[Congressional Record Volume 147, Number 120 (Friday, September 14, 2001)]
[Senate]
[Pages S9434-S9437]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LOCAL LAW ENFORCEMENT ACT OF 2001
Mr. SMITH of Oregon. Mr. President, I rise today to speak about hate
crimes legislation I introduced with Senator Kennedy in March of this
year. The Local Law Enforcement Act of 2001 would add new categories to
current hate crimes legislation sending a signal that violence of any
kind is unacceptable in our society.
I would like to describe a terrible crime that occurred December 19,
1997 in Stockton, CA. A high school student was allegedly beaten by a
group of youths who believed he was gay. Two youths, ages 16 and 17,
were charged with civil rights violations.
I believe that government's first duty is to defend its citizens, to
defend them against the harms that come out of hate. The Local Law
Enforcement Enhancement Act of 2001 is now a symbol that can become
substance. I believe that by passing this legislation, we can change
hearts and minds as well.
Mr. McCAIN. Mr. President, I want to thank the managers of this bill
for their hard work in putting forth this
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legislation which provides federal funding for numerous vital programs.
This bill provides funding for fighting crime, enhancing drug
enforcement, and responding to threats of terrorism. It further
addresses the shortcomings of the immigration process, funds the
operation of the judicial process, facilitates commerce throughout the
United States, and supports the needs of the State Department and
various other agencies.
Regrettably, this bill spends at a level 4.4 percent higher than the
level enacted in fiscal year 2001 which is greater than the 4 percent
increase in discretionary spending than the President wanted to adhere
to.
In real dollars, this is $720 million in additional spending above
the amount requested by the President, and a $1.7 billion increase in
spending from last year. So far this year, with just five
appropriations bills already passed, spending levels have already
exceeded the President's budget request by more than $6.6 billion.
A good amount of this increase is in the form of parochial spending
for unrequested projects. In this bill, I have identified approximately
600 earmarks totaling $2 billion, which is greater than the 470
earmarks, totaling $1.5 billion, in the bill passed last year.
There are hundreds of millions of dollars in pork-barrel spending and
legislative riders that are riddled throughout this bill. The multitude
of unrequested earmarks buried in this measure will undoubtedly further
burden the American taxpayers. While the amounts associated with each
individual earmark may not seem extravagant, taken together, they
represent a serious diversion of taxpayers' hard-earned dollars at the
expense of numerous programs that have undergone the appropriate merit-
based selection process.
For example, under funding for the Department of Justice, some
examples of earmarks include: $3 million to the University of
Connecticut to fund the Prison Health Research Project; $3 million for
a grant to the Clearwater, Idaho EDA for the Lewis and Clark
Bicentennial Bi-State Public Safety Project; $1 million for a grant to
the Alaska Native Justice Center Restorative Justice programs; $1.6
million for the Montana Highway Patrol for computer upgrades;
and $725,000 for the City of Jackson, Mississippi, for their public
safety automated technologies system.
Under funding for the Department of Commerce, some of the earmarks
include: $500,000 for the Central California Ozone Study; $500,000 for
the International Pacific Research Center at the University of Hawaii;
$1.25 million for the Alaska Near Shore Fisheries; $350,000 for the
South Carolina Taxonomic Center; $1.75 million for the Alaska Fisheries
Development Foundation; $500,000 for weather radio transmitters in
Wyoming; $4 million for the Institute for Politics at Harvard
University; and $6 million for the Thayer School of Engineering at
Dartmouth University for the nanocrystalline materials and biomass
research initiative.
There are many more projects on the list that I have compiled, which
will be available on my Senate Web site.
Mr. President, I must once again draw attention to the more
questionable ways in which Americans' tax dollars serve the otherwise
noble cause of U.S. diplomacy around the world as part of the State
Department appropriations portion of this bill. As usual, several
organizations and universities have received earmarked funds for
international exchanges. Five particularly parochial earmarks deserve
mention: the Joiner Fellowships in War, the Padnos International
Center, the UNI-Cedar Falls Russo-American Exchange, the UNLV Global
Business Exchange, and the UNR International Business Exchange each
receive a $100,000 earmark, to the surprise of, among others, officials
of the State Department, who not only did not request funding for these
programs, but in several cases were unaware they even existed.
Among other beneficiaries this year of unrequested spending that
seems to serve primarily the interests of its patrons, Pacific salmon
stand out: this bill appropriates $45,419,000, or nearly twice the $25
million requested by the Department of State, to implement the 1999
Pacific Salmon Treaty. Included in this figure is $20 million above the
Administration's request to capitalize the Northern and Southern
Boundary Funds and $419,000 above the Administration's request
dedicated to the State of Washington for its salmon preservation
efforts. The Committee report also takes it upon itself to absolve the
State of Alaska of further harvest reductions under the 1999 Pacific
Salmon Treaty.
Traveling dance and music troupes and Internet entrepreneurs are also
being shown the money as a result of the Committee report's generous
provision of $750,000 to their cause, on the grounds that, in the
Committee's words, ``Performances by touring U.S. dance and music
troupes have afforded our diplomats unusual access to oft-times elusive
senior policy-makers in Africa. At the same time, the lure of
technological innovation, especially the explosion of the Internet,
afford American educators and entrepreneurs a rare opportunity to
develop lasting links with African elites.'' Our relations with African
nations are important, and many countries torn by crippling poverty,
famine, disease, civil unrest, and open warfare could use our help. I
like a good dance performance as much as anyone, but I'm not positive
this funding is the best way to help our friends or advance American
interests in Africa.
For many years now I have opposed the Advanced Technology Program at
the Department of Commerce on grounds that it is ``corporate pork.''
For many years, any of the Nation's leading companies have reaped the
benefits of this grant program for research ideas that they could and
should have pursued under their corporate budgets. Proponents of the
program have cited that the program funds high-risk projects.
Several years ago, on the Senate Commerce Committee, we reviewed many
of the funded projects under the program and found that many of the
projects were not high-risk at all, but rather evolutionary or
incremental development of existing technologies.
The President has stated that the future of the program would be
subject to a Commerce Department's review. The fiscal year 2002 budget
request has essentially eliminated funding for ATP. The Appropriations
Committee has provided funding of $204 million for fiscal year 2002,
$191 million above the President's request. Furthermore, to ensure that
this funding is awarded in a timely manner, the Appropriations
Committee, in report language, has prohibited obligations of any funds
under the Department's Departmental Management account, which funds
salaries and other expenses, until a plan on how timely awards are to
be made. That is equivalent to saying make ATP awards or we will shut
down the Department.
In closing, I urge my colleagues to curb our habit of directing hard-
earned taxpayer dollars to locality-specific special interests and our
inclusion of legislative riders which thwart the very process that is
needed to ensure our laws address the concerns and interests of all
Americans, not just a few who seek special protection or advantage.
amendment no. 1538 to h.r. 2500
Mr. SMITH of New Hamphsire. Mr. President, I rise to raise an issue
regarding the meaning and effect of amendment No. 1538 to H.R. 2500. I
am proud to have joined in sponsoring this amendment with Senators
Harkin, Warner, Inhofe, Cochran, Allard, Campbell, and Johnson.
Mr. HARKIN. It is the understanding of the Senator from New Hampshire
that the proper meaning of that amendment would bar the State and
Justice Departments from filing any statement of interest or in any
manner intervening to oppose any civil action brought by a former
prisoner of war against a corporation of the type referenced in the
amendment?
Mr. SMITH of New Hampshire. Yes. This is the intent of the amendment
which passed this body by voice vote after a motion to table failed.
Mr. HARKIN. This is my understanding as well.
Mr. CRAPO. Mr. President, I rise today in support of a provision that
has been included in the Commerce, Justice, State, and Judiciary
Appropriations Subcommittee manager's amendment to H.R. 2500 that is
absolutely crucial to recovering threatened and
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endangered species, while also protecting people and the economies of
areas where these species are present.
I would like to thank the esteemed Chairman and Ranking Member of the
Subcommittee and the Ranking Member of the Appropriations Committee for
recognizing the critical nature of this issue and including it in the
manager's amendment.
The Endangered Species Act, ESA, requires Federal agencies to avoid
actions that are likely to ``jeopardize'' the continued existence of
threatened or endangered species or destroy or adversely modify
designated critical habitat. Agencies must ``consult'' with the U.S.
Fish and Wildlife Service or the National Marine Fisheries Service, who
issue a biological opinion at the conclusion of consultation to assist
the Federal agency to meet its substantive no-jeopardy obligation. The
obligation to avoid jeopardy rests upon on the Federal ``action
agency,'' not on the Services. These actions may include the
construction of a highway or bridge, a stream restoration project to
benefit listed fish species, a forest health activity such as thinning
or prescribed fire to reduce the risk of catastrophic wildfire, or the
operation of hydroelectric projects.
In the West, we have seen countless projects held up for inordinate
amounts of time. They have caused economic hardship and job loss, while
also draining the resources of the Federal Government. What is so
significant about these resources being consumed by the consultation
process is that in nearly all of these cases, projects did not
jeopardize threatened or endangered species. In nearly every case,
neither the species nor their habitats were at risk. In every case,
this was a matter of doing paperwork that is required by the regulatory
process. And, in no case, did this process do anything to increase a
species chances of survival or improve habitat for that species on-the-
ground.
In 1986, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service issued joint regulations that divided consultations
into ``informal'' and ``formal.'' Informal consultations occur for any
action that ``may affect'' a listed species. If the consulting Service
finds that adverse affect on the species is likely, then formal
consultation begins and the service will issue a formal biological
opinion.
Since 1986, the consultation process has mushroomed into a lengthy
and expensive process. Eight hundred and twenty two new species have
been listed since then, including 21 new salmon listings in the past
five years. Between 1987 and 1995 Federal agencies were required to
complete more than 186,000 consultations with the Services on proposed
programs and projects. The increasing number of critical habitat
designations will only add to this burden. Despite efforts to manage
the workload under existing rules, the Services have been unable to
quell growing criticism that they cannot do the job adequately.
Yet only three tenths of one percent of these projects, let me say
that again, only three tenths of one percent or fewer than 600, were
found to be likely to jeopardize a protected species or adversely
modify critical habitat. A full 99.7 percent of all consultations
involved projects that already complied fully with the ESA. Only one
out of every 300 consultations involved a project with a potential to
violate the ESA.
Each year Federal agencies are compelled to expend millions of
Federal dollars for elaborate consultations on projects that pose no
significant threat to species. Each of these consultations requires
extensive studies and reports by the Federal action agency and one or
both of the Services, and extends for months or years before ending
with the inevitable no-jeopardy finding that was obvious from the
start. The Services have increased their staffs every year for the past
decade in order to complete more and more of these unneeded
consultations that have no value for protected species.
These project delays further drain the Federal Treasury by increasing
the ultimate costs of the stalled projects. The delays also cause
millions of dollars more in lost economic opportunity for private
citizens dependent on a stalled project. These consultations sap
resources from those relatively few situations where a species actually
needs protection from a proposed Federal agency project or program.
This out-of-control consultation process is contrary to Congress'
intent in enacting the Endangered Species Act. The Supreme Court has
observed that consultation is among the ESA's procedural safeguards
intended ``to avoid needless economic dislocation produced by agency
officials zealously but unintelligently pursuing their environmental
objectives.'' (Bennett v. Spear, 520 U.S. 154, 176-77 (1997).)
The joint consultation rules must be modified to mitigate the
problem, reduce the workload and continue the same level of protection
for the listed species. The regulations have caused large numbers of
unneeded and burdensome consultations. None of these is required by the
ESA and none of them is necessary in today's heightened sensitivity of
endangered species responsibility to protect listed species.
It is impossible to make the argument that streamlining the
consultation regulations will negatively affect species. In fact, a
more efficient and effective process will help imperiled species by
reducing unnecessary paperwork, and thus, reducing the resources needed
to do the paperwork, and by redirecting this precious resources to
making real, on-the-ground improvements for imperiled species.
My provision, which has been included in the bill, would direct the
Services to review this situation and revise their joint regulations
accordingly. The review would consider the significant increase in
number, cost, and duration of consultations since promulgation of the
regulations in 1986 and would result in modifications to the
regulations that will streamline the consultation process to ensure
that: one, all forms of consultation are completed within the deadlines
provided in section 7 of the ESA; two, the requirements for initiating
consultation and for any information generated and documentation
prepared by both the action agency and the consulting agency during
consultation are fully consistent with section 7; and three, the
consultation process is conducted in an efficient and useful manner to
meet the purpose of section 7.
Section 7(b) of the ESA imposes a 90-day deadline, subject to certain
extensions to which each agency must agree. If there is a permit
applicant involved, consultation may not exceed 150 days without the
applicant's consent. The 1986 regulations make no effort to follow
these deadlines during the informal consultation stage, thus allowing
this process to drag on and on.
A primary cause of the explosion in unneeded consultations is the
extremely low threshold in the regulations for an action agency to
initiate a consultation. The regulations require an action agency to
initiate consultation for any proposed action that ``may affect''
either a listed species or critical habitat. In announcing the
regulations, the Fish and Wildlife Service explained that they may
affect threshold means that ``any possible effect, whether beneficial,
benign, adverse, or of an undetermined character, triggers the formal
consultation requirement.''
The regulations do not permit an action agency to decide that it does
not need to consult on a ``may affect'' action, no matter how harmless
the activity may be. A ``may affect'' action can be exempted from
formal consultation only if a Service concurs in writing that the
action is ``not likely to adversely affect'' a listed species or
critical habitat. That finding itself requires a multi-step inter-
agency administrative process called informal consultation, which often
takes longer than the formal consultation it is intended to avoid.
The ESA does not contain the ``may affect'' consultation threshold.
As a matter of fact, the Endangered Species Act does not contain any
consultation threshold at all. The ``may affect'' threshold in the
regulations is so far removed from the substantive no-jeopardy
requirement in the ESA that large volumes of unnecessary consultations
were virtually guaranteed to occur--and have.
Other sections of the regulations also compel large numbers of
unnecessary consultations: consultation is required on any action
authorized, funded, or carried out ``in part'' by a federal agency,
even if the Federal involvement is minor or secondary to private or
state
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action; consultation is required for agency actions that are intended
to benefit species; consultation is required for agency regulations
with no direct on-the-ground impact; and consultation is required for
agency actions that ``indirectly'' cause modification to the land,
water, or air.
The regulations also impose burdensome documentation requirements,
far beyond the ESA, that guarantee that even the most minor
consultation will be long and slow. The action agency is required to
initiate every formal consultation with a detailed written report on
the manner in which the action may affect any listed species or
critical habitat and an analysis of any cumulative effects, and must
also provide the best scientific and commercial information available
or which can be obtained during the consultation for an adequate review
of the effects that an action may have upon listed species or critical
habitat. Moreover, while the ESA only requires ``biological
assessments'' to be prepared for ``major construction activities,'' the
joint regulations make this detailed analysis a virtual requirement for
every agency action.
The joint regulations then mandate that a biological opinion include
a detailed discussion of the effects of the action on listed species or
critical habitat that addresses all of the indirect, interrelated,
interconnected and cumulative effects as defined in the regulations. In
contrast, the ESA only requires that a biological opinion set forth a
summary of the information on which the opinion is based, detailing how
the agency action affects the species or its critical habitat.
The Services have the authority under existing law to amend their
regulations to improve the operation of the process. The agencies can
initiate a rulemaking process to amend their regulations, with notice
and opportunity for the public to comment, following the same
procedures as were employed for the original 1986 regulations. No
amendment of the ESA is required. The amendment I am offering merely
directs the Services to use a portion of their fiscal year 2002 funds
to review the consultation regulations and propose changes that will
bring this process into line with the realities of the 21st Century and
will enable all federal agencies to fulfill their obligations under the
ESA.
The Endangered Species Act is besieged with problems that must be
solved in order to adequately protected listed species and recover
them. At the same time, many Western communities feel that they have
been assaulted by the ESA in the last two decades. Win-win solutions
often evade us as policymakers when it comes to issues that are as
contentious as the Endangered Species, but this is truly a win-win for
species AND people. Again, my sincere thanks to the chairman and
Ranking Member of the Commerce Appropriations Subcommittee for their
assistance in finding solutions to this troubling issue.
Mr. BREAUX. Mr. President, last year this Committee and Congress
passed legislation to privatize INMARSAT [International Maritime
Satellite Organization]. As part of the privatization, INMARSAT is
required to hold an initial public offering [IPO]. INMARSAT's IPO
deadline is set for December 31 of this year. Since the IPO market
continues to be in bad shape, INMARSAT and its investment advisors
would like time to see if the market improves.
INMARSAT was established in 1979 to improve maritime communications
especially for distress and safety signals. Over the past two decades,
INMARSAT has branched out to serve both maritime markets and
increasingly any markets requiring mobility--shipping, oil and gas
exploration and the FAA.
Since the IPO market has nosed-dived, INMARSAT has been waiting for
conditions to improve. All of the extensions available to INMARSAT have
now been used and the FCC has no more discretion to extend the
deadline.
The dilemma is that if INMARSAT does not hold the IPO it will be in
violation of U.S. law, and if it does hold the IPO, they could be found
in breach of its fiduciary responsibility to its shareholders, possibly
subjecting itself to shareholder lawsuits.
My amendment would simply give the FCC the ability to extend the
deadline an additional 18 months to see if the IPO market improves. A
large number of U.S. companies have pulled their IPOs off the market
given market conditions. We are trying to privatize INMARSAT and we
should allow them to act like a company.
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