[Congressional Record (Bound Edition), Volume 147 (2001), Part 12]
[Senate]
[Pages 17059-17062]
[From the U.S. 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 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

[[Page 17060]]

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 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

[[Page 17061]]

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 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.

[[Page 17062]]

  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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