to protect their consumers
and to assist law enforcement in investigating consumer complaints, as
well as in conducting recalls of tampered products. These codes assist
the manufacturer and law enforcement in tracing goods back to a
particular lot, batch or date of production. They include batch codes,
expiration dates, lot numbers, and other information that one can
typically see imprinted on the bottom or side of most products.
This product identification codes are extremely important in terms of
product recall. There were over 250 product recalls last year--
including two recent product recalls, one of ready-to-eat diet shakes
and the other regarding the recall of 7,000 cases of infant formula.
Also, product codes were of great help regarding the Tylenol poisonings
of 1982 and the contaminated strawberry incident in Michigan in which
school children became ill.
Forensic experts have used product identification codes in
investigating numerous crimes including the bombing of the World Trade
Center in New York City. Sometimes product codes are used to exonerate
the innocent. For example, the product codes in the batteries involved
in the Olympic Park, Atlanta, bombing helped exonerate the security
guard, Richard Jewell, under suspicion in that case.
Product codes have been fraudulently altered regarding medicines,
fertility drugs, and even bulk frozen shrimp. This makes it very
difficult to trade back these products and to determine their safety.
This bill addresses those concerns.
This bill contains significant improvements over a version introduced
in the other body some time ago. Wholesalers were worried that they
could not repackage goods--together into ``sale baskets''--to be sold
at discount prices. This bill permits the resale of products at
discounted prices. Each individual item would have to keep the original
code but the prices could be changed depending on competitive market
forces.
It is important that manufacturers not be able to control prices by
operation of this bill. Consumers interested in bargains need to be
able to get the best bargain they can get. This bill does not prevent
the reselling of overstocked, or other, goods to discount retailers.
The bill also makes clear that any innocent alterations of product
identification codes are not subject to the criminal provisions.
The bill contains a provision unrelated to product identification
codes which I want to discuss for a moment. The bill prohibits at flea
markets the sale of baby food, infant formula, or similar products made
for consumption of children under three years of age. It also prohibits
the sale of drugs, medical foods, cosmetics, and medical devices as
defined in the Federal Food, Drug and Cosmetic Act at flea markets
unless the seller keeps for public inspection written documentation
identifying the seller person as an authorized representative of the
manufacturer or distributor of the food, drug, device, or cosmetic.
This appears to be a reasonable policy but I am very interested in
the views of my colleagues on this matter as there may be other ways to
achieve the goals of these flea market provisions. I intend to work
closely with the Committee Chairman, Senator Hatch, and my other
colleagues regarding this bill.
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