[Pages S8913-S8972]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mr. Hatch, Mr. Schumer, Mr. Specter,
Mrs. Clinton, Mr. McCain, and Mr. Feingold):
S. 1348. A bill to designate the Federal building located at 10th
Street and Constitution Avenue, NW, in Washington, District of
Columbia, as the ``Robert F. Kennedy Department of Justice Building'';
to the Committee on Environment and Public Works.
Mr. LEAHY. Mr. President, I am pleased to introduce, with Senators
Hatch, Schumer, Specter, Clinton, and McCain, a bipartisan bill to name
the Department of Justice building in honor of the late Robert F.
Kennedy. I am also pleased to join the bipartisan efforts of
Congressmen Roemer and Scarborough, who are introducing companion
legislation in the House of Representatives today.
Robert F. Kennedy was a man of great courage and conviction. Of his
many accomplishments during his life, the one we honor today is his
tenure as Attorney General of the United States. Appointed by his
brother, President John F. Kennedy, on January 21, 1961, he served his
country admirably in the office of Attorney General until September 3,
1964.
During his tenure as Attorney General, Robert Kennedy led the fight
against injustice and championed civil rights for all Americans. He
ordered United States Marshals to protect the Freedom Riders in
Montgomery, Alabama. He sent Federal troops to open
[[Page S8914]]
the doors for James Meredith to walk with dignity as the first African-
American to attend the University of Mississippi. He pushed Congress to
enact the Civil Rights Act of 1964 to guarantee basic freedoms for all
our citizens, regardless of race, religion or creed.
Robert F. Kennedy's commitment to justice for all echoed in his fond
saying: ``Some men see things as they are and ask why; I dream of
things that never were and ask why not.''
Attorney General Kennedy also was a determined prosecutor. His
investigated organized crime throughout America and became the first
attorney general to establish coordinated federal law programs for the
prosecution of organized crime. From 1960 to 1963, Department of
Justice convictions against organized crime rose 800 percent because of
his efforts and dedication to bring organized crime figures to justice.
As Attorney General, Bobby Kennedy represented President Kennedy in
foreign affairs and closely advised the President in times of trouble.
Attorney General Kennedy's wise counsel during the Cuban Missile Crisis
in October of 1962, as well as secret negotiations with the Soviet
Embassy, helped bring a peaceable end to the crisis.
The memory of Robert F. Kennedy lives on in the work of others who
care as much for justice as he did. As Attorney General, Robert Kennedy
wrote these words: ``What happens to the country, to the world, depends
on what we do with what others have left us.'' It is in that spirit
that we honor him today.
I am proud to led this bipartisan effort to name the Department of
Justice Building after Robert F. Kennedy with the greatest respect,
admiration and appreciation for his service to his country.
______
By Mr. ENSIGN (for himself and Mr. Brownback):
S. 1349. A bill to provide for a National Stem Cell Donor Bank
regarding qualifying human stem cells, and for the conduct and support
of research using such cells; to the Committee on Health, Education,
Labor, and Pensions.
Mr. SANTORUM. Mr. President, I rise to join my colleague John Ensign
of Nevada in proud support of The Responsible Stem Cell Research Act of
2001, legislation aimed at committing our Nation to a bold investment
in promising, ethical medical research with which we all can live.
As my colleagues well know, the issue of stem cell research has been
the subject of rigorous debate in Congress, within the medical,
bioethical, legal, and patient advocacy communities, and on the pages
and airwaves of the local and national media.
Over the past several months in particular the American public has
been witness and subject to a maddening barrage of charges and
countercharges about how our public conscience may or may not
countenance the deliberate destruction of a human embryo for the
purpose of research.
If one thing is clear on this controversial issue, it is that the
country is divided about this wrenching dilemma, about whether or not
the Federal Government ought to lend support--and thus communal moral
sanction--to the speculative potential of stem cell research which
involves the destruction of human embryos. This is a profound policy
question which is fraught with considerable ethical, moral and legal
questions. It requires that our body politic make the monumental
determination that will forever brand our public conscience as to
whether a human embryo is a life, or conversely, a property which can
be destroyed and exploited for the advancement of science and research.
I fervently believe that fertilization produces a new member of the
human species, that it is a categorical imperative that human life be
treated as an end and not a means. To use a human being, even a newly
conceived one, as a commodity is never morally acceptable. Each person
must be treated as an end in himself, not as a means to improve someone
else's life.
Indeed, current Federal law explicitly prohibits Federal funding of
experiments that destroy embryos outside the womb precisely because
individual human life begins at fertilization.
But while President Bush continues to review the stem cell guidelines
issued under the previous administration to determine whether or not
they violate current Federal law barring the use of Federal funds in
research that leads to the destruction of embryos, and it is my hope
that President bush will uphold current Federal law and reject any
semantical nuances or euphemisms with regard to what embryonic stem
cell research is all about, the field of promising research behind
which all Americans can unite, which is ethical and beyond controversy,
is that which involves embryonic-type post-natal stem cells.
Unfortunately, the opportunities for developing successful therapies
from stem cells that do not require the destruction of human embryos
have been given relative short shrift by the media. But adult and other
post-natal stem cells have been successfully extracted from umbilical
cord blood, placentas, fat, cadaver brains, bone marrow, and tissues of
the spleen, pancreas, and other organs. They can be located in numerous
cell and tissue types and can be transformed into virtually all cell
and tissue types. And perhaps most important of all, these alternative
cell therapies are already treating cartilage defects in children,
systemic lupus, and helping restore vision to patients who were legally
blind, just to name a few. By contrast, embryonic stem cell research
has no equivalent record of success even in animal studies. Embryonic
cells have never ameliorated one human malady.
In order to move forward with and build upon the successes of this
promising research, the Responsible Stem Cell Research Act would
authorize $275 million for this ethical stem cell research which is
actually proven to help hundreds of thousands of patients, with new
clinical uses expanding almost weekly. This represents a 50 percent
increase in current NIH funding being devoted to this stem cell
research.
This legislation would also establish a National Stem Cell Donor Bank
for umbilical cord blood and human placenta to generate a source of
versatile, embryonic-type stem cells that could be matched with people
who need stem cells for treatment. These stem cells would be available
for biomedical research and clinical purposes.
No matter where one stands on the divisive issue of embryonic stem
cell research, this issue and many others dealing with the rapid
advancements in biotechnology are coming to define the very important
choices which confront us as a society and the courses we must choose
as policymakers. With stem cell research moving forward so rapidly, we
have a duty to be well educated to be able to make informed decisions
about these issues. For this reason, and because of biotechnology's
prospects for affecting positive change in other areas of our lives
such as in our agriculture community, I have recently joined as a
member of the bipartisan Senate Biotechnology Caucus. Co-chaired by our
colleagues Tim Hutchinson of Arkansas and Chris Dodd of Connecticut,
the Biotechnology Caucus regularly hosts educational forums for members
of the Senate and their staff about a broad scope of biotech issues,
from the increasing availability of genetically-engineered products to
research, trade, and bioethics. The group also acts as a resource for
information about biotechnology and encourage committee hearings on the
topic.
The possibility that biotechnology may help improve the health
humankind holds great promise and must be examined closely. But there
is no reason for our Nation to lie fallow with respect to the federal
government's support for type of stem cell research which is life-
friendly and beyond controversy. It is my hope that our colleagues here
in the Senate and in the House will pause from the rancor that has
surrounded the stem cell research debate and come to support the
Responsible Stem Cell Research Act, an aggressive initiative to fund
and develop promising medical research with which we all can live.
______
By Mr. DAYTON:
S. 1350. A bill to amend the title XVIII of the Social Security Act
to provide payment to medicare ambulance suppliers of the full costs of
providing such services, and for other purposes; to the Committee on
Finance.
Mr. DAYTON. Mr. President, today I rise to introduce the Medicare
Access
[[Page S8915]]
to Ambulance Service Act of 2001. Reliable ambulance service is often a
matter of life and death. This bill is designed to head off growing
problems that are putting ambulance providers in Minnesota and across
the country in financial jeopardy and affecting their ability to
deliver emergency services to patients.
The Medicare Access to Ambulance Service Act of 2001 will help
ambulance providers whose service quality is threatened by inadequate
Medicare payments and the inappropriate payment denials by Medicare
claims processors. The continuing difficulties jeopardize the quality
of care, and ultimately may increase the time it takes to respond to
emergencies.
Recently my staff in Minnesota met with ambulance providers and
Medicare beneficiaries in Hibbing, Duluth, Moorhead, St. Cloud,
Bemidji, Marshall, and Harmony, Minnesota to listen to their concerns
over Medicare ambulance service. In every part of the State the stories
were the same. The biggest concern was Medicare's denial of ambulance
claims. Medicare has denied claims for such medical emergencies as
cardiac arrest, heart attack, and stroke. One elderly woman from
Duluth, Minnesota was so upset with the Medicare process and the year
it took to get her claim paid, that when she needed an ambulance again
she called a taxi. This is unacceptable.
To make matters worse, when Congress enacted the Balanced Budget Act
of 1997 it required that ambulance payments be moved to a fee schedule
on a cost-neutral basis. Moving to a fee-schedule makes sense, but not
on a cost-neutral basis for a system that is already underfunded. The
proposed fee-schedule is especially unfair to rural areas and will mean
the end of small ambulance providers in Minnesota and throughout the
country.
My bill includes four components to address these problems. First,
the bill requires that the Medicare fee schedule be based on the
national average cost of providing the service. Second, the bill
requires the General Accounting Office to determine a reasonable
definition for how to identify rural ambulance providers and higher
payments for rural ambulance services. Third, the bill includes a
``prudent layperson'' standard for the payment of emergency ambulance
claims. Simply stated, this provision means that if a reasonable person
believed an emergency medical problem existed when the ambulance was
requested then Medicare would pay the claim. Minnesota already leads
the nation with this successfully implemented standard for all other
patients, with the exception of those covered by Medicare. And finally,
the bill requires Medicare to adopt a ``condition coding'' to be used
by the ambulance provider.
Medicare beneficiaries deserve more from the health insurance system
than additional anxiety in an emergency situation for a system into
which they have paid. When people in Minnesota and across the country
have an emergency requiring an ambulance, they want to know that they
will quickly and reliably get the care they need. However, current
Medicare policies and procedures are putting quality ambulance service
at risk and are forcing many ambulance providers to struggle to stay in
business, especially in rural communities. My legislation addresses
problems that threaten quality ambulance service for patients in
Minnesota and across the country.
______
By Mr. THURMOND (for himself, Mr. Biden, and Mr. Hatch):
S. 1351. A bill to provide administrative subpoena authority to
apprehended fugitives; to the Committee on the Judiciary.
Mr. THURMOND. Mr. President, I rise today to introduce legislation
that would help Federal law enforcement track down and apprehend
dangerous fugitives who are roaming the streets of America.
I am pleased to have as original cosponsors Senator Biden and Senator
Hatch. Both of them are distinguished members of this Body with
extensive knowledge in crime issues, and I greatly appreciate their
support on this important legislation.
Fugitives from justice pose a serious threat to public safety. These
criminals are evading the criminal justice system with impunity, and
many of them are committing more crimes while they are free. We should
help law enforcement bring them to justice and prevent future crime.
It has been estimated that fifty percent of the crime in America is
committed by five percent of the offenders. It is these serious, repeat
criminals, many of whom are fugitives, that law enforcement must
address today.
There are over 550,000 felony or other serious Federal and State
fugitives listed in the National Crime Information Center database. The
number has more than doubled since 1987, and is growing every year.
This bill would respond to the growing fugitive threat by providing
the Justice Department administrative subpoena authority for fugitives.
Federal officers already have this crime-fighting tool in other areas,
and this legislation would fill a serious gap that currently exists for
fugitive investigations. Information such as telephone or apartment
records may provide the missing link to track down a fugitive. Also, it
can be critical to track down leads very quickly because fugitives are
often transient and the trail can quickly become cold.
The grand jury is routinely available to obtain information about the
whereabouts of those who are suspected of committing crimes.
Surprisingly, the same cannot be said for those who were caught but got
away. The grand jury is generally not an option to get information
about known fugitives who are evading justice.
It is true that a Federal prosecutor can seek the approval of a judge
for a administrative subpoena under the All Writs Act. However, it is a
long, time-consuming process to get overworked federal judges with
crowded dockets to act on these requests, especially if they are not
rare. In any event, it may be too late by the time the court responds.
Administrative subpoenas can prevent costly delays.
Last year, we worked hard to give law enforcement tools to address
the serious fugitive threat, holding hearings and moving important
legislation. The Congress authorized $40 million over three years to
create task forces led by the Marshals Service to apprehend dangerous
fugitives. As part of this effort, the Senate passed administrative
subpoena authority twice by unanimous consent last year. However, this
authority was not included in the final legislation because it stalled
in the House last year. I hope that, as we explain the need for this
authority and how it is really a very narrow expansion beyond current
law, we will receive widespread support in both Houses of Congress.
Administrative subpoenas are not new to federal law enforcement. They
have existed for years to help authorities solve various crimes,
including drug offenses, child pornography, and even health care fraud.
However, this bill places greater restrictions on the use of the
subpoenas than currently exist in these other areas. These subpoenas
could be used only to obtain documents and records, not testimony.
None of us want a subpoena issued unless it is needed and fully
complies with the law. This bill contains procedures for people to
challenge the subpoena that they receive and have a judge review
whether it should be issued. Judicial review is required in any case
where the person requests it.
The subpoena authority has no impact on the Fourth Amendment and its
general prohibition on searches and seizures without a court-approved
warrant. Courts have routinely upheld administrative subpoenas as
entirely consistent with the Fourth Amendment. Administrative subpoenas
do not allow law enforcement to enter a home or business to conduct any
search. They only allow the government to receive documentary
information that they can show will help them find felons who are on
the run.
In summary, this legislation would help authorities get the
information they need to find dangerous fugitives before it is too
late. I am pleased that this proposal has the endorsement of law
enforcement organizations, including the Fraternal Order of Police, the
National Association of Police Organizations, and the Federal Law
Enforcement Officers Association.
I encourage my colleagues to stand up for law enforcement and support
this important legislation. 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:
[[Page S8916]]
S. 1351
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 ``Fugitive Apprehension Act of
2001''.
SEC. 2. ADMINISTRATIVE SUBPOENAS TO APPREHEND FUGITIVES.
(a) In General.--Chapter 49 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1075. Administrative subpoenas to apprehend fugitives
``(a) Definitions.--In this section:
``(1) Fugitive.--The term `fugitive' means a person who--
``(A) having been accused by complaint, information, or
indictment under Federal law or having been convicted of
committing a felony under Federal law, flees or attempts to
flee from or evades or attempts to evade the jurisdiction of
the court with jurisdiction over the felony;
``(B) having been accused by complaint, information, or
indictment under State law or having been convicted of
committing a felony under State law, flees or attempts to
flee from, or evades or attempts to evade, the jurisdiction
of the court with jurisdiction over the felony;
``(C) escapes from lawful Federal or State custody after
having been accused by complaint, information, or indictment
or having been convicted of committing a felony under Federal
or State law; or
``(D) is in violation of subparagraph (2) or (3) of the
first undesignated paragraph of section 1073.
``(2) Investigation.--The term `investigation' means, with
respect to a State fugitive described in subparagraph (B) or
(C) of paragraph (1), an investigation in which there is
reason to believe that the fugitive fled from or evaded, or
attempted to flee from or evade, the jurisdiction of the
court, or escaped from custody, in or affecting, or using any
facility of, interstate or foreign commerce, or as to whom an
appropriate law enforcement officer or official of a State or
political subdivision has requested the Attorney General to
assist in the investigation, and the Attorney General finds
that the particular circumstances of the request give rise to
a Federal interest sufficient for the exercise of Federal
jurisdiction pursuant to section 1075.
``(b) Subpoenas and Witnesses.--
``(1) Subpoenas.--In any investigation with respect to the
apprehension of a fugitive, the Attorney General may subpoena
witnesses for the purpose of the production of any records
(including books, papers, documents, electronic data, and
other tangible and intangible items that constitute or
contain evidence) that the Attorney General finds, based on
articulable facts, are relevant to discerning the whereabouts
of the fugitive. A subpoena under this subsection shall
describe the records or items required to be produced and
prescribe a return date within a reasonable period of time
within which the records or items can be assembled and made
available.
``(2) Witnesses.--The attendance of witnesses and the
production of records may be required from any place in any
State or other place subject to the jurisdiction of the
United States at any designated place where the witness was
served with a subpoena, except that a witness shall not be
required to appear more than 500 miles distant from the place
where the witness was served. Witnesses summoned under this
section shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States.
``(c) Service.--
``(1) Agent.--A subpoena issued under this section may be
served by any person designated in the subpoena as the agent
of service.
``(2) Natural person.--Service upon a natural person may be
made by personal delivery of the subpoena to that person or
by certified mail with return receipt requested.
``(3) Corporation.--Service may be made upon a domestic or
foreign corporation or upon a partnership or other
unincorporated association that is subject to suit under a
common name, by delivering the subpoena to an officer, to a
managing or general agent, or to any other agent authorized
by appointment or by law to receive service of process.
``(4) Affidavit.--The affidavit of the person serving the
subpoena entered on a true copy thereof by the person serving
it shall be proof of service.
``(d) Contumacy or Refusal.--
``(1) In general.--In the case of the contumacy by or
refusal to obey a subpoena issued to any person, the Attorney
General may invoke the aid of any court of the United States
within the jurisdiction of which the investigation is carried
on or of which the subpoenaed person is an inhabitant, or in
which he carries on business or may be found, to compel
compliance with the subpoena. The court may issue an order
requiring the subpoenaed person to appear before the Attorney
General to produce records if so ordered.
``(2) Contempt.--Any failure to obey the order of the court
may be punishable by the court as contempt thereof.
``(3) Process.--All process in any case to enforce an order
under this subsection may be served in any judicial district
in which the person may be found.
``(4) Rights of subpoena recipient.--Not later than 20 days
after the date of service of an administrative subpoena under
this section upon any person, or at any time before the
return date specified in the subpoena, whichever period is
shorter, such person may file, in the district within which
such person resides, is found, or transacts business, a
petition to modify or quash such subpoena on grounds that--
``(A) the terms of the subpoena are unreasonable or
oppressive;
``(B) the subpoena fails to meet the requirements of this
section; or
``(C) the subpoena violates the constitutional rights or
any other legal rights or privilege of the subpoenaed party.
``(e) Guidelines.--
``(1) In general.--The Attorney General shall issue
guidelines governing the issuance of administrative subpoenas
pursuant to this section.
``(2) Review.--The guidelines required by this subsection
shall mandate that administrative subpoenas may be issued
only after review and approval of senior supervisory
personnel within the respective investigative agency or
component of the Department of Justice and of the United
States Attorney for the judicial district in which the
administrative subpoena shall be served.
``(f) Nondisclosure Requirements.--
``(1) In general.--Except as otherwise provided by law, the
Attorney General may apply to a court for an order requiring
the party to whom an administrative subpoena is directed to
refrain from notifying any other party of the existence of
the subpoena or court order for such period as the court
deems appropriate.
``(2) Order.--The court shall enter such order if it
determines that there is reason to believe that notification
of the existence of the administrative subpoena will result
in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses; or
``(E) otherwise seriously jeopardizing an investigation or
undue delay of a trial.
``(g) Immunity From Civil Liability.--Any person, including
officers, agents, and employees, who in good faith produce
the records or items requested in a subpoena shall not be
liable in any court of any State or the United States to any
customer or other person for such production or for
nondisclosure of that production to the customer, in
compliance with the terms of a court order for
nondisclosure.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 49 of title 18, United States Code, is amended by
adding at the end the following:
``1075. Administrative subpoenas to apprehend fugitives.''.
Mr. BIDEN. Mr. President, I am pleased today to be able to join with
Senators Thurmond and Hatch in introducing the Fugitive Apprehension
Act of 2001. This bill authorizes the Attorney General to issue
administrative subpoenas in cases involving fugitives. Its passage will
provide law enforcement with the tools it needs to more effectively
track and apprehend fugitives from justice, and I look forward to its
prompt consideration.
Crime across the country continues to trend downwards, though we have
seen some mixed statistical signals of late. As chairman of the newly-
created Judiciary Subcommittee on Crime and Drugs, I am extremely
concerned by the Nation's fugitive problem. According to estimates from
the Department of Justice, there are approximately 54,000 fugitives
from justice in Federal cases. A total of 565,611 fugitives, including
state and local felony cases, have been entered into the database of
the National Crime Information Center, up from 340,000 10 years ago.
But this figure only begins to measure the problem, as the National
Crime Information Center receives just 20 percent of all outstanding
State and local felony warrants.
These fugitives from justice are a very real and dangerous concern.
For example, last December, there was a shooting in Wilmington, DE. The
shooter was charged with attempted murder and weapons violations and
was jailed in Chester, PA, on a separate, earlier shooting charge. He
then posted $500 bail on those charges, and promptly fled the
jurisdiction. Members of Delaware's Violent Fugitive Task Force soon
determined this violent criminal was hiding out in West Los Angeles.
They alerted local FBI agents, who soon located the fugitive in a car
and tried to stop him. He led the agents on a two-mile, high-speed
chase, crashed into a pole, then tried to escape on foot. He was
eventually captured, arrested, and he was recently returned to Delaware
to face charges. This fugitive is particularly dangerous: he has a long
record of drug and other offenses, including 52 arrests in Delaware
dating all the way back to when he was 13.
[[Page S8917]]
Unfortunately, this incident from my home State is not an isolated
one, and we should not hamstring law enforcement when they try to catch
these criminals. To better equip our Federal law enforcement agents
with the resources they need to track and apprehend dangerous fugitives
from justice, we need to make some changes to our criminal laws. The
Fugitive Apprehension Act of 2001 gives the Attorney General,
principally through the United States Marshals Service, authority to
issue administrative subpoenas in cases involving fugitives. Last year,
the Director of the Marshals Service testified as to the need for these
subpoenas in fugitive cases; he noted that seldom is a grand jury
available to issue a subpoena in these instances. In fugitive cases,
time is often of the essence and successful investigations depend on
real-time information, such as telephone subscriber and credit records.
The time required to get a court order can make the difference between
whether a fugitive is apprehended or remains at large.
Given the privacy concerns that rightfully arise whenever Fourth
Amendment protections are impacted, I want to take a moment to describe
some of the safeguards in the bill we introduce today. First, and
importantly, the bill's provisions apply only to those fugitives
charged with or convicted of violent felonies or trafficking in drugs.
Second, the bill in no way authorizes searches by law enforcement
agencies; the subpoenas envisioned by the bill may be used only to
obtain documents. Witness testimony and searches still must meet the
Constitution's warrant requirement.
Third, each administrative subpoena issued must be approved by the
local United States Attorney for the district in which the subpoena
will be served. I realize the Marshals Service and other law
enforcement groups would rather this safeguard not be in the bill, but
I insisted upon its inclusion at this point so as to ensure this new
investigative power is not abused. I look forward to continuing my
discussions with the Marshals Service and others concerning the effect
this safeguard could have on their fugitive apprehensions.
Fourth, the bill allows the person on whom an administrative subpoena
is served to request to a court that it be overturned--judicial review
is mandated each time an administrative subpoena is challenged.
I am mindful of the fact that Federal law enforcement already has
administrative subpoena power in other types of cases, including drug
enforcement, child abuse and child pornography investigations. The need
for administrative subpoena authority should be more clear in fugitive
cases; there, the criminal being pursued has already proven his danger
to society by committing a very serious crime. The bill we are
introducing today is quite limited in scope, and its built in
safeguards coupled with the opportunity for judicial review I believe
balance well the rights of individuals with the clear need to catch
those violent criminals on the lam, criminals whose very presence on
our streets threatens us all. I thank Senator Thurmond for his
leadership in this area, and I look forward to working with him and
Senator Hatch to see this bill signed into law.
______
By Mr. SANTORUM:
S. 1352. A bill to amend the National and Community Service Act of
1990 to carry out the Americorps program as a voucher program that
assists charities serving low-income individuals, and for other
purposes; to the Committee on Health, Education, Labor, and Pensions.
Mr. SANTORUM. Mr. President, today I am introducing a bill which
reforms and expands service opportunities through the AmeriCorps
program by transitioning the service program toward an individual model
with voucher-like awards to individuals desiring to serve low-income
individuals or communities. The goal is to decrease dependency on
large, more permanent group service locations and dramatically increase
the scope of service opportunities and charitable locations which would
be eligible for voucher recipients to serve communities and to require
that site locations be predominantly serving low-income communities or
people.
Under the leadership of former Senator Harris Wofford and the States,
significant steps were taken to improve the management of the
AmeriCorps program of the Corporation for National Service, CNS, and I
recognize the dedication and contributions of AmeriCorps participants.
I also believe that more can be done to expand the effectiveness of the
AmeriCorps by expanding the opportunities for service and have been
looking at a number of options for more than a year.
The bill's approach to reform should better enable participants to
get to know the communities that they are serving. It is also a goal of
this initiative to place an additional emphasis on the importance of
leveraging volunteers and providing technical assistance and capacity
building skills for these organizations. This will increase the long-
term benefit which the organizations and the communities that they
serve receive. The new proposal has some similarities to
AmeriCorpsVISTA under the CNS but the scope of the proposed
authorization is limited to AmeriCorps, although I believe that other
restructuring may well be warranted.
The reform proposal includes the following elements: The individual
award or voucher would be for use at charitable organizations
predominantly serving the poor (like the current AmeriCorpsVISTA
focus). All eligible qualifying charities (consistent with IRS
requirements for 501(c)(3)'s) predominantly serving the poor would be
eligible locations for service. All receiving locations must comply
with the current supervisory and reporting requirements (e.g., web-
based reporting system) of the Corporation for National Service. The
voucher is awarded to the individual who chooses a qualified location
for service and not the charitable organization. The current education
and stipend benefits of AmeriCorps would remain the same and be
included with the new voucher. The education award may be given to
another individual chosen by the AmeriCorps volunteer without impacting
the ability of the donee to receive other sources of grant and
scholarship assistance, increasing the attractiveness for older
Americans to participate. If the number of applicants exceeds the
available vouchers, a lottery system established by the Corporation for
National Service would be used to determine the selection of qualified
voucher recipients. The bill provides for consolidation of Americans
and AmeriCorpsVISTA state offices to better leverage resources. A one-
year transition period to the new system is provided.
I urge my colleagues to consider this opportunity to reform
AmeriCorps participants. I believe that refocusing the program on
poverty alleviation efforts, expanded choice, and placing a greater
emphasis on serving charities and the needy communities they serve
through provision of expanded technical assistance and capacity
building services will provide a brighter future for AmeriCorps and a
more strategic contribution from this federally supported program for
Americans in need.
______
By Mr. DURBIN (for himself, Mr. Kennedy, Mr. Reed, and Mr.
Schumer):
S. 1355. A bill to prevent children from having access to firearms;
to the Committee on the Judiciary.
Mr. DURBIN. Mr. President, I rise today with my colleagues Senator
Kennedy, Levin, Reed, and Schumer to introduce the Children's Firearm
Access Prevention Act of 2001.
My legislation is modeled after similar legislation that Texas
enacted into law under then Governor George W. Bush in 1995. It is my
sincere hope that President Bush will work with Congress to enact this
important bill.
While many in Congress have argued that the Second Amendment
guarantees individuals the right to bear arms, there has been far less
discussion about the corresponding responsibilities of gun owners to
keep their firearms away from children.
The Children's Firearm Access Prevention, CAP, Act of 2001 subjects
gun owners to a prison sentence of up to 1 year and a fine of up to
$4,000 when they fail to use a secure gun storage or safety device for
their firearms and a juvenile under the age of 18 uses that firearm to
cause serious bodily injury to themselves or others. The CAP bill also
subjects gun owners to a fine of up
[[Page S8918]]
to $500 when they fail to use a secure gun storage or safety device for
their firearm and a juvenile obtains access to the firearm.
My legislation includes commonsense exceptions. Gun owners would not
be subject to criminal or civil liability when a juvenile uses a
firearm in an act of lawful self-defense; takes the firearm off the
person of a law enforcement official; obtains the firearm as a result
of an unlawful entry; or obtains the firearm during a time when the
juvenile was engaged in agricultural enterprise. Gun owners would also
not be liable if they had no reasonable expectation that juveniles
would be on the premises, or if the juvenile was supervised by a person
older than 18 years of age and was engaging in hunting, sporting, or
other lawful purposes.
CAP laws have reduced unintentional shootings in states that have
enacted these laws. In Florida, the first State to pass a CAP law,
unintentional shooting deaths dropped by more than 50 percent in the
first year following enactment. 17 states, including my home state of
Illinois, have enacted CAP laws.
A study published in the Journal of the American Medical Association,
JAMA, in October of 1997 found a 23 percent decrease in unintentional
firearm related deaths among children younger than 15 in those States
that had implemented CAP laws. According to the JAMA article, if all 50
States had CAP laws during the period of 1990-1994, 216 children might
have lived.
While I understand that some Americans feel safer with a gun in the
home, the sad reality is that a gun in the home is far more likely to
be used to kill a family member or a friend than to be used in self-
defense. Over 90 percent of handguns involved in unintentional
shootings are obtained in the home where these shootings occur. Many
unintentional shootings could be prevented if firearms were safely
stored.
Children and easy access to guns are a recipe for tragedy. I ask my
Senate colleagues to join me in this effort to protect children from
the dangers of gun violence.
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. 1355
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 ``Children's Firearm Access
Prevention Act''.
SEC. 2. CHILDREN AND FIREARMS SAFETY.
(a) Definition.--Section 921(a)(34)(A) of title 18, United
States Code, is amended by inserting ``or removing'' after
``deactivating''.
(b) Prohibition.--Section 922 of title 18, United States
Code, is amended by inserting after subsection (y) the
following:
``(z) Prohibition Against Giving Juveniles Access to
Certain Firearms.--
``(1) Definitions.--In this subsection:
``(A) Juvenile.--The term `juvenile' means an individual
who has not attained the age of 18 years.
``(B) Criminal negligence.--The term `criminal negligence'
pertains to conduct that involves a gross deviation from the
standard of care that a reasonable person would exercise
under the circumstances, but which is not reckless.
``(2) Prohibition.--Except as provided in paragraph (3), it
shall be unlawful for any person to keep a loaded firearm, or
an unloaded firearm and ammunition for a firearm, any of
which has been shipped or transported in interstate or
foreign commerce or otherwise substantially affects
interstate or foreign commerce, within any premises that is
under the custody or control of that person if that person
knows or, with criminal negligence, should know that a
juvenile is capable of gaining access to the firearm without
the permission of the parent or legal guardian of the
juvenile, and fails to take steps to prevent such access.
``(3) Exceptions.--Paragraph (2) does not apply if--
``(A) the person uses a secure gun storage or safety device
for the firearm;
``(B) the person is a peace officer, a member of the Armed
Forces, or a member of the National Guard, and the juvenile
obtains the firearm during, or incidental to, the performance
of the official duties of the person in that capacity;
``(C) the juvenile obtains, or obtains and discharges, the
firearm in a lawful act of self-defense or defense of one or
more other persons;
``(D) the person has no reasonable expectation, based on
objective facts and circumstances, that a juvenile is likely
to be present on the premises on which the firearm is kept;
``(E) the juvenile obtains the firearm as a result of an
unlawful entry by any person;
``(F) the juvenile was supervised by a person older than 18
years of age and was engaging in hunting, sporting, or
another lawful purpose; or
``(G) the juvenile gained the gun during a time that the
juvenile was engaged in an agricultural enterprise.''.
(c) Penalties.--Section 924(a) of title 18, United States
Code, is amended by adding at the end the following:
``(7)(A) Whoever violates section 922(z), if a juvenile (as
defined in section 922(z)) obtains access to the firearm that
is the subject of the violation and thereby causes death or
serious bodily injury to the juvenile or to any other person,
shall be fined not more than $4,000, imprisoned not more than
1 year, or both.
``(B) Whoever violates section 922(z), if a juvenile (as
defined in section 922(z)) obtains access to the firearm that
is the subject of the violation shall be fined not more than
$500.''.
(d) Role of Licensed Firearms Dealers.--Section 926 of
title 18, United States Code, is amended by adding at the end
the following:
``(d) Contents of Form.--The Secretary shall ensure that a
copy of section 922(z) appears on the form required to be
obtained by a licensed dealer from a prospective transferee
of a firearm;
``(e) Notice of Children's Firearm Access Prevention Act.--
A licensed dealer shall post a prominent notice in the place
of business of the licensed dealer as follows:
``IT IS UNLAWFUL AND A VIOLATION OF THE CHILDREN'S FIREARM
ACCESS PREVENTION ACT TO STORE, TRANSPORT, OR ABANDON AN
UNINSURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE
AND CAN OBTAIN ACCESS TO THE FIREARM.''.
(e) No Effect on State Law.--Nothing in this section or the
amendments made by this section shall be construed to preempt
any provision of the law of any State, the purpose of which
is to prevent juveniles from injuring themselves or others
with firearms.
______
By Mr. FEINGOLD (for himself, Mr. Grassley, and Mr. Kennedy):
S. 1356. A bill to establish a commission to review the facts and
circumstances surrounding injustices suffered by European Americans,
European Latin Americans, and European refugees during World War II; to
the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, I rise today to introduce the Wartime
Treatment of European Americans and Refugees Study Act. This bill would
create a Commission to review the United States Government's treatment
during World War II of German Americans, Italian Americans, certain
Latin Americans, and refugees of Nazi Germany.
I am very pleased that my distinguished colleagues, Senators Grassley
and Kennedy, have joined me as cosponsors of this important bill. I
particularly want to thank them for their input and valuable
contributions to this bill.
The allied victory in the Second World War was an American triumph,
and most of all, a triumph for human freedom. Today we rightly
celebrate the contributions of what Tom Brokaw has called the Greatest
Generation, the courage displayed by so many Americans in that terrible
struggle should be a source of pride for every American.
Those Americans fought, and often gave their lives, to restore
freedom and democracy abroad. But, as brave Americans fought enemies in
Europe and the Pacific, here at home the U.S. government was curtailing
the freedom of its own people. Of course, every nation has the duty to
protect its homefront in wartime. But, even in war, we must respect the
basic freedoms for which so many Americans have given their lives,
including untold numbers of German and Italian Americans.
Many Americans are by now aware that during World War II, under the
authority of Executive Order 9066, our government forced more than
100,000 ethnic Japanese from their homes and into camps. This
evacuation policy forced Japanese Americans to endure great hardship.
Approximately 15,000 additional ethnic Japanese were selectively
interned in government operated internment camps. They often lost their
basic freedoms, their livelihood, and perhaps worst of all, suffered
the shame and humiliation of being locked behind barbed wire and
military guard, by their own government. Under the Civil Liberties Act
of 1988, this shameful episode in American history received the
official condemnation it deserved. Under the Act, people of Japanese
ancestry who suffered either relocation or selective internment
received an apology and reparations, on behalf of the people of the
United States.
[[Page S8919]]
But, while the treatment of Japanese Americans has finally received
the attention it deserves by the public, most Americans have never even
heard about the approximately 11,000 ethnic Germans living in America,
the 3,200 ethnic Italians living in America, or the scores of ethnic
Bulgarians, Hungarians, Rumanians or other European Americans who were
taken from their homes and placed into internment camps during World
War II. Hundreds remained interned for up to three years after the war
was over.
Today I introduce legislation to convene an independent commission to
examine this tragic history, try to understand why it happened, and to
try to ensure that it never happens again. We must learn the lessons of
history, however painful they might be for us, and for the families
that endured this shameful treatment. In a time of American heroism
abroad, here at home we faltered. We failed to protect the liberty of
all Americans. Through our restrictive immigration policies, we also
failed to offer safe harbor to European refugees fleeing Nazi genocide.
We turned away thousands of refugees fleeing Germany, delivering many
of them to their deaths.
As a Nation we have been slow to address our conduct during the war.
There has finally been some measure of justice for Japanese Americans
who suffered in the United States, however little or however late. And
Congress has finally begun to address the treatment of Italian
Americans. Last year, the President signed into law The Wartime
Violation of Italian American Civil Liberties Act, which called for a
report from the Department of Justice detailing injustices suffered by
Italian-Americans during World War II. I believe that this is a step in
the right direction, but an independent panel should be convened to
conduct a full and thorough review.
I think many Americans would be surprised to learn that, to this day,
more than 50 years later, there has been no recognition of the ordeal
of thousands of German Americans during and after the Second World War.
There has been no justice for ethnic Germans living in America who were
branded ``enemy aliens'' by their own government. The U.S. government
limited their travel, imposed curfews and seized their personal
property. Thousands were interned in camps, often separated from other
members of their family, living in miserable conditions. Many of these
families, including American children, were later shipped back to war-
torn Europe in exchange for Americans held there, and suffered
terribly. It is past time for the U.S. Government to recognize the pain
and anguish these actions caused.
And there has been no justice for European Latin Americans, including
German and Austrian Jews, who were actually repatriated or deported to
hostile, war-torn European Axis powers, often as part of an exchange
for Americans being held in those countries. The U.S. government
uprooted these people from their homes and forced them into camps in
the United States, essentially kidnaping them from nations not even
directly involved in the War. Again, many were then shipped for
exchange to Europe.
And finally, there has been no justice for Europeans, often Jews, who
sought refuge from the Nazis on our shores. We must examine the U.S.
immigration policies of the 1930s and 1940s that turned these people
away, and often delivered them into the hands of the Third Reich.
This legislation proposes an independent commission to look at U.S.
policies during World War II, including the policies regarding German
and Italian Americans, European Latin Americans, and the refugee
immigration policies of the World War II era.
In the 1940s, Germans and Italians were the two largest foreign-born
populations in the United States. Under the policy put in place by the
U.S. government, thousands of aliens were simply arrested by the FBI.
Far more often than not, these arrests were based on highly
questionable evidence. Those arrested were held indefinitely pending a
hearing. Many times their families did not know where they had been
taken for weeks, and if both parents were taken, children were often
left to fend for themselves until family members or local governments
took custody of them.
They received a brief hearing before local hearing boards during
which the local U.S. Attorney acted as prosecutor. The hearing boards
then recommended to the Department of Justice whether they should be
released, paroled, or interned for the duration of the War. Despite the
serious nature of this proceeding, those arrested did not have the
right to have their own lawyer and did not have the right to confront
witnesses against them. The hearing boards would then send their
recommendations to the Department of Justice, where a final
determination could take months. Internment orders were issued for the
duration of the war. Ironically, many were interned on Ellis Island,
where immigrants had been welcomed for decades.
Families, often left destitute, struggled to survive and often lost
their homes. Finally, the government would permit families to join
their loved ones in a family camp, where they would live indefinitely
behind barbed wire. These spouses and children were frequently American
citizens.
In addition to internment, all enemy aliens during World War II were
subject to strict regulations affecting their daily lives. Enemy aliens
were required to carry photo-bearing identification booklets at all
times, were forbidden to travel beyond a five mile radius of their
homes, were required to turn in any short wave radios and cameras they
owned. They were required to given the government a full-week's notice
if they planned to spend a night away from home, and could not ride in
airplanes. Thousands of enemy aliens were prohibited from entering
military zones, some even evacuated from their homes. Many aliens and
European American citizens were also subject to restrictions in or
excluded from military areas that collectively covered one-third of the
country.
As I've said, there has been some recognition of the wrongs done to
Italian Americans during the war, but there has yet to be any formal
recognition of the pain that German American families went through. So
I want to take a few moments to give examples to help my colleagues and
the public understand the kind of harassment they endured.
The FBI searched tens of thousands of alien residences between 1943
and 1945. The stories of homes ransacked, or people being taken from
their families for years, are chilling. Take the case of Guenther
Greis. Mr. Greis, as U.S. citizen, was 17 years old when World War II
began in 1941. On December 7, 1941 Guenther's father, a German citizen
who had lived in the U.S. for at least 15 years, and worked in the
chemical industry, was arrested.
Weeks passed before Guenther, his mother, and his family of four
boys, three born in the United States, finally learned where their
missing father had been taken. He was to be interned for the duration
of the war. In the meantime, Guenther's family had struggled to keep
their home. Even as their father was being detained by the government,
two sons enlisted in the merchant Marines and served in the Pacific War
Zone on behalf of the United States. The remaining family eventually
was sent to the internment camp in Crystal City, TX, until Guenther and
his brother were released in 1946. Guenther's parents remained interned
until 1947, two years after the end of the war. To this day, the Greis
family does not have explanation of why their father was interned.
Or take the story of Anton Schroeger, a German citizen who came to
America at the age of 16, and by the time World War II began, had lived
half his life in America. When World War II broke out, Anton was lucky
to have a relatively high paying job as a skilled painter at the
Milwaukee Road repair shops. Based on what Anton believed to be a false
tip from somebody who wanted his job, however, Anton was arrested while
at work, and taken to a series of interment camps. After his arrest,
his wife, Anna, insisted on joining him in the internment camps, and,
in fact, gave birth to a daughter in a camp in Texas. After World War
II, Anton earned a living working at lower paying jobs. Despite this
ordeal, Anton eventually became a U.S. citizen in 1952. His family is
certain that Anton did not engage in any activity that deserved such
treatment.
Let me say here that there may have been people affected by these
policies
[[Page S8920]]
who harbored sympathy for our adversaries, and was potentially
dangerous. And every government must take steps to protect its
homefront in a time of war. But even the people who may have posed a
threat to our security should have had the basic protections enshrined
in our Constitution. War tests all of our principles and values,
without question. But it is during these times of conflict, and fear,
that we need to protect those principles the most.
At least 11,000 German-Americans were placed in internment camps
during WWII. Thousands more were denied basic freedoms that most of us
today take for granted. These Germans and German-Americans deserve a
full fact-finding review and acknowledgement from the U.S. government,
and they deserve to have their story told so that we may strive to
ensure that the individual rights of all Americans will remain free
from arbitrary persecution.
The work of the commission created by this bill would include a
review of The Alien Enemy Act of 1798, which permitted this treatment
under U.S. law and remains on the books today. So, the first act of the
Commission would involve a full and thorough review of the federal
government's treatment of European Americans and European Latin
Americans.
The second part of the Commission's work would be to study America's
treatment of refugees from Nazi Germany. After Hitler took power in
1933, the freedoms of German Jews were eroded until many of them sought
desperately to flee the country. First came an economic boycott, the
loss of civil rights, citizenship, and jobs.
Then, in November 1938, came the Kristallnacht pogrom, and
ultimately, incarceration and systematic murder in concentration camps.
Unfortunately, as restrictions began to tighten and many Jews sought
refuge outside of Nazi Germany, America, instead of acting as a haven
for these refugees, was tightening its immigration rules. Between 1933
and 1939, 300,000 Germans, mostly Jews fleeing Nazi persecution,
applied for visas to America. Yet only about 90,000 applicants were
ever admitted into our nation.
The requirements just to be considered for a visa were formidable. An
applicant had to submit an application, a birth certificate, a
certificate of good conduct from the German police, affidavits of good
conduct, submit to a physical exam, proof of permission to leave a
country of origin, proof of booked passage to the U.S., two sponsors in
America, and on and on. These requirements made immigrating to the U.S.
very difficult. Then, in 1941, a new regulation forbidding the granting
of a visa to anyone who had relatives in an Axis-occupied territory
essentially made seeking refuge in America impossible for many Jews.
Thanks to research conducted by the United States Holocaust Museum
and other American scholars, we now have a fuller understanding of the
ramifications of U.S. immigration policies. To put the tragic results
of those policies into perspective, I'll recount the fate of the
passengers aboard a ship called the St. Louis. The St Louis sailed from
Hamburg in April 1939 with 937 passengers aboard. Over 900 of those
passengers were Jews, attempting to flee Germany. America denied entry
to the refugees on the ship, and it eventually sailed back to Antwerp
in June 1939. From there, the refugees frantically searched for new
countries to offer them protection. Some of them succeeded, while many
did not, and were later detained and killed at Auschwitz.
Some attempts were made to allow the most vulnerable of these
refugees, children, into the United States. On February 9, 1939 the
Wagner-Rogers refugee bill was introduced in this very Senate. The bill
would have allowed admission to the United States of 20,000 German
refugee children under the age of 14 over a period of two years, in
addition to the immigration normally permitted. But sadly, that bill
was not even considered by the full Senate.
The United States' failure to offer refuge to Jews attempting to flee
the Nazis is one of the most shameful periods in our history. We closed
our borders to people fleeing persecution, and at the same time, within
those borders, we treated too many people of ``enemy ethnicity'' as
threats to a national security. The purpose of this proposed
commission, is to understand and acknowledge the United States' actions
during this period. As a Nation, we have repeatedly called on other
countries to acknowledge their wartime offenses against civilians.
Today we have to ask of ourselves what we ask of other nations--why did
we do it, and how can we prevent it from happening again?
During the Second World War, we defeated terrible enemies abroad, but
we also lost something of ourselves as we denied freedoms to people at
home. For many, the nation they called home would never be the same to
them after their loyalty was questioned, and their lives were ripped
apart. Too many German and Italian Americans were harassed and
humiliated by the country where they lived, struggled, raised children,
ran businesses, and built their dreams for a better life. This was the
country they chose, like millions before them, and like each and every
one of us. I hope by establishing a commission we can better understand
how we allowed such a gross injustice, and how we can guard against
implementing similar policies in the future.
No American can justify using ethnicity as a basis for the terrible
treatment these people endured. And there's no way we can justify the
policy which allowed European Latin Americans to be torn from their
homes, brought here to the U.S. under deplorable conditions to be
interned, and sometimes deported back to hostile European nations.
Finally, there's surely no way we can justify our World War II era
immigration policy, which undoubtedly led to the deaths of thousands of
people--people who turned to the U.S., in fear and desperation, for a
safe harbor, and were tragically turned away.
We cannot learn from this troubling history unless we first seek to
acknowledge it and understand it. Coming to terms with these events
will be difficult, but for the families who suffered under these
wartime policies, it will be, at long last, a recognition of the ordeal
they went through at the hands of their own government. I urge my
colleagues to support this legislation, so that we can learn from this
painful past, and ensure that we will never again let our worst fears
drive us to neglect our most cherished freedoms. Thank you, Mr.
President.
I ask unanimous consent that the full text of the Wartime Treatment
of European Americans and Refugees Study Act be printed in the Record.
There being no objection, the bill as ordered to be printed in the
Record, as follows:
S. 1356
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 ``Wartime Treatment of
European Americans and Refugees Study Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The United States has long encouraged other nations to
acknowledge their wartime offenses against civilians. Now,
the United States Government should fully assess its
treatment of European Americans and European Latin Americans
during World War II and its effect on Italian American,
German American, and other European American communities.
(2) The United States Government should also fully assess
its treatment of European refugees who fled persecution and
genocide in Europe to seek refuge in the United States prior
to and during World War II.
(3) During World War II, the United States Government
branded as ``enemy aliens'' more than 600,000 Italian-born
and 300,000 German-born United States resident aliens and
their families and required them to carry Certificates of
Identification, limited their travel, and seized their
personal property. At that time, these groups were the two
largest foreign-born groups in the United States.
(4) During World War II, the United States Government
arrested, interned or otherwise detained thousands of
European Americans, some remaining in custody for years after
cessation of World War II hostilities, and repatriated,
exchanged, or deported European Americans, including
American-born children, to hostile, war-torn European Axis
nations, many to be exchanged for Americans held in those
nations.
(5) Pursuant to a policy coordinated by the United States
with Latin American countries, many European Latin Americans,
including German and Austrian Jews, were captured, shipped to
the United States and interned. Many were later expatriated,
repatriated or deported to hostile, war-torn European Axis
nations during World War II, most to be exchanged for
Americans and Latin Americans held in those nations.
[[Page S8921]]
(6) Millions of European Americans served in the armed
forces and thousands sacrificed their lives in defense of the
United States.
(7) The wartime policies of the United States Government
were devastating to the Italian Americans and German American
communities, individuals and their families. The detrimental
effects are still being experienced.
(8) Prior to and during World War II, the United States
restricted the entry of European refugees who were fleeing
persecution and sought safety in the United States. During
the 1930's and 1940's, the quota system, immigration
regulations, visa requirements, and the time required to
process visa applications affected the number of European
refugees, particularly those from Germany and Austria, who
could gain admittance to the United States.
(9) Time is of the essence for the establishment of a
Commission, because of the increasing danger of destruction
and loss of relevant documents, the advanced age of potential
witnesses and, most importantly, the advanced age of those
affected by the United States Government's policies. Many who
suffered have already passed away and will never know of this
effort.
SEC. 3. DEFINITIONS.
In this Act:
(1) During world war ii.--The term ``during World War II''
refers to the period between September 1, 1939, through
December 31, 1948.
(2) European americans.--
(A) In general.--The term ``European Americans'' refers to
United States citizens and permanent resident aliens of
European ancestry, including Italian Americans, German
Americans, Hungarian Americans, Romanian Americans, and
Bulgarian Americans.
(B) Italian americans.--The term ``Italian Americans''
refers to United States citizens and permanent resident
aliens of Italian ancestry.
(C) German americans.--The term ``German Americans'' refers
to United States citizens and permanent resident aliens of
German ancestry.
(3) European refugees.--The term ``European refugees''
refers to European nationals who desired to flee persecution
and genocide in Europe and to enter the United States during
the period between January 1, 1933 and December 31, 1945 but
were denied entry.
(4) European latin americans.--The term ``European Latin
Americans'' refers to persons of European ancestry, including
Italian or German ancestry, residing in a Latin American
nation during World War II.
SEC. 4. ESTABLISHMENT OF COMMISSION.
(a) In General.--There is established the Commission on
Wartime Treatment of European Americans and Refugees
(referred to in this Act as the ``Commission'').
(b) Membership.--The Commission shall be composed of 11
members, who shall be appointed not later than 90 days after
the date of enactment of this Act as follows:
(1) Five members shall be appointed by the President.
(2) Three members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Three members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(c) Terms.--The term of office for members shall be for the
life of the Commission. A vacancy in the Commission shall not
affect its powers, and shall be filled in the same manner in
which the original appointment was made.
(d) Representation.--The Commission shall include 2 members
from the Italian American community and 2 members from the
German American community representing their wartime
treatment interests. The Commission shall also include 2
members representing the interests of European refugees.
(e) Meetings.--The President shall call the first meeting
of the Commission not later than 120 days after the date of
enactment of this Act.
(f) Quorum.--Six members of the Commission shall constitute
a quorum, but a lesser number may hold hearings.
(g) Chairman.--The Commission shall elect a Chairman and
Vice Chairman from among its members. The term of office of
each shall be for the life of the Commission.
(h) Compensation.--
(1) In general.--Members of the Commission shall serve
without pay.
(2) Reimbursement of expenses.--All members of the
Commission shall be reimbursed for reasonable travel and
subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
SEC. 5. DUTIES OF THE COMMISSION.
(a) In General.--It shall be the duty of the Commission to
review--
(1) the United States Government's wartime treatment of
European Americans and European Latin Americans as provided
in subsection (b)(1); and
(2) the United States Government's refusal to allow
European refugees fleeing persecution in Europe entry to the
United States as provided in subsection (b)(2).
(b) Scope of Review.--
(1) European americans and european latin americans.--The
Commission's review shall include, but not be limited to, the
following:
(A) A comprehensive review of the facts and circumstances
surrounding United States Government actions during World War
II which violated the civil liberties of European Americans
and European Latin Americans pursuant to the Alien Enemy Act
(50 U.S.C. 21-24), Presidential Proclamations 2526, 2527,
2655, 2662, Executive Orders 9066 and 9095, and any directive
of the United States Armed Forces pursuant to such law,
proclamations, or executive orders respecting the
registration, arrest, exclusion, internment, exchange, or
deportment of European Americans and European Latin
Americans. This review shall include an assessment of the
underlying rationale of the United States Government's
decision to develop related programs and policies, the
information the United States Government received or acquired
suggesting the related programs and policies were necessary,
the perceived benefit of enacting such programs and policies,
and the immediate and long-term impact of such programs and
policies on European Americans and European Latin Americans
and their communities.
(B) A review of United States Government action with
respect to European Americans pursuant to the Alien Enemy Act
(50 U.S.C. 21-24) and Executive Order 9066 during World War
II, including registration requirements, travel and property
restrictions, establishment of restricted areas, raids,
arrests, internment, exclusion, policies relating to the
families and property that excludees and internees were
forced to abandon, internee employment by American companies
(including a list of such companies and the terms and type of
employment), exchange, repatriation, and deportment, and the
immediate and long-term effect of such actions, particularly
internment, on the lives of those affected. This review shall
include a list of all temporary detention and long-term
internment facilities.
(C) A brief review of the participation by European
Americans in the United States Armed Forces including the
participation of European Americans whose families were
excluded, interned, repatriated, or excluded.
(D) A recommendation of appropriate remedies, including how
civil liberties can be better protected during war, or an
actual, attempted, or threatened invasion or inclusion, an
assessment of the continued viability of the Alien Enemy Act
(50 U.S.C. 21-24), and public education programs related to
the United States Government's wartime treatment of European
Americans, European Latin Americans, and European refugees
during World War II.
(2) European refugees.--The Commission's review shall cover
the period between January 1, 1933, through December 31,
1945, and shall include, to the greatest extent practicable,
the following:
(A) A review of the United States Government's refusal to
allow European refugees entry to the United States, including
a review of the underlying rationale of the United States
Government's decision to refuse the European refugees entry,
the information the United States Government received or
acquired suggesting such refusal was necessary, the perceived
benefit of such refusal, and the impact of such refusal on
European refugees.
(B) A review of Federal refugee policy relating to those
fleeing persecution or genocide, including recommendations
for making it easier for future victims of persecution or
genocide to obtain refuge in the United States.
(c) Field Hearings.--The Commission shall hold public
hearings in such cities of the United States as it deems
appropriate.
(d) Report.--The Commission shall submit a written report
of its findings and recommendations to Congress not later
than 18 months after the date of the first meeting called
pursuant to section 4(e).
SEC. 6. POWERS OF THE COMMISSION.
(a) In General.--The Commission or, on the authorization of
the Commission, any subcommittee or member thereof, may, for
the purpose of carrying out the provisions of this Act, hold
such hearings and sit and act at such times and places, and
request the attendance and testimony of such witnesses and
the production of such books, records, correspondence,
memorandum, papers, and documents as the Commission or such
subcommittee or member may deem advisable. The Commission may
request the Attorney General to invoke the aid of an
appropriate United States district court to require, by
subpoena or otherwise, such attendance, testimony, or
production.
(b) Government Information and Cooperation.--The Commission
may acquire directly from the head of any department, agency,
independent instrumentality, or other authority of the
executive branch of the Government, available information
that the Commission considers useful in the discharge of its
duties. All departments, agencies, and independent
instrumentalities, or other authorities of the executive
branch of the Government shall cooperate with the Commission
and furnish all information requested by the Commission to
the extent permitted by law, including information collected
as a result of Public Law 96-317 and Public Law 106-451. For
purposes of the Privacy Act (5 U.S.C. 552a(b)(9)), the
Commission shall be deemed to be a committee of jurisdiction.
SEC. 7. ADMINISTRATIVE PROVISIONS.
The Commission is authorized to--
(1) appoint and fix the compensation of such personnel as
may be necessary, without regard to the provisions of title
5, United
[[Page S8922]]
States Code, governing appointments in the competitive
service, and without regard to the provisions of chapter 51
and subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, except that
the compensation of any employee of the Commission may not
exceed a rate equivalent to the rate payable under GS-15 of
the General Schedule under section 5332 of such title;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(3) obtain the detail of any Federal Government employee,
and such detail shall be without reimbursement or
interruption or loss of civil service status or privilege;
(4) enter into agreements with the Administrator of General
Services for procurement of necessary financial and
administrative services, for which payment shall be made by
reimbursement from funds of the Commission in such amounts as
may be agreed upon by the Chairman of the Commission and the
Administrator;
(5) procure supplies, services, and property by contract in
accordance with applicable laws and regulations and to the
extent or in such amounts as are provided in appropriation
Acts; and
(6) enter into contracts with Federal or State agencies,
private firms, institutions, and agencies for the conduct of
research or surveys, the preparation of reports, and other
activities necessary to the discharge of the duties of the
Commission, to the extent or in such amounts as are provided
in appropriation Acts.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
From funds currently authorized to the Department of
Justice, there are authorized to be appropriated not to
exceed $850,000 to carry out the purposes of this Act.
SEC. 9. SUNSET.
The Commission shall terminate 60 days after it submits its
report to Congress.
Mr. KENNEDY. Mr. President, I am honored to join Senator Feingold and
my other colleagues in the Senate in introducing the Wartime Treatment
of European Americans and Refugees Study Act. This legislation will
authorize the study of U.S. policies and practices during World War II
that resulted in severe civil liberties violations against European
Americans and European Latin Americans. The bill also authorizes an
investigation into U.S. refugee policy during World War II that caused
many persons seeking safe haven to be turned away from our shores.
This bill will examine these issues by establishing a commission to
investigate U.S. policies and programs during that period. Other
countries are re-examining their own policies, and so must the United
States. Identifying the abuses of the past is one of the best ways to
ensure that they never happen again. I urge the Senate to adopt this
important legislation.
______
By Mr. WELLSTONE (for himself and Mr. Feingold):
S. 1357. A bill to provide for an examination of how schools are
implementing the policy guidance of the Department of Education's
Office for Civil Rights relating to sexual harassment directed against
gay, lesbian, bisexual, and transgender students; to the Committee on
the Judiciary.
Mr. WELLSTONE. Mr. President, today I am introducing a modest bill
that can help us take an important step toward providing all of
America's students physically and psychologically safe school
environments so they can live up to their full potential as students. I
appreciate that Senator Feingold is joining me as an original co-
sponsor.
Unfortunately, there is increasing evidence that schools are anything
but safe havens for American students who are gay and lesbian, or for
those who are perceived to be gay or lesbian. Two studies in recent
months have focused on the issue of school harassment of gay and
lesbian students. A 7-State study of abuses of gay and lesbian students
by their peers, conducted by Human Rights Watch, found that these
students often were not protected by school officials, and that in some
cases harassment was even condoned by teachers and administrators. That
report's troubling summation was that, ``Gay youth spend an inordinate
amount of energy plotting how to get safely to and from school, how to
avoid the hallways when other students are present so they can avoid
slurs and shoves, how to cut gym class to escape being beaten up, in
short, how to become invisible so they will not be verbally and
physically attacked. Too often, students have little energy left to
learn.'' A second, more general report on school bullying, conducted by
the American Association of University Women, AAUW, found that 61
percent of students had seen fellow students bullied for being gay or
lesbian, whether or not the students actually were gay or lesbian. Boys
were the most likely target of such teasing, according to the report.
Further, the recent Surgeon General's Call to Action to Promote
Sexual Health and Responsible Behavior notes that ``anti-homosexual
attitudes are associated with psychological distress for homosexual
persons and may have a negative impact on mental health, including a
greater incidence of depression and suicide, lower self-acceptance and
a greater likelihood of hiding sexual orientation.'' That report finds
that: ``Averaged over two dozen studies, 80 percent of gay men and
lesbians have experienced verbal or physical harassment on the basis of
their orientation, 45 percent had been threatened with violence, and 17
percent had experienced a physical attack.''
These studies and numerous journalistic reports describe the verbal,
physical and psychological abuse that becomes part of two many gay,
lesbian, bisexual and transgendered students' daily lives.
We should seek to provide equal learning experiences for gay and
lesbian students. We should also be concerned about the widespread
bullying of students with sexual orientation-based epithets in view of
the growing evidence that students who are bullied are more likely to
harm their fellow students.
The Department of Education's ``Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties,'' issued in 1997 by the Assistant Secretary for Civil Rights,
includes in one section the following statement: ``sexual harassment
directed at gay or lesbian students that is sufficiently serious to
limit or deny a student's ability to participate in or benefit from the
school's program constitutes sexual harassment prohibited by Title
IX.'' This guidance was revised in 2001, clarifying that school
officials have a responsibility to respond to ``acts of verbal,
nonverbal, or physical aggression, intimidation, or hostility based on
sex or sex-stereotyping.''
In spite of the Department's existing guidance, evidence is clear
that harassment of gay students remains a serious problem. Even so, the
AAUW study cited earlier points out that many schools and universities
have not established grievance procedures or designate any
representative to address complaints of sex discrimination, including
harassment.
To better understand the true level of sexual harassment against gay
and lesbian students by peers and school officials in schools, as well
as the degree to which schools are employing the Office of Civil
Rights, OCR, standard in reacting against such cases of harassment,
this bill calls for a study by the Commission on Civil Rights. The
study would seek to answer five questions:
What is the best estimate of the true level of harassment against gay
and lesbian students in America's schools and universities, applying
the OCR standard?
What is the best estimate of the level of gender-based harassment
such as that described in the 2001 update of the policy guidance that
negatively affects the learning environment of gay and lesbian
students?
To what degree are school officials and teachers aware of the
alteration of the guidelines in 1997 that now includes certain
harassment of gay and lesbian students?
Are the 1997 guidelines being accurately and aggressively enforced by
schools?
What are the Commission's recommendations for an alternation in
policy or enforcement based on the findings of the study?
The bill calls for completion of the study within 18 months so that
Congress can act thoughtfully in working to create safe learning
environments for all our students, gay and straight alike. It is
endorsed by a number of the groups focused on promoting learning
environments that are safe ones for gay students. I hope my colleagues
will support it also.
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:
[[Page S8923]]
S. 1357
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS AND PURPOSE.
(a) Findings.--Congress makes the following findings:
(1) Although title IX of the Education Amendments of 1972
(20 U.S.C. 1681 et seq.) does not prohibit discrimination on
the basis of sexual orientation, one section of the
Department of Education's Office for Civil Rights' 1997 final
policy guidance, entitled ``Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties'' published in the Federal Register on March
13, 1997, 62 Fed. Reg. 12034, included a determination that
``sexual harassment directed at gay or lesbian students that
is sufficiently serious to limit or deny a student's ability
to participate in or benefit from the school's program
constitutes sexual harassment prohibited by title IX under
the circumstances described in this guidance.''. This
language was unchanged in a 2001 update of the policy
guidance entitled ``Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties'' for which a notice of availability was
published in the Federal Register on January 19, 2001, 66
Fed. Reg. 5512.
(2) That section of the 2001 ``Revised Sexual Harassment
Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties'' went on to state: ``Though
beyond the scope of this guidance, gender-based harassment,
which may include acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based on sex or sex-
stereotyping, but not involving conduct of a sexual nature,
is also a form of sex discrimination to which a school must
respond, if it rises to the level that denies or limits a
student's ability to participate in or benefit from the
educational program. . . . A school must respond to such
harassment in accordance with the standards and procedures
described in this guidance.''.
(3) There is evidence that brings into question the degree
to which the policy guidance on sexual harassment against
gay, lesbian, bisexual, and transgender students is being
implemented. For example, a 7-State study by Human Rights
Watch of the abuses suffered by gay, lesbian, bisexual, and
transgender students at the hands of their peers, published
in ``Hatred in the Hallways: Violence and Discrimination
Against Lesbian, Gay, Bisexual, and Transgender Students in
U.S. Schools'' found that such students were often the
victims of abuses.
(4) A 2000 study by the American Association of University
Women focused on implementation of title IX of the Education
Amendments of 1972 more generally, and the findings of that
study, published in ``A License for Bias: Sex Discrimination,
Schools, and Title IX'', included a finding that many schools
and universities have not established procedures for handling
title IX-based grievances.
(5) The 2001 report of the Surgeon General, entitled
``Surgeon General's Call to Action to Promote Sexual Health
and Responsible Sexual Behavior'' notes that ``antihomosexual
attitudes are associated with psychological distress for
homosexual persons and may have a negative impact on mental
health, including a greater incidence of depression and
suicide, lower self-acceptance and a greater likelihood of
hiding sexual orientation.''. It goes on to report:
``Averaged over two dozen studies, 80 percent of gay men and
lesbians had experienced verbal or physical harassment on the
basis of their orientation, 45 percent had been threatened
with violence, and 17 percent had experienced a physical
attack.''.
(b) Purpose.--The purpose of this Act is to provide for an
examination of how secondary schools are implementing the
policy guidance of the Department of Education's Office for
Civil Rights related to sexual harassment directed against
gay, lesbian, bisexual, and transgender students.
SEC. 2. STUDY OF HOW EDUCATIONAL INSTITUTIONS ARE
IMPLEMENTING THE POLICY GUIDANCE RELATING TO
SEXUAL HARASSMENT.
(a) In General.--The United States Commission on Civil
Rights (hereafter in this Act referred to as the
``Commission'') shall conduct a study of the 1997 final
policy guidance entitled ``Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties'' published in the Federal Register on March
13, 1997, 62 Fed. Reg. 12034, and the application of such
policy guidance.
(b) Scope.--
(1) Nationwide.--The study shall be conducted nationwide.
(2) Elements of study.--The study shall examine, at a
minimum, with regard to secondary schools--
(A) the extent to which there exists sexual harassment
against gay and lesbian students in secondary schools, using
the applicable standards in the policy guidance of the Office
for Civil Rights described in subsection (a);
(B) the extent to which there exists gender-based
harassment that negatively affects the learning environment
of gay, lesbian, bisexual, and transgender students in
secondary schools, applying the definition of such gender-
based harassment contained in the 2001 update of the policy
guidance entitled ``Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties'' for which a notice of availability was
published in the Federal Register on January 19, 2001, 66
Fed. Reg. 5512;
(C) the level of awareness by school officials and students
of the policy guidance described in subsection (a); and
(D) the level of implementation of such policy guidance.
(c) Definition.--In this section, the term ``secondary
school'' has the meaning given the term in section 14101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
8801).
SEC. 3. REPORTING OF FINDINGS.
(a) In General.--Not later than 18 months after the date of
enactment of this Act, the Commission shall transmit to
Congress and to the Secretary of Education--
(1) a report of the Commission's findings under section 2;
and
(2) any policy recommendations developed by the Commission
based upon the study carried out under section 2.
(b) Dissemination.--The report and recommendations shall be
disseminated, in a manner that is easily understandable, to
the public by means that include the Internet.
SEC. 4. COOPERATION OF FEDERAL AGENCIES.
(a) In General.--The head of each Federal department or
agency shall cooperate in all respects with the Commission
with respect to the study under section 2.
(b) Information.--The head of each Federal department or
agency shall provide to the Commission, to the extent
permitted by law, such data, reports, and documents
concerning the subject matter of such study as the Commission
may request.
(c) Definition.--In this section, the term ``Federal
department or agency'' means any agency as defined in section
551 of title 5, United States Code.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to
carry out this Act, such sums as may be necessary for fiscal
year 2002.
(b) Availability.--Any amount appropriated under the
authority of subsection (a) shall remain available until
expended.
______
By Mr. BAYH:
S. 1358. A bill to revise Federal building energy efficiency
performance standards, to establish the Office of Federal Energy
Productivity within the Department of Energy, to amend Federal Energy
Management Program requirements under the National Energy Conservation
Policy Act, to enact into law certain requirements of Executive Order
No. 13123, and for other purposes; to the Committee on Energy and
Natural Resources.
Mr. BAYH. 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. 1358
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 ``Federal Facility Energy
Management Act of 2001''.
SEC. 2. PURPOSE.
The purpose of this Act is to increase the energy
efficiency of facilities of Federal agencies by--
(1) establishing the Office of Federal Energy Productivity
within the Department of Energy to provide for interagency
coordination in evaluating opportunities for, and
implementation of, energy efficiency measures and programs;
(2) updating energy reduction goals;
(3) expanding Federal agency resources for energy
measurement and improving accountability by providing for--
(A) energy metering and monitoring;
(B) transparent energy spending; and
(C) rigorous interagency and congressional oversight;
(4) promoting the acquisition and operation of more
efficient facilities by extending the authority and
eligibility of a Federal agency to enter into energy savings
performance contracts; and
(5) establishing a reliable and steady source of funding
for permanent energy capital improvement available to
supplement appropriations for use by Federal agencies and the
Architect of the Capitol--
(A) to fund energy efficiency projects; and
(B) to leverage funding for energy savings performance
contracts.
SEC. 3. REVISED FEDERAL BUILDING ENERGY EFFICIENCY
PERFORMANCE STANDARDS.
Section 305 of the Energy Conservation and Production Act
(42 U.S.C. 6834) is amended--
(1) in subsection (a)--
(A) in paragraph (2)(A), by striking ``CABO Model Energy
Code, 1992'' and inserting ``the International Residential
Code''; and
(B) by adding at the end the following:
``(3) Revised federal building energy efficiency
performance standards.--
``(A) In general.--Not later than 1 year after the date of
enactment of this paragraph, the Secretary of Energy shall
establish, by rule, revised Federal building energy
efficiency performance standards that require that--
``(i) new commercial buildings and multifamily high rise
residential buildings be constructed so as--
[[Page S8924]]
``(I) to have, in the aggregate, a level of energy
efficiency that is 10 percent greater than the level of
energy efficiency required under the standards established
under paragraph (1); and
``(II) to meet or exceed the most recent ASHRAE Standard
90.1, approved by the American Society of Heating,
Refrigerating and Air-Conditioning Engineers, Inc.;
``(ii) new residential buildings (other than those
described in clause (i)) be constructed so as to exceed the
level of energy efficiency required under the most recent
version of the International Residential Code by not less
than 10 percent.
``(B) Additional revisions.--Not later than 180 days after
the date of approval of amendments to ASHRAE Standard 90.1 or
the International Residential Code, the Secretary of Energy
shall determine, based on the cost-effectiveness of the
requirements under the amendments, whether the revised
standards established under this paragraph should be updated
to reflect the amendments.
``(C) Computer software.--The Secretary of Energy shall
develop computer software to facilitate compliance with the
revised standards established under this paragraph.
``(D) Statement on compliance of new buildings.--In the
budget request of the Federal agency for each fiscal year and
each report submitted by the Federal agency under section
548(a) of the National Energy Conservation Policy Act (42
U.S.C. 8258(a)), the head of each Federal agency shall
include--
``(i) a list of all new Federal buildings of the Federal
agency; and
``(ii) a statement concerning whether the Federal buildings
meet or exceed the revised standards established under this
paragraph, including a metering and commissioning component
that is in compliance with the measurement and verification
protocols of the Department of Energy.
``(E) Authorization of appropriations.--There are
authorized to be appropriated such sums as are necessary to
carry out this paragraph and to implement the revised
standards established under this paragraph.''; and
(2) by adding at the end the following:
``(e) Energy Labeling Program.--The Secretary of Energy, in
cooperation with the Administrator of the Environmental
Protection Agency, shall develop an energy labeling program
for new Federal buildings that exceed the revised standards
established under subsection (a)(3) by 15 percent or more.
``(f) Collection of Interval Solar Data.--The Secretary of
Commerce shall collect interval solar data at all weather
stations under the jurisdiction of the Secretary of Commerce
for use in determining building energy efficiency performance
under this section.''.
SEC. 4. OFFICE OF FEDERAL ENERGY PRODUCTIVITY OF THE
DEPARTMENT OF ENERGY.
(a) In General.--Title II of the Department of Energy
Organization Act is amended by inserting after section 211
(42 U.S.C. 7141) the following:
``SEC. 212. OFFICE OF FEDERAL ENERGY PRODUCTIVITY.
``(a) Establishment.--There is established, within the
Department, the Office of Federal Energy Productivity
(referred to in this section as the `Office').
``(b) Assistant Secretary for Federal Energy
Productivity.--
``(1) In general.--The Office shall be headed by the
Assistant Secretary for Federal Energy Productivity (referred
to in this section as the `Assistant Secretary'), who shall
report directly to the Secretary.
``(2) Duties.--The Assistant Secretary shall--
``(A) ensure compliance with the energy use and expenditure
requirements applicable to Federal agencies under Federal law
(including Executive orders);
``(B) perform all duties assigned to the Director of the
Federal Energy Management Program of the Department of
Energy, including duties assigned to the Director by the
President by any Executive order in effect on the date of
enactment of this subparagraph;
``(C) coordinate implementation of energy efficiency
requirements by Federal agencies using staff of the Office
that have expertise in the mission of each Federal agency;
``(D) coordinate compilation of, and review, energy-use
reports required to be submitted by Federal agencies under
this Act and other Federal law (including Executive orders);
``(E) serve as a liaison from the Federal Government to the
private sector to identify opportunities and obstacles to
expanded private and Federal markets for energy management
technologies, energy efficiency technologies, and renewable
energy technologies;
``(F) operate the Federal Energy Bank established by
section 552 of the National Energy Conservation Policy Act;
``(G)(i) not later than 120 days after the date of
enactment of this subparagraph, issue such guidelines for
Federal agency energy preparedness and energy emergency
response as the Secretary determines to be appropriate; and
``(ii) in accordance with paragraph (3), receive, review,
and report on plans submitted by Federal agencies in
conformance with the guidelines; and
``(H)(i) not later than 180 days after the date on which
the first Assistant Secretary takes office, identify and
submit to Congress a list of the principal conservation
officers under section 656; and
``(ii) annually update the list.
``(3) Energy preparedness and energy emergency response
plans.--
``(A) Submission by federal agencies.--The head of each
Federal agency shall submit to the Assistant Secretary
annually (or at such intervals as the Secretary determines to
be appropriate) an energy preparedness and energy emergency
response plan for the Federal agency that is in conformance
with the guidelines issued under paragraph (2)(G)(i).
``(B) Review by assistant secretary.--The Assistant
Secretary shall review each plan submitted under subparagraph
(A) for effectiveness and feasibility.
``(C) Report to congress.--The Assistant Secretary shall
submit to the President and Congress an annual report on the
ability of each Federal agency--
``(i) to reduce energy use on an emergency basis; and
``(ii) to perform the mission of the Federal agency during
such a period of emergency reduced energy use.
``(c) Liaison to Department of Defense.--
``(1) In general.--Not later than 180 days after the date
of enactment of this paragraph, the Assistant Secretary shall
appoint an individual employed by the Office to serve as a
liaison to the Department of Defense.
``(2) Duties.--The individual appointed under paragraph (1)
shall coordinate energy efficiency measures, and energy
efficiency reporting to the President and Congress, into the
operation of the Department of Defense without compromising
national security or the defense mission of the Department of
Defense.
``(3) Security clearance.--The individual appointed under
paragraph (1) shall have appropriate security clearance.
``(d) Report to Congress.--The Secretary, acting through
the Office, shall submit to Congress an annual report that--
``(1) describes the energy expenditures, investments, and
savings of each Federal agency;
``(2) describes the obstacles to meeting the energy
efficiency requirements under Federal law (including
Executive orders) that are faced by each Federal agency; and
``(3) includes an accounting of energy-consuming products
procured by each Federal agency that indicates--
``(A) which energy-consuming products procured by the
Federal agency during the preceding year were Energy Star
products or FEMP designated products (as those terms are
defined in section 551(a) of the National Energy Conservation
Policy Act); and
``(B) which energy-consuming products procured by the
Federal agency during the preceding year were neither Energy
Star products nor FEMP designated products.
``(e) Audits of Federal Energy Management Programs.--
``(1) In general.--The Assistant Secretary may require the
Inspector General of each Federal agency to conduct audits of
the energy management programs of the Federal agency every 3
years.
``(2) Guidelines.--The Assistant Secretary shall--
``(A) issue guidelines for the conduct of audits described
in paragraph (1); and
``(B) conduct training for Inspectors General on use of the
guidelines.''.
(b) Liaison From Department of Defense.--The Secretary of
Defense shall--
(1) establish as a senior level position within the
Department of Defense the position of energy management
liaison; and
(2) assign to the official appointed to that position by
the Secretary of Defense the duty to coordinate with
appropriate officials of the Department of Defense and
appropriate officials of the Department of Energy concerning
energy use and expenditure requirements applicable to the
Department of Defense under Federal law (including Executive
orders).
(c) Technical and Conforming Amendments.--The table of
contents in the first section of the Department of Energy
Organization Act (42 U.S.C. 7101 note) is amended --
(1) in the item relating to section 209, by striking
``Section'' and inserting ``Sec.'';
(2) by inserting after the item relating to section 211 the
following:
``Sec. 212. Office of Federal Energy Productivity.'';
and
(3) in the items relating to each of sections 213 through
216, by inserting ``Sec.'' before the section designation.
SEC. 5. ENERGY REDUCTION GOALS.
(a) In General.--Section 543 of the National Energy
Conservation Policy Act (42 U.S.C. 8253) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1) and inserting the following:
``(1) In general.--Subject to paragraph (2), each agency
shall apply energy conservation measures to, and shall
improve the design for the construction of, the Federal
buildings of the agency (including each industrial or
laboratory facility) so that the energy consumption per gross
square foot of the Federal buildings of the agency in
calendar years 2002 through 2011 is reduced, as compared with
the energy consumption per gross square foot of the Federal
buildings of the agency in calendar year 2000, by the
percentage specified in the following table:
``Calendar year: Percentage reduction:
2002...........................................................2 ....
2003...........................................................4 ....
2004...........................................................6 ....
2005...........................................................8 ....
[[Page S8925]]
2006..........................................................10 ....
2007..........................................................12 ....
2008..........................................................14 ....
2009..........................................................16 ....
2010..........................................................18 ....
2011.......................................................20.'';....
(B) by striking ``(2) An'' and inserting the following:
``(2) Exclusion of certain federal buildings.--An''; and
(C) by adding at the end the following:
``(3) Review and revision of energy performance
requirement.--Not later than December 31, 2010, the Secretary
shall--
``(A) review the results of the implementation of the
energy performance requirement established under paragraph
(1); and
``(B) submit to Congress recommendations concerning energy
performance requirements for calendar years 2012 through
2021.''; and
(2) in subsection (c)--
(A) by striking paragraph (1) and inserting the following:
``(1) In general.--
``(A) Exclusions.--An agency may exclude, from the energy
performance requirement for a calendar year established under
subsection (a) and the energy management requirement
established under subsection (b), any Federal building or
collection of Federal buildings, and the associated energy
consumption and gross square footage, if--
``(i) the head of the agency finds that compliance with
those requirements would be impracticable; and
``(ii) the agency has--
``(I) completed and submitted all federally required energy
management reports;
``(II) achieved compliance with the energy efficiency
requirements of--
``(aa) this Act;
``(bb) subtitle F of title I of the Energy Policy Act of
1992 (42 U.S.C. 8262 et seq.);
``(cc) Executive orders; and
``(dd) other Federal law; and
``(III) implemented all practicable, cost-effective, life-
cycle projects with respect to the Federal building or
collection of Federal buildings to be excluded.
``(B) Finding of impracticability.--A finding of
impracticability under subparagraph (A)(i) shall be based
on--
``(i) the energy intensiveness of activities carried out in
the Federal building or collection of Federal buildings; or
``(ii) the fact that the Federal building or collection of
Federal buildings is used in the performance of a national
security function.'';
(B) in paragraph (2)--
(i) by striking ``(2) Each agency'' and inserting the
following:
``(2) Review by secretary.--Each agency''; and
(ii) in the second sentence--
(I) by striking ``impracticability standards'' and
inserting ``standards for exclusion''; and
(II) by striking ``a finding of impracticability'' and
inserting ``the exclusion''; and
(C) by adding at the end the following:
``(3) Criteria.--Not later than 180 days after the date of
enactment of this paragraph, the Secretary shall issue
guidelines that establish criteria for exclusions under
paragraph (1).''.
(b) Reports.--Section 548(b) of the National Energy
Conservation Policy Act (42 U.S.C. 8258(b)) is amended--
(1) in the subsection heading, by inserting ``the President
and'' before ``Congress''; and
(2) by inserting ``President and'' before ``Congress''.
(c) Conforming Amendment.--Section 550(d) of the National
Energy Conservation Policy Act (42 U.S.C. 8258b(d)) is
amended in the second sentence by striking ``the 20 percent
reduction goal established under section 543(a) of the
National Energy Conservation Policy Act (42 U.S.C.
8253(a)).'' and inserting ``each of the energy reduction
goals established under section 543(a).''.
SEC. 6. ENERGY USE MEASUREMENT AND ACCOUNTABILITY.
(a) In General.--Section 543 of the National Energy
Conservation Policy Act (42 U.S.C. 8253) is amended by adding
at the end the following:
``(e) Metering of Energy Use.--
``(1) In general.--Subject to paragraph (2), each agency
shall meter or submeter the energy use in each Federal
building, industrial process, and energy-using structure of
the agency.
``(2) Guidelines.--
``(A) In general.--Not later than 180 days after the date
of enactment of this subsection, the Secretary shall issue
guidelines concerning the extent of the metering and
submetering required under paragraph (1).
``(B) Requirements for guidelines.--The guidelines shall--
``(i) take into consideration--
``(I) the cost of metering and submetering and the reduced
cost of operation and maintenance expected to result from
metering and submetering;
``(II) the extent to which metering and submetering are
expected to result in--
``(aa) increased potential for energy management;
``(bb) increased potential for energy savings and energy
efficiency improvement; and
``(cc) cost and energy savings due to utility contract
aggregation; and
``(III) the measurement and verification protocols of the
Department of Energy;
``(ii) include recommendations concerning the amount of
funds and the number of trained personnel necessary to gather
and use the metering information to track and reduce energy
use;
``(iii) establish 1 or more dates, not later than 1 year
after the date of issuance of the guidelines, on which the
requirement specified in paragraph (1) shall take effect; and
``(iv) establish exclusions from the requirement specified
in paragraph (1) based on the de minimus quantity of energy
use of a Federal building, industrial process, or structure.
``(f) Use of Interval Data in Federal Buildings.--
``(1) In general.--Beginning not later than January 1,
2003, each agency shall use, to the maximum extent
practicable, for the purposes of efficient use of energy and
reduction in the cost of electricity used in the Federal
buildings of the agency, interval consumption data that
measure on a real-time or daily basis consumption of
electricity in the Federal buildings of the agency.
``(2) Plan.--As soon as practicable after the date of
enactment of this subsection, in a report submitted by the
agency under section 548(a), each agency shall submit to the
Secretary a plan describing how the agency will implement the
requirement of paragraph (1), including how the agency will
designate personnel primarily responsible for achieving the
requirement.''.
(b) Budget Submissions to the President.--Section 545 of
the National Energy Conservation Policy Act (42 U.S.C. 8255)
is amended--
(1) by inserting ``(a) Budget Submission to Congress.--''
before ``The President''; and
(2) by adding at the end the following:
``(b) Budget Submissions to the President.--The head of
each agency shall submit to the President, as part of the
budget request of the agency for each fiscal year, a
statement of the amount of appropriations requested in the
budget for the electric and other energy costs and compliance
costs described in subsection (a).''.
(c) Energy and Water Conservation Incentive Program.--
Section 546 of the National Energy Conservation Policy Act
(42 U.S.C. 8256) is amended by adding at the end the
following:
``(e) Energy and Water Conservation Incentive Program.--
``(1) In general.--In addition to the other incentive
programs established under this section, the Secretary shall
establish an incentive program under which, for any fiscal
year, of the amounts made available to each agency to pay the
costs of providing energy and water for Federal buildings
under the jurisdiction of the agency, the agency may retain,
without fiscal year limitation, such amounts as are
determined under paragraph (2) to have been saved because of
energy and water management and conservation projects carried
out by the agency.
``(2) Determination of retained amounts.--In cooperation
with the Secretary of Defense and the Director of the Office
of Management and Budget, the Secretary shall issue
guidelines and establish methodologies for--
``(A) retention of amounts saved as described in paragraph
(1) for a period ending not more than 3 years after the date
of completion of the project that resulted in the savings;
``(B) establishment of a baseline amount of energy and
water expenditures, consisting of the amounts that would be
expended on energy or water but for implementation of the
project; and
``(C) use by agencies of the baseline amounts established
under subparagraph (B) in submitting to the President budget
requests for appropriated amounts equal to the amounts of
savings that an agency is expected to be entitled to retain
under paragraph (1).
``(3) Use of retained amounts.--Amounts retained under
paragraph (1) may be used to carry out energy or water
management and conservation projects, invest in renewable
energy systems, and purchase electricity from renewable
energy sources for use, at the Federal building at which the
project that resulted in the savings was carried out.
``(4) Annual report on use of amounts.--Each report
submitted by an agency under section 548(a) shall describe--
``(A)(i) the amounts retained under paragraph (1) during
the period covered by the report; and
``(ii) the use of the amounts retained; and
``(B) if no amounts were retained under paragraph (1), why
no amounts were retained and the plans of the agency for
retaining such amounts in the future.''.
(d) Reports.--Section 548 of the National Energy
Conservation Policy Act (42 U.S.C. 8258) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``and'' at the end;
(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(3) the quantity of greenhouse gases emitted by the
Federal buildings of the agency during each fiscal year, as
measured by the agency in consultation with the Assistant
Secretary for Federal Energy Productivity of the Department
of Energy.'';
(2) in subsection (b)(1)--
(A) in subparagraph (B), by striking ``and'' at the end;
(B) in subparagraph (C), by striking the semicolon at the
end and inserting ``; and''; and
[[Page S8926]]
(C) by adding at the end the following:
``(D) the quantity of greenhouse gases emitted by the
Federal buildings of each agency during each fiscal year;'';
and
(3) by adding at the end the following:
``(d) Recommendations on Means of Accounting for Energy
Use.--
``(1) In general.--The Secretary, in cooperation with the
Administrator of the Energy Information Agency, the
Administrator of General Services, and the Secretary of
Defense, shall conduct a study to develop recommendations on
the most accurate means of accounting for energy use in
Federal facilities.
``(2) Required recommendations.--Recommendations shall
include a recommendation concerning whether a uniform
performance measure based on British thermal units per gross
square foot is preferable to an agency-specific performance
measure or any other performance-based metric.
``(3) Report to congress.--Not later than 1 year after the
date of enactment of this subsection, the Secretary shall
submit to Congress a report on the results of the study.''.
SEC. 7. FEDERAL GOVERNMENT PROCUREMENT OF ENERGY EFFICIENT
PRODUCTS.
(a) Procurement of Energy Efficient Products.--
(1) Requirements.--
(A) In general.--Part 3 of title V of the National Energy
Conservation Policy Act is amended--
(i) by redesignating section 551 (42 U.S.C. 8259) as
section 554; and
(ii) by inserting after section 550 (42 U.S.C. 8258b) the
following:
``SEC. 551. FEDERAL GOVERNMENT PROCUREMENT OF ENERGY
EFFICIENT PRODUCTS.
``(a) Definitions.--In this section:
``(1) Energy star product.--The term `Energy Star product'
means a product that is rated for energy efficiency under an
Energy Star program.
``(2) Energy star program.--The term `Energy Star program'
means a program administered by the Administrator of the
Environmental Protection Agency that involves voluntary
cooperation between that agency and an industry to enhance
the energy efficiency of the energy consuming products of the
industry so as to reduce--
``(A) burdens on air conditioning and electrical systems of
buildings that result from the use of the products in the
buildings; and
``(B) air pollution caused by utility power generation.
``(3) Executive agency.--The term `executive agency' has
the meaning given the term in section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403).
``(4) FEMP designated product.--The term `FEMP designated
product' means a product that is designated under the Federal
Energy Management Program of the Department of Energy as
being among the highest 25 percent of equivalent products for
energy efficiency.
``(b) Procurement of Energy Efficient Products.--
``(1) Requirement.--To meet the requirements of an
executive agency for an energy consuming product, the head of
the executive agency shall, except as provided in paragraph
(2), procure--
``(A) an Energy Star product; or
``(B) if there is no Energy Star product that meets the
requirements of the executive agency and that is reasonably
available, a FEMP designated product.
``(2) Exceptions.--The head of an executive agency is not
required to procure an Energy Star product or FEMP designated
product under paragraph (1) if--
``(A) an Energy Star product or FEMP designated product is
not cost effective over the life cycle of the product; or
``(B) no Energy Star product or FEMP designated product is
reasonably available that meets the requirements of the
executive agency.
``(3) Procurement planning.--
``(A) Requirement.--The head of an executive agency shall
incorporate into the specifications for a procurement
involving energy consuming products and systems, and into the
factors for the evaluation of offers received for the
procurement, criteria for energy efficiency that are
consistent with--
``(i) the criteria for energy efficiency used for rating
products under the applicable Energy Star program; and
``(ii) the criteria used for designating products under the
Federal Energy Management Program of the Department of
Energy.
``(B) Applicability.--The requirement of subparagraph (A)
shall apply to--
``(i) a contract for new construction or renovation of a
building;
``(ii) a basic ordering agreement;
``(iii) a blanket purchasing agreement;
``(iv) a Government-wide procurement contract; and
``(v) any other contract for a procurement described in
that subparagraph.
``(c) Listing of Energy Efficient Products in Federal
Catalogs.--
``(1) Development.--The Administrator of General Services
and the Director of the Defense Logistics Agency of the
Department of Defense shall--
``(A) develop, and revise if appropriate, catalog listings
of Energy Star products and FEMP designated products; and
``(B) clearly identify in the listings the products that
are Energy Star products and the products that are FEMP
designated products.
``(2) Availability of listings.--The Administrator and the
Director shall make the listings available in printed and
electronic formats.
``(d) GSA and DLA Inventories and Listings.--No energy
consuming product may be made available to any executive
agency from an inventory or listing of products by the
General Services Administration or the Defense Logistics
Agency unless--
``(1) the product is an Energy Star product;
``(2) the product is a FEMP designated product and no
equivalent Energy Star product is reasonably available; or
``(3) no equivalent Energy Star product or FEMP designated
product is reasonably available.
``(e) Regulations.--The Secretary of Energy shall
promulgate regulations to carry out this section, including
policies and conditions for exercising authority under this
section to procure energy consuming products other than
Energy Star products and FEMP designated products.''.
(B) Conforming amendments.--
(i) The table of contents in section 1(b) of the National
Energy Conservation Policy Act (42 U.S.C. 8201 note) is
amended by striking the item relating to section 551 and
inserting the following:
``Sec. 551. Federal Government procurement of energy efficient
products.
``Sec. 552. Federal Energy Bank.
``Sec. 553. Energy and water savings measures in congressional
buildings.
``Sec. 554. Definitions.''.
(ii) Section 151(5) of the Energy Policy Act of 1992 (42
U.S.C. 8262(5)) is amended by striking ``section 551(4)'' and
inserting ``section 554(4)''.
(iii) Section 164(a) of the Energy Policy Act of 1992 (42
U.S.C. 8262h note; Public Law 102-486) is amended by striking
``section 551(5)'' and inserting ``section 554(5)''.
(2) Implementation.--
(A) Regulations.--Not later than 180 days after the
effective date specified in subsection (d), the Secretary of
Energy shall promulgate regulations to carry out section 551
of the National Energy Conservation Policy Act (as added by
paragraph (1)(A)(ii)).
(B) Disposal of existing inventories.--An energy consuming
product that, on the effective date specified in subsection
(d), is in an inventory of products offered by the General
Services Administration or the Defense Logistics Agency may
be made available to an executive agency out of that
inventory without regard to section 551(d) of the National
Energy Conservation Policy Act.
(C) Procurement of replacement inventory.--On and after the
effective date specified in subsection (d), the Administrator
of General Services and the Director of the Defense Logistics
Agency of the Department of Defense may not list or procure
for an inventory of products offered by the General Services
Administration or the Defense Logistics Agency an energy
consuming product that, under section 551(d) of the National
Energy Conservation Policy Act, may not be made available to
executive agencies out of that inventory.
(b) Procurement Guidelines.--The Secretary of Energy, in
cooperation with the Secretary of Defense, shall issue
guidelines that the Secretary of Defense may apply to the
procurement of energy consuming products by the Department of
Defense to ensure that, to the maximum extent feasible
consistent with the performance of the national security
missions of the Department of Defense, the products selected
for procurement are energy efficient products.
(c) Designation of Energy Star Products.--The Administrator
of the Environmental Protection Agency and the Secretary of
Energy shall--
(1) expedite the process of designating products as Energy
Star products (as defined in section 551(a) of the National
Energy Conservation Policy Act (as added by subsection
(a)(1)(A)(ii))); and
(2) merge the efficiency rating procedures used by the
Environmental Protection Agency and the Department of Energy
under the Energy Star programs (as defined in section 551(a)
of that Act).
(d) Effective Date.--Subsection (a) and the amendment made
by that subsection take effect on the date that is 180 days
after the date of enactment of this Act.
SEC. 8. FEDERAL ENERGY BANK.
Part 3 of title V of the National Energy Conservation
Policy Act is amended by inserting after section 551 (as
added by section 7(a)(1)(A)(ii)) the following:
``SEC. 552. FEDERAL ENERGY BANK.
``(a) Definitions.--In this section:
``(1) Bank.--The term `Bank' means the Federal Energy Bank
established by subsection (b).
``(2) Energy or water efficiency project.--The term `energy
or water efficiency project' means a project that assists a
Federal agency in meeting or exceeding the energy or water
efficiency requirements of--
``(A) this part;
``(B) title VIII;
``(C) subtitle F of title I of the Energy Policy Act of
1992 (42 U.S.C. 8262 et seq.); or
``(D) any applicable Executive order, including Executive
Order No. 13123 (42 U.S.C. 8251 note (June 3, 1999)).
``(3) Federal agency.--The term `Federal agency' means--
``(A) an Executive agency (as defined in section 105 of
title 5, United States Code);
``(B) the United States Postal Service;
``(C) the United States Patent and Trademark Office;
[[Page S8927]]
``(D) Congress and any other entity in the legislative
branch; and
``(E) a Federal court and any other entity in the judicial
branch.
``(4) Utility payment.--The term `utility payment' means a
payment made to supply electricity, natural gas, or any other
form of energy to provide the heating, ventilation, air
conditioning, lighting, or other energy needs of a facility
of a Federal agency.
``(b) Establishment of Bank.--
``(1) In general.--There is established in the Treasury of
the United States a fund to be known as the `Federal Energy
Bank', consisting of--
``(A) such amounts as are deposited in the Bank under
paragraph (2);
``(B) such amounts as are repaid to the Bank under
subsection (c)(2)(D); and
``(C) any interest earned on investment of amounts in the
Bank under paragraph (3).
``(2) Deposits in bank.--
``(A) In general.--Subject to the availability of
appropriations and to subparagraph (B), the Secretary of the
Treasury shall deposit in the Bank an amount equal to 2.5
percent for fiscal year 2003 and 5 percent for each fiscal
year thereafter of the total amount of utility payments made
by all Federal agencies for the preceding fiscal year.
``(B) Maximum amount in bank.--Deposits under subparagraph
(A) shall cease beginning with the fiscal year following the
fiscal year in which the amounts in the Bank (including
amounts on loan from the Bank) become equal to or exceed
$1,000,000,000.
``(C) Limitation.--No funds made available to any Federal
agency (other than to the Department of the Treasury under
subsection (f)) shall be deposited in the Bank.
``(3) Investment of amounts.--The Secretary of the Treasury
shall invest such portion of the Bank as is not, in the
judgment of the Secretary, required to meet current
withdrawals. Investments may be made only in interest-bearing
obligations of the United States.
``(c) Loans From the Bank.--
``(1) In general.--The Secretary of the Treasury shall
transfer from the Bank to the Secretary such amounts as are
appropriated to carry out the loan program under paragraph
(2).
``(2) Loan program.--
``(A) Establishment.--
``(i) In general.--In accordance with subsection (d), the
Secretary, in consultation with the Secretary of Defense, the
Administrator of General Services, and the Director of the
Office of Management and Budget, shall establish a program to
make loans of amounts in the Bank to any Federal agency that
submits an application satisfactory to the Secretary in order
to pay the costs of a project described in subparagraph (C).
``(ii) Commencement of operations.--The Secretary may
begin--
``(I) accepting applications for loans from the Bank in
fiscal year 2002; and
``(II) making loans from the Bank in fiscal year 2003.
``(B) Energy savings performance contracting funding.--The
Secretary shall not make a loan from the Bank to a Federal
agency for a project for which funding is available and is
acceptable to the Federal agency under title VIII.
``(C) Purposes of loan.--
``(i) In general.--A loan from the Bank may be used to
pay--
``(I) the costs of an energy or water efficiency project,
or a renewable or alternative energy project, for a new or
existing Federal building (including selection and design of
the project);
``(II) the costs of an energy metering plan developed in
accordance with the measurement and verification protocols of
the Department of Energy, or energy metering equipment, for
the purpose of--
``(aa) a new or existing building energy system; or
``(bb) verification of the energy savings under an energy
savings performance contract under title VIII; or
``(III) at the time of contracting, the costs of
development or cofunding of an energy savings performance
contract (including a utility energy service agreement) in
order to shorten the payback period of the project that is
the subject of the energy savings performance contract.
``(ii) Limitation.--A Federal agency may use not more than
10 percent of the amount of a loan under subclause (I) or
(II) of clause (i) to pay the costs of administration and
proposal development (including data collection and energy
surveys).
``(iii) Renewable and alternative energy projects.--Not
more than 25 percent of the amount on loan from the Bank at
any time may be loaned for renewable energy and alternative
energy projects (as defined by the Secretary in accordance
with applicable law (including Executive orders)).
``(D) Repayments.--
``(i) In general.--Subject to clauses (ii) through (iv), a
Federal agency shall repay to the Bank the principal amount
of a loan plus interest at a rate determined by the
President, in consultation with the Secretary and the
Secretary of the Treasury.
``(ii) Waiver or reduction of interest.--The Secretary may
waive or reduce the rate of interest required to be paid
under clause (i) if the Secretary determines that payment of
interest by a Federal agency at the rate determined under
that clause is not required to fund the operations of the
Bank.
``(iii) Determination of interest rate.--The interest rate
determined under clause (i) shall be at a rate that is
sufficient to ensure that, beginning not later than October
1, 2007, interest payments will be sufficient to fully fund
the operations of the Bank.
``(iv) Insufficiency of appropriations.--
``(I) Request for appropriations.--As part of the budget
request of the Federal agency for each fiscal year, the head
of each Federal agency shall submit to the President a
request for such amounts as are necessary to make such
repayments as are expected to become due in the fiscal year
under this subparagraph.
``(II) Suspension of repayment requirement.--If, for any
fiscal year, sufficient appropriations are not made available
to a Federal agency to make repayments under this
subparagraph, the Bank shall suspend the requirement of
repayment under this subparagraph until such appropriations
are made available.
``(E) Federal agency energy budgets.--Until a loan is
repaid, a Federal agency budget submitted by the President to
Congress for a fiscal year shall not be reduced by the value
of energy savings accrued as a result of any energy
conservation measure implemented using amounts from the Bank.
``(F) No rescission or reprogramming.--A Federal agency
shall not rescind or reprogram loan amounts made available
from the Bank except as permitted under guidelines issued
under subparagraph (G).
``(G) Guidelines.--The Secretary shall issue guidelines for
implementation of the loan program under this paragraph,
including selection criteria, maximum loan amounts, and loan
repayment terms.
``(d) Selection Criteria.--
``(1) In general.--The Secretary shall establish criteria
for the selection of projects to be awarded loans in
accordance with paragraph (2).
``(2) Selection criteria.--
``(A) In general.--The Secretary may make loans from the
Bank only for a project that--
``(i) is technically feasible;
``(ii) is determined to be cost-effective using life cycle
cost methods established by the Secretary by regulation;
``(iii) includes a measurement and management component,
based on the measurement and verification protocols of the
Department of Energy, to--
``(I) commission energy savings for new and existing
Federal facilities;
``(II) monitor and improve energy efficiency management at
existing Federal facilities; and
``(III) verify the energy savings under an energy savings
performance contract under title VIII; and
``(iv)(I) in the case of renewable energy or alternative
energy project, has a simple payback period of not more than
15 years; and
``(II) in the case of any other project, has a simple
payback period of not more than 10 years.
``(B) Priority.--In selecting projects, the Secretary shall
give priority to projects that--
``(i) are a component of a comprehensive energy management
project for a Federal facility; and
``(ii) are designed to significantly reduce the energy use
of the Federal facility.
``(e) Reports and Audits.--
``(1) Reports to the secretary.--Not later than 1 year
after the completion of installation of a project that has a
cost of more than $1,000,000, and annually thereafter, a
Federal agency shall submit to the Secretary a report that--
``(A) states whether the project meets or fails to meet the
energy savings projections for the project; and
``(B) for each project that fails to meet the energy
savings projections, states the reasons for the failure and
describes proposed remedies.
``(2) Audits.--The Secretary may audit, or require a
Federal agency that receives a loan from the Bank to audit,
any project financed with amounts from the Bank to assess the
performance of the project.
``(3) Reports to congress.--At the end of each fiscal year,
the Secretary shall submit to the Committee on Energy and
Commerce of the House of Representatives and the Committee on
Energy and Natural Resources of the Senate a report on the
operations of the Bank, including a statement of--
``(A) the total receipts by the Bank;
``(B) the total amount of loans from the Bank to each
Federal agency; and
``(C) the estimated cost and energy savings resulting from
projects funded with loans from the Bank.
``(f) Authorization of Appropriations.--There are
authorized to be appropriated to the Department of the
Treasury such sums as are necessary to fund--
``(1) deposits required under subsection (b)(2); and
``(2) the costs to the Treasury associated with the loan
program established under subsection (c)(2), as determined in
accordance with guidelines issued by the Office of Management
and Budget.''.
SEC. 9. ENERGY AND WATER SAVING MEASURES IN CONGRESSIONAL
BUILDINGS.
(a) In General.--Part 3 of title V of the National Energy
Conservation Policy Act is amended by inserting after section
552 (as added by section 8) the following:
``SEC. 553. ENERGY AND WATER SAVINGS MEASURES IN
CONGRESSIONAL BUILDINGS.
``(a) In General.--The Architect of the Capitol--
[[Page S8928]]
``(1) shall develop and implement a cost-effective energy
conservation strategy for all facilities administered by
Congress (referred to in this section as `congressional
buildings') to meet the mandatory standards for Federal
buildings established under title III of the Energy
Conservation and Production Act (42 U.S.C. 6831 et seq.);
``(2) shall submit to Congress, not later than 120 days
after the date of enactment of this section, a revised
comprehensive energy conservation and management plan that
includes life cycle cost methods to determine the cost-
effectiveness of proposed energy efficiency projects;
``(3) shall submit to Congress annually a report on
congressional energy management and conservation programs
that describes in detail--
``(A) energy expenditures and cost estimates for each
facility;
``(B) energy management and conservation projects; and
``(C) future priorities to ensure compliance with this
section;
``(4) shall perform energy surveys of all congressional
buildings and update the surveys as necessary;
``(5) shall use the surveys to determine the cost and
payback period of energy and water conservation measures
likely to achieve the energy consumption levels specified in
the strategy developed under paragraph (1);
``(6) shall install energy and water conservation measures
that will achieve those levels through life cycle cost
methods and procedures included in the plan submitted under
paragraph (2);
``(7) may contract with nongovernmental entities and use
private sector capital to finance energy conservation
projects and achieve energy consumption targets;
``(8) may develop innovative contracting methods that will
attract private sector funding for the installation of energy
efficient and renewable energy technology to meet the
requirements of this section, such as energy savings
performance contracts described in title VIII;
``(9) may participate in the Financing Renewable Energy and
Efficiency (FREE) Savings contracts program for Federal
Government facilities established by the Department of
Energy;
``(10) not later than 100 days after the date of enactment
of this section, shall submit to Congress the results of a
study of the installation of submetering in congressional
buildings;
``(11) shall produce information packages and `how-to'
guides for each Member and employing authority of Congress
that detail simple, cost-effective methods to save energy and
taxpayer dollars;
``(12) shall ensure that state-of-the-art energy efficiency
technologies are used in the construction of the Visitor
Center; and
``(13) shall include in the Visitor Center an exhibit on
the energy efficiency measures used in congressional
buildings.
``(b) Energy and Water Conservation Incentive.--
``(1) In general.--For any fiscal year, of the amounts made
available to the Architect of the Capitol to pay the costs of
providing energy and water for congressional buildings, the
Architect may retain, without fiscal year limitation, such
amounts as the Architect determines were not expended because
of energy and water management and conservation projects.
``(2) Use of retained amounts.--Amounts retained under
paragraph (1) may be used to carry out energy and water
management and conservation projects.
``(3) Annual report on use of amounts.--As part of each
annual report under subsection (a)(3), the Architect of the
Capitol shall submit to Congress a report on the amounts
retained under paragraph (1) and the use of the amounts.''.
(b) Repeal.--Section 310 of the Legislative Branch
Appropriations Act, 1999 (40 U.S.C. 166i), is repealed.
SEC. 10. ENERGY SAVINGS PERFORMANCE CONTRACTS.
(a) Cost Savings From Replacement Facilities.--Section
801(a) of the National Energy Conservation Policy Act (42
U.S.C. 8287(a)) is amended by adding at the end the
following:
``(3) Cost savings from replacement facilities.--
``(A) In general.--In the case of an energy savings
performance contract that provides for energy savings through
the construction and operation of 1 or more buildings or
other facilities to replace 1 or more existing buildings or
other facilities, benefits ancillary to the purpose of
achieving energy savings under the contract may include, for
the purpose of paragraph (1), savings resulting from reduced
costs of operation and maintenance at the replacement
buildings or other facilities as compared with the costs of
operation and maintenance at the buildings or other
facilities being replaced.
``(B) Determination of payments.--Notwithstanding paragraph
(2)(B), the aggregate annual payments by a Federal agency
under an energy savings performance contract described in
subparagraph (A) may take into account (through the
procedures developed under this section) savings resulting
from reduced costs of operation and maintenance as described
in subparagraph (A).''.
(b) Repeal of Sunset.--Section 801 of the National Energy
Conservation Policy Act (42 U.S.C. 8287) is amended by
striking subsection (c).
(c) Definitions.--The National Energy Conservation Policy
Act is amended by striking section 804 (42 U.S.C. 8287c) and
inserting the following:
``SEC. 804. DEFINITIONS.
``In this title:
``(1) Energy conservation measure.--The term `energy
conservation measure' has the meaning given the term in
section 554.
``(2) Energy saving.--The term `energy saving' means a
reduction, from a baseline cost established through a
methodology set forth in an energy savings performance
contract, in the cost of energy or water used in--
``(A) 1 or more existing federally owned buildings or other
federally owned facilities, that results from--
``(i) the lease or purchase of operating equipment, an
improvement, altered operation or maintenance, or a technical
service;
``(ii) increased efficiency in the use of existing energy
sources by cogeneration or heat recovery, excluding any
cogeneration process for a building that is not a federally
owned building or a facility that is not federally owned
facility; or
``(iii) increased efficiency in the use of existing water
sources or treatment of wastewater or stormwater; or
``(B) a replacement facility under section 801(a)(3).
``(3) Energy savings performance contract.--The term
`energy savings performance contract' means a contract that
provides for--
``(A) the performance of services for the design,
acquisition, installation, testing, operation, and, where
appropriate, maintenance and repair, of an energy
conservation measure or water conservation measure (or series
of such measures) at 1 or more locations; or
``(B) energy savings through the construction and operation
of 1 or more buildings or other facilities to replace 1 or
more existing buildings or other facilities.
``(4) Federal agency.--The term `Federal agency' means each
authority of the United States Government, regardless of
whether the authority is within or subject to review by
another agency.
``(5) Water conservation measure.--The term `water
conservation measure' means a conservation measure that--
``(A) improves the efficiency of use of water;
``(B) is cost-effective over the life cycle of the water
conservation measure; and
``(C) involves water conservation, water recycling or
reuse, more efficient treatment of wastewater or stormwater,
an improvement in operation or maintenance efficiency, a
retrofit activity, or any other related activity, that is
carried out at a building or other facility that is not a
Federal hydroelectric facility.''.
SEC. 11. FEDERAL FLEET FUEL ECONOMY AND USE OF ALTERNATIVE
FUELS.
(a) In General.--Section 303 of the Energy Policy Act of
1992 (42 U.S.C. 13212) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following:
``(f) Federal Fleet Fuel Economy and Use of Alternative
Fuels.--
``(1) Definitions.--
``(A) Average fuel economy.--The term `average fuel
economy' has the meaning given the term in section 32901 of
title 49, United States Code.
``(B) Covered vehicle.--
``(i) In general.--The term `covered vehicle' means a
passenger automobile or light duty motor vehicle.
``(ii) Exclusions.--The term `covered vehicle' does not
include--
``(I) a military tactical vehicle of the Armed Forces; or
``(II) any law enforcement, emergency, or other vehicle
class or type determined to be excluded under guidelines
issued by the Secretary of Energy under paragraph (6).
``(C) Federal agency.--The term `Federal agency' means an
Executive agency (as defined in section 105 of title 5,
United States Code) (including each military department (as
specified in section 102 of that title)) that operates 20 or
more motor vehicles in the United States.
``(D) Passenger automobile.--The term `passenger
automobile' has the meaning given the term in section 32901
of title 49, United States Code.
``(2) Minimum average fuel economy.--In fiscal year 2005
and each fiscal year thereafter, the average fuel economy of
the covered vehicles acquired by each Federal agency shall be
not less than 3 miles per gallon greater than the average
fuel economy of the covered vehicles acquired by the Federal
agency in fiscal year 2000.
``(3) Use of alternative fuels.--
``(A) In general.--Subject to subparagraph (B), in fiscal
year 2005 and each fiscal year thereafter, each Federal
agency shall use alternative fuels for at least 50 percent of
the total annual volume of motor fuel used by the Federal
agency to operate covered vehicles.
``(B) Inclusion of motor fuel purchased by state and local
governments.--Not more than 25 percent of the motor fuel
purchased by State and local governments at federally-owned
refueling facilities may be included by a Federal agency in
meeting the requirement of subparagraph (A).
``(4) Implementation plan.--Not later than 1 year after the
date of enactment of this paragraph, each Federal agency
shall develop and submit to the President and Congress an
implementation plan for meeting the requirements of this
subsection that
[[Page S8929]]
takes into account the fleet configuration and fleet
requirements of the Federal agency.
``(5) Annual report.--
``(A) In general.--Each Federal agency shall submit to the
President and Congress an annual report on the progress of
the Federal agency in meeting the requirements of this
subsection.
``(B) Guidelines.--The Secretary of Energy, acting through
the Assistant Secretary for Federal Energy Productivity and
in consultation with the Administrator of the Energy
Information Administration, shall issue guidelines for the
preparation by Federal agencies of reports under paragraph
(1), including guidelines concerning--
``(i) methods for measurement of average fuel economy; and
``(ii) the collection and annual reporting of data to
demonstrate compliance with this subsection.
``(6) Guidelines concerning exclusion of certain
vehicles.--Not later than 1 year after the date of enactment
of this paragraph, the Secretary of Energy, in consultation
with the Assistant Secretary for Federal Energy Productivity,
shall issue guidelines for Federal agencies to use in the
determination of vehicles to be excluded under paragraph
(1)(B)(ii).''.
(b) Alternative Fuel Use by Light Duty Federal Vehicles.--
Section 400AA of the Energy Policy and Conservation Act (42
U.S.C. 6374) is amended--
(1) in subsection (a)(3)(E)--
(A) by striking ``(E) Dual'' and inserting the following:
``(E) Operation of dual fueled vehicles.--
``(i) In general.--Subject to clause (ii), dual''; and
(B) by adding at the end the following:
``(ii) Minimum alternative fuel use.--For fiscal year 2005
and each fiscal year thereafter, not less than 50 percent of
the total annual volume of fuel used to operate dual fueled
vehicles acquired pursuant to this section shall consist of
alternative fuels.''; and
(2) in subsection (g)(4)(B), by inserting before the
semicolon at the end the following: ``, including any 3-
wheeled enclosed electric vehicle that has a vehicle
identification number''.
______
By Mr. BURNS (for himself, Mr. Breaux, Mr. Hagel, Mrs. Lincoln, and
Mr. Enzi):
S. 1359. A bill to amend the Communications Act of 1934 to promote
deployment of advanced services and foster the development of
competition for the benefit of consumers in all regions of the Nation
by relieving unnecessary burdens on the Nation's two percent local
exchange telecommunications carrier, and for other purposes; to the
Committee on Commerce, Science, and Transportation.
Mr. BURNS. Mr. President, I ask unanimous consent that the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1359
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 ``Facilitating Access to
Speedy Transmissions for Networks, E-commerce and
Telecommunications (FASTNET) Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) The Telecommunications Act of 1996 was enacted to
foster the rapid deployment of advanced telecommunications
and information technologies and services to all Americans by
promoting competition and reducing regulation in
telecommunications markets nationwide.
(2) The Telecommunications Act of 1996 specifically
recognized the unique abilities and circumstances of local
exchange carriers with fewer than two percent of the Nation's
subscriber lines installed in the aggregate nationwide.
(3) Given the markets two percent carriers typically serve,
such carriers are uniquely positioned to accelerate the
deployment of advanced services and competitive initiatives
for the benefit of consumers in less densely populated
regions of the Nation.
(4) Existing regulations are typically tailored to the
circumstances of larger carriers and therefore often impose
disproportionate burdens on two percent carriers, impeding
such carriers' deployment of advanced telecommunications
services and competitive initiatives to consumers in less
densely populated regions of the Nation.
(5) Reducing regulatory burdens on two percent carriers
will enable such carriers to devote additional resources to
the deployment of advanced services and to competitive
initiatives to benefit consumers in less densely populated
regions of the Nation.
(6) Reducing regulatory burdens on two percent carriers
will increase such carriers' ability to respond to
marketplace conditions, allowing them to accelerate
deployment of advanced services and competitive initiatives
to benefit consumers in less densely populated regions of the
Nation.
(b) Purposes.--The purposes of this Act are--
(1) to accelerate the deployment of advanced services and
the development of competition in the telecommunications
industry for the benefit of consumers in all regions of the
Nation, consistent with the Telecommunications Act of 1996,
by reducing regulatory burdens on local exchange carriers
with fewer than two percent of the Nation's subscriber lines
installed in the aggregate nationwide;
(2) to improve such carriers' flexibility to undertake such
initiatives; and
(3) to allow such carriers to redirect resources from
paying the costs of such regulatory burdens to increasing
investment in such initiatives.
SEC. 3. DEFINITION.
Section 3 of the Communications Act of 1934 (47 U.S.C. 153)
is amended--
(1) by redesignating paragraphs (51) and (52) as paragraphs
(52) and (53), respectively; and
(2) by inserting after paragraph (50) the following:
``(51) Two percent carrier.--The term `two percent carrier'
means an incumbent local exchange carrier within the meaning
of section 251(h) whose access lines, when aggregated with
the access lines of any local exchange carrier that such
incumbent local exchange carrier directly or indirectly
controls, is controlled by, or is under common control with,
are fewer than two percent of the Nation's subscriber lines
installed in the aggregate nationwide.''.
SEC. 4. REGULATORY RELIEF FOR TWO PERCENT CARRIERS.
Title II of the Communications Act of 1934 is amended by
adding at the end thereof a new part IV as follows:
``PART IV--PROVISIONS CONCERNING TWO PERCENT CARRIERS
``SEC. 281. REDUCED REGULATORY REQUIREMENTS FOR TWO PERCENT
CARRIERS.
``(a) Commission To Take Into Account Differences.--In
adopting rules that apply to incumbent local exchange
carriers (within the meaning of section 251(h)), the
Commission shall separately evaluate the burden that any
proposed regulatory, compliance, or reporting requirements
would have on two percent carriers.
``(b) Effect of Commission's Failure To Take Into Account
Differences.--If the Commission adopts a rule that applies to
incumbent local exchange carriers and fails to separately
evaluate the burden that any proposed regulatory, compliance,
or reporting requirement would have on two percent carriers,
the Commission shall not enforce the rule against two percent
carriers unless and until the Commission performs such
separate evaluation.
``(c) Additional Review Not Required.--Nothing in this
section shall be construed to require the Commission to
conduct a separate evaluation under subsection (a) if the
rules adopted do not apply to two percent carriers, or such
carriers are exempted from such rules.
``(d) Savings Clause.--Nothing in this section shall be
construed to prohibit any size-based differentiation among
carriers mandated by this Act, chapter 6 of title 5, United
States Code, the Commission's rules, or any other
provision of law.
``(e) Effective Date.--The provisions of this section shall
apply with respect to any rule adopted on or after the date
of enactment of this section.
``SEC. 282. LIMITATION OF REPORTING REQUIREMENTS.
``(a) Limitation.--The Commission shall not require a two
percent carrier--
``(1) to file cost allocation manuals or to have such
manuals audited or attested, but a two percent carrier that
qualifies as a class A carrier shall annually certify to the
Commission that the two percent carrier's cost allocation
complies with the rules of the Commission; or
``(2) to file Automated Reporting and Management
Information Systems (ARMIS) reports, except for purposes of
section 224.
``(b) Preservation of Authority.--Except as provided in
subsection (a), nothing in this Act limits the authority of
the Commission to obtain access to information under sections
211, 213, 215, 218, and 220 with respect to two percent
carriers.
``SEC. 283. INTEGRATED OPERATION OF TWO PERCENT CARRIERS.
``The Commission shall not require any two percent carrier
to establish or maintain a separate affiliate to provide any
common carrier or noncommon carrier services, including local
and interexchange services, commercial mobile radio services,
advanced services (within the meaning of section 706 of the
Telecommunications Act of 1996), paging, Internet,
information services or other enhanced services, or other
services. The Commission shall not require any two percent
carrier and its affiliates to maintain separate officers,
directors, or other personnel, network facilities, buildings,
research and development departments, books of account,
financing, marketing, provisioning, or other operations.
``SEC. 284. PARTICIPATION IN TARIFF POOLS AND PRICE CAP
REGULATION.
``(a) NECA Pool.--The participation or withdrawal from
participation by a two percent carrier of one or more study
areas in the common line tariff administered and
[[Page S8930]]
filed by the National Exchange Carrier Association or any
successor tariff or administrator shall not obligate such
carrier to participate or withdraw from participation in such
tariff for any other study area. The Commission may require a
two percent carrier to give 60 days notice of its intent to
participate or withdraw from participation in such common
line tariff with respect to a study area. Except as permitted
by section 310(f)(3), a two percent carrier's election under
this subsection shall be binding for one year from the date
of the election.
``(b) Price Cap Regulation.--A two percent carrier may
elect to be regulated by the Commission under price cap rate
regulation, or elect to withdraw from such regulation, for
one or more of its study areas. The Commission shall not
require a carrier making an election under this subsection
with respect to any study area or areas to make the same
election for any other study area. Except as permitted by
section 310(f)(3), a two percent carrier's election under
this subsection shall be binding for one year from the date
of the election.
``SEC. 285. DEPLOYMENT OF NEW TELECOMMUNICATIONS SERVICES BY
TWO PERCENT COMPANIES.
``(a) One-Day Notice of Deployment.--The Commission shall
permit two percent carriers to introduce new interstate
telecommunications services by filing a tariff on one day's
notice showing the charges, classifications, regulations, and
practices therefor, without obtaining a waiver, or make any
other showing before the Commission in advance of the tariff
filing. The Commission shall not have authority to approve or
disapprove the rate structure for such services shown in such
tariff.
``(b) Definition.--For purposes of subsection (a), the term
`new interstate telecommunications service' means a class or
subclass of service not previously offered by the two percent
carrier that enlarges the range of service options available
to ratepayers of such carrier.
``SEC. 286. ENTRY OF COMPETING CARRIER.
``(a) Pricing Flexibility.--Notwithstanding any other
provision of this Act, any two percent carrier shall be
permitted to de-average its interstate switched or special
access rates, file tariffs on one day's notice, and file
contract-based tariffs for interstate switched or special
access services immediately upon certifying to the Commission
that a telecommunications carrier unaffiliated with such
carrier is engaged in facilities-based entry within such
carrier's service area. A two percent carrier subject to
rate-of-return regulation with respect to an interstate
switched or special access service, for which pricing
flexibility has been exercised pursuant to this subsection,
shall compute its interstate rate of return based on the
nondiscounted rate for such service.
``(b) Streamlined Pricing Regulation.--Notwithstanding any
other provision of this Act, upon receipt by the Commission
of a certification by a two percent carrier that--
``(1) a local exchange carrier, or its affiliate, or
``(2) a local exchange carrier operated by, or owned in
whole or part by, a governmental authority,
is engaged in facilities-based entry within the two percent
carrier's service area, the Commission shall regulate the two
percent carrier as non-dominant and shall not require the
tariffing of the interstate service offerings of the two
percent carrier.
``(c) Participation in Exchange Carrier Association
Tariff.--A two percent carrier that meets the requirements of
subsection (a) or (b) of this section with respect to one or
more study areas shall be permitted to participate in the
common line tariff administered and filed by the National
Exchange Carrier Association or any successor tariff or
administrator, by electing to include one or more of its
study areas in such tariff.
``(d) Definitions.--For purposes of this section:
``(1) Facilities-based entry.--The term `facilities-based
entry' means, within the service area of a two percent
carrier--
``(A) the provision or procurement of local telephone
exchange switching or its equivalent; and
``(B) the provision of telephone exchange service to at
least one unaffiliated customer.
``(2) Contract-based tariff.--The term `contract-based
tariff' shall mean a tariff based on a service contract
entered into between a two percent carrier and one or more
customers of such carrier. Such tariff shall include--
``(A) the term of the contract, including any renewal
options;
``(B) a brief description of each of the services provided
under the contract;
``(C) minimum volume commitments for each service, if any;
``(D) the contract price for each service or services at
the volume levels committed to by the customer or customers;
``(E) a brief description of any volume discounts built
into the contract rate structure; and
``(F) a general description of any other classifications,
practices, and regulations affecting the contract rate.
``(3) Service area.--The term `service area' has the same
meaning as in section 214(e)(5).
``SEC. 287. SAVINGS PROVISIONS.
``(a) Commission Authority.--Nothing in this part shall be
construed to restrict the authority of the Commission under
sections 201 through 208.
``(b) Rural Telephone Company Rights.--Nothing in this part
shall be construed to diminish the rights of rural telephone
companies otherwise accorded by this Act, or the rules,
policies, procedures, guidelines, and standards of the
Commission as of the date of enactment of this section.
``(c) State Authority.--Nothing in this Part shall be
construed to limit or affect any authority (as of August 1,
2001) of the States over charges, classifications, practices,
services, facilities, or regulations for or in connection
with intrastate communication service by wire or radio of any
carrier.''.
SEC. 5. LIMITATION ON MERGER REVIEW.
(a) Amendment.--Section 310 of the Communications Act of
1934 (47 U.S.C. 310) is amended by adding at the end the
following:
``(f) Deadline for Making Public Interest Determination.--
``(1) Time limit.--In connection with any merger between
two percent carriers, or the acquisition, directly or
indirectly, by a two percent carrier or its affiliate of
securities or assets of another carrier or its affiliate, if
the merged or acquiring carrier remains a two percent carrier
after the merger or acquisition, the Commission shall make
any determinations required by this section and section 214,
and shall rule on any petition for waiver of the Commission's
rules or other request related to such determinations, not
later than 60 days after the date an application with respect
to such merger or acquisition is submitted to the Commission.
``(2) Approval absent action.--If the Commission does not
approve or deny an application as described in paragraph (1)
by the end of the period specified, the application shall be
deemed approved on the day after the end of such period. Any
such application deemed approved under this subsection shall
be deemed approved without conditions.
``(3) Election permitted.--The Commission shall permit a
two percent carrier to make an election pursuant to section
284 with respect to any local exchange facilities acquired as
a result of a merger or acquisition that is subject to the
review deadline established in paragraph (1) of this
subsection.''.
(b) Effective Date.--The provisions of this section shall
apply with respect to any application that is submitted to
the Commission on or after the date of enactment of this Act.
Applications pending with the Commission on the date of
enactment of this Act shall be subject to the requirements of
this section as if they had been filed with the Commission on
the date of enactment of this Act.
SEC. 6. TIME LIMITS FOR ACTION ON PETITIONS FOR
RECONSIDERATION OR WAIVER.
(a) Amendment.--Section 405 of the Communications Act of
1934 (47 U.S.C. 405) is amended by adding to the end the
following:
``(c) Expedited Action Required.--
``(1) Time limit.--Within 90 days after receiving from a
two percent carrier a petition for reconsideration or other
review filed under this section or a petition for waiver of a
rule, policy, or other Commission requirement, the Commission
shall issue an order granting or denying such petition. If
the Commission fails to act on a petition for waiver subject
to the requirements of this section within this 90-day
period, the relief sought in such petition shall be deemed
granted. If the Commission fails to act on a petition for
reconsideration or other review subject to the requirements
of this section within such 90-day period, the Commission's
enforcement of any rule the reconsideration or other review
of which was specifically sought by the petitioning party
shall be stayed with respect to that party until the
Commission issues an order granting or denying such petition.
``(2) Finality of action.--Any order issued under paragraph
(1), or any grant of a petition for waiver that is deemed to
occur as a result of the Commission's failure to act under
paragraph (1), shall be a final order and may be appealed.''.
(b) Effective Date.--The provisions of this section shall
apply with respect to any petition for reconsideration or
other review or petition for waiver that is submitted to the
Commission on or after the date of enactment of this Act.
Petitions for reconsideration or petitions for waiver pending
with the Commission on the date of enactment of this Act
shall be subject to the requirements of this section as if
they had been filed on the date of enactment of this Act.
SEC. 7. NATIONAL SECURITY AND LAW ENFORCEMENT EXCEPTIONS.
Notwithstanding sections 310 and 405 of the Communications
Act of 1934 (47 U.S.C. 310 and 405), the 60-day time period
under section 310(f)(1) of that Act, as added by section 5 of
this Act, and the 90-day time period under section 405(c)(1)
of that Act, as added by section 6 of this Act, shall not
apply to a petition or application under section 310 or 405
if an Executive Branch agency with cognizance over national
security, law enforcement, or public safety matters,
including the Department of Defense, Department of Justice,
and the Federal Bureau of Investigation, submits a written
filing to the Federal Communications Commission advising the
Commission that the petition or application may present
national security, law enforcement, or public safety concerns
that may not be resolved within the 60-day or 90-day time
period, respectively.
______
By Mr. VOINOVICH (for himself, Mr. Inhofe, Mr. Smith of New
Hampshire, and Mr. Crapo):
[[Page S8931]]
S. 1360. To reauthorize the Price-Anderson provisions of the Atomic
Energy Act of 1954; to the Committee on Environment and Public Works.
Mr. VOINOVICH. Mr. President, I rise today to introduce legislation
to reauthorize the Price Anderson Act, which provides the insurance
program for our Nation's commercial nuclear reactor fleet. In 1954,
Congress passed the Atomic Energy Act which ended the government
monopoly over possession, use, and manufacturing of ``special nuclear
material''. While the Act allowed the private sector access to the
nuclear market, due to concerns over liability, the private sector was
extremely hesitant to invest in the new market.
Due to these liability concerns, Congress passed the Price-Anderson
Act in 1957, the Act was reauthorized on three occasions, most recently
in 1988. The Act is due to be reauthorized in 2002. In 1998 the NRC
issued their report to Congress called ``The Price Anderson Act--
Crossing the Bridge to the Next Century: A Report to Congress.'' In
that report the NRC recommended renewal of the Price Anderson Act
because the Act provides a valuable public benefit by establishing a
system for prompt and equitable steelement of public liability claims
resulting from a nuclear accident.
While the report originally suggested that consideration be given to
doubling the maximum annual retrospective premium installment from each
power reactor license, the NRC has reconsidered this suggestion and now
recommends that original premium level be retained. They expressed this
view in a letter to me, as the Chairman of the Nuclear Safety
Subcommittee on May 11th of this year.
The reason for the change is that in 1998 the NRC had projected that
many of the existing commercial reactors would not file for license
renewal. The drop in the number of reactors would cause a corresponding
drop in the contributions to the fund. There is now heightened interest
in extending the operating license of most of the commercial reactors.
Therefore an increase in the premium from each reactor is no longer
necessary. This has occurred because of the growing interest in nuclear
energy. Nuclear energy is a clean, emissions-free source of electricity
which currently provides almost twenty percent of our nation's energy
supply.
This legislation will help further the commercial application of
nuclear energy for electricity, as well as the growing number of
medical applications of nuclear medicine. Nuclear energy is vital to
supplying cost-efficient and environmentally sound power to the
American consumer. This legislation will continue to ensure the
availability of our commercial nuclear reactor program. I am joined in
introducing this legislation by the ranking members of the Senate
Environment and Public Works Committee, Senator Smith, and the Nuclear
Safety Subcommittee Senator Inhofe, as well as an important member of
the Subcommittee Senator Crapo.
______
By Mr. BENNETT:
S. 1361. A bill to amend the Central Utah Project Completion Act to
clarify the responsibilities of the Secretary of the Interior with
respect to the Central Utah Project, to redirect unexpended budget
authority for the Central Utah Project for wastewater treatment and
reuse and other purposes, to provide for prepayment of repayment
contracts for municipal and industrial water delivery facilities, and
to eliminate a deadline for such prepayment; to the Committee on Energy
and Natural Resources.
Mr. BENNETT. Mr. President, I rise today to introduce legislation
that would amend the Central Utah Project Completion Act, CUPCA, as
originally enacted in 1992. CUPCA re-authorized and provided funding
for the completion of the Central Utah Project, CUP, a project that
develops Utah's share of water from the Colorado River for use in ten
central Utah counties. The CUP was originally authorized in 1956 as
part of the Colorado River Storage Project Act and includes five units.
The Bureau of Reclamation began construction of this project in 1964.
However, in 1992 CUPCA conferred CUP planning and construction
responsibilities to the Central Utah Water Conservancy District, which
has cultivated an excellent working relationship with the Office of CUP
Completion in the Interior Department.
The legislation I am introducing would amend CUPCA to clarify the
relationship between the Department of the Interior and the CUP by
ensuring that the Secretary of the Interior continue to retain full
responsibility for the CUP after the completion of the project's
construction phase. It only makes sense that the decisions regarding
future operations and maintenance, contract negotiations, and program
oversight functions of the Interior Department are consistent with the
cooperative decisions made during the project's planning and
construction stages. As such, language is needed to clarify the
Secretary's further involvement.
Since 1992, numerous changes in the project have occurred to better
reflect contemporary water needs. Certain project features were
downsized or eliminated while other water management programs grew in
size. The 106th Congress, in an effort to address these changes,
approved a CUPCA amendment that allowed unused funding authorization
resulting from the redesign of the Bonneville Unit to be used ``to
acquire water and water rights for project purposes including in stream
flows, to complete project facilities authorized in this title and
title III, to implement water conservation measure . . .'' In light of
the continuing need to address the redesign replacement projects
originally designed in the sixties, my legislation would again extend
the unused authorization provision to all CUP units.
Finally, this legislation also extends a CUPCA provision that
authorizes the Secretary of the Interior to accept prepayment of parts
of the project's Municipal and Industrial repayment debt. The original
provision's expiration was to occur in 2002 for reasons relating to the
Federal Budget scoring process. This provision has enabled the Central
Utah Water Conservancy District to prepay over $138 million to the
federal treasury, while also avoiding unnecessary interest charges. The
legislation introduced today would remove the 2002 expiration provision
and extends the provision to allow the repayment of obligations
associated with projects relating to the Uinta Basin.
The water supplied by CUP's many water diversion projects is crucial
to the livelihoods of Utah's rural residents and to Utah's burgeoning
population. I believe that legislation will serve to better facilitate
the timely, economically responsible, and fiscally efficient completion
of the Central Utah Project.
______
By Mr. HUTCHINSON (for himself and Mr. Craig):
S. 1362. A bill to amend title XVIII of the Social Security Act and
title VII of the Public Health Service Act to expand medical residency
training programs in geriatrics, and for other purposes; to the
Committee on Finance.
Mr. HUTCHINSON. Mr. President, I am pleased today to be joined by my
colleague, Senator Craig, In introducing the Advancement of Geriatric
Education Act of 2001, or AGE Act is comprehensive legislation which
seeks to prepare physicians and other health care professionals to care
for our Nation's growing aging population.
It is a know fact that children cannot be treated like little adults
and prescribed the same medications in the same dosage amounts. For
this reason, we have pediatricians. But just as there are differences
between children and adults, so are there differences between middle
aged adults and seniors. Many people are unaware that aging individuals
often exhibit different symptoms than younger adults with the same
illness. For example, an older person who has a heart attack may not
experience excruciating chest pain, but rather, show signs of dizziness
and confusion. Similarly, older people often exhibit different
responses to medications than younger people.
The demographic reality is that there is an enormous segment of the
population which will soon be age 65 or older, and there is serious
doubt that the U.S. health system will be equipped to handle the
multiple needs and demand of an aging population. By 2030, it is
projected that one in five Americans will be over age 65.
Geriatricians are physicians who are experts in aging-related issues
and the
[[Page S8932]]
study of the aging process itself. They are specially trained to
prevent and manage the unique and often multiple health problems of
older adults. Geriatric training can provide health care professionals
with the skills and knowledge to recognize special characteristics of
older patients and distinguish between disease states and the normal
physiological changes associated with aging. Our health care system
must increase its focus in this vital area.
Today, there are 9,000 practicing, certified geriatricians in the
United States, far short of the 20,000 geriatricians estimated to be
necessary to meet the needs of the current aging population. By the
year 2030, it is estimated that at least 36,000 geriatricians will be
needed to manage the complex health and social needs of the elderly.
These figures, as astounding as they sound, say nothing of the
geriatrics training needed for all health care professionals who are
facing such an increasingly older patient population.
Unfortunately, out of 125 medical schools in our country, only 3 have
actual Departments of Geriatrics, including the University of Arkansas
for Medical Sciences. Moreover, only 14 schools include geriatrics as a
required course, and one-third of medical schools do not even offer
geriatrics as a separate course elective.
Congress has taken some positive steps to increase our focus on
geriatrics, including the establishment of Geriatric Education Centers
and Geriatric Training Programs, which seek to train all health
professionals in the area of geriatrics. Congress has also established
the Geriatric Academic Career Award program, which promotes the
development of academic geriatricians.
It is clear to me, however, that more steps need to be taken, which
is why I have introduced the AGE Act today. The AGE Act encourages more
physicians to specialize in the area of geriatrics and enhances the
current federal programs relating to geriatrics under the Public Health
Service Act. The AGE Act is supported by the American Geriatrics
Society, the International Longevity Center, and the American
Association of Geriatric Psychiatry. I ask unanimous consent that a
summary of the AGE Act and the text of the bill be printed in the
Record.
There being no objection, the material ordered to be printed in the
Record, as follows:
S. 1362
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Advancement of Geriatric Education Act of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Disregard of certain geriatric residents and fellows against
graduate medical education limitations.
Sec. 3. Extension of eligibility periods for geriatric graduate medical
education.
Sec. 4. Study and report on improvement of graduate medical education.
Sec. 5. Improved funding for education and training relating to
geriatrics.
SEC. 2. DISREGARD OF CERTAIN GERIATRIC RESIDENTS AND FELLOWS
AGAINST GRADUATE MEDICAL EDUCATION LIMITATIONS.
(a) Direct GME.--Section 1886(h)(4)(F) of the Social
Security Act (42 U.S.C. 1395ww(h)(4)(F)) is amended by adding
at the end the following new clause:
``(iii) Increase in limitation for geriatric residencies
and fellowships.--For cost reporting periods beginning on or
after the date that is 6 months after the date of enactment
of the Advancement of Geriatric Education Act of 2001, in
applying the limitations regarding the total number of full-
time equivalent residents in the field of allopathic or
osteopathic medicine under clause (i) for a hospital, the
Secretary shall not take into account a maximum of 5
residents enrolled in a geriatric residency or fellowship
program approved by the Secretary for purposes of paragraph
(5)(A) to the extent that the hospital increases the number
of geriatric residents or fellows above the number of such
residents or fellows for the hospital's most recent cost
reporting period ending before the date that is 6 months
after the date of enactment of such Act.''.
(b) Indirect GME.--Section 1886(d)(5)(B) of the Social
Security Act (42 U.S.C. 1395ww(d)(5)(B)) is amended by adding
at the end the following new clause:
``(ix) Clause (iii) of subsection (h)(4)(F) shall apply to
clause (v) in the same manner and for the same period as such
clause (iii) applies to clause (i) of such subsection.''.
SEC. 3. EXTENSION OF ELIGIBILITY PERIODS FOR GERIATRIC
GRADUATE MEDICAL EDUCATION.
(a) Direct GME.--Section 1886(h)(5)(G) of the Social
Security Act (42 U.S.C. 1395ww(h)(5)(G)) is amended by adding
at the end the following new clause:
``(vi) Geriatric residency and fellowship programs.--In the
case of an individual enrolled in a geriatric residency or
fellowship program approved by the Secretary for purposes of
subparagraph (A), the period of board eligibility and the
initial residency period shall be the period of board
eligibility for the subspecialty involved, plus 1 year.''.
(b) Conforming Amendment.--Section 1886(h)(5)(F) of the
Social Security Act (42 U.S.C. 1395ww(h)(5)(F)) is amended by
striking ``subparagraph (G)(v)'' and inserting ``clauses (v)
and (vi) of subparagraph (G)''.
(c) Effective Date.--The amendments made by this section
shall apply to cost reporting periods beginning on or after
the date that is 6 months after the date of enactment of this
Act.
SEC. 4. STUDY AND REPORT ON IMPROVEMENT OF GRADUATE MEDICAL
EDUCATION.
(a) Study.--The Secretary of Health and Human Services
shall conduct a study to determine how to improve the
graduate medical education programs under subsections
(d)(5)(B) and (h) of section 1886 of the Social Security Act
(42 U.S.C. 1395ww) so that such programs prepare the
physician workforce to serve the aging population of the
United States. Such study shall include a determination of
whether the establishment of an initiative to encourage the
development of individuals as academic geriatricians would
improve such programs.
(b) Report.--Not later than the date that is 6 months after
the date of enactment of this Act, the Secretary of Health
and Human Services shall submit to Congress a report on the
study conducted under subsection (a) together with such
recommendations for legislative and administrative action as
the Secretary determines appropriate.
SEC. 5. IMPROVED FUNDING FOR EDUCATION AND TRAINING RELATING
TO GERIATRICS.
(a) Geriatric Faculty Fellowships.--Section of 753(c)(4) of
the Public Health Service Act (42 U.S.C. 294c(c)(4)) is
amended--
(1) in subparagraph (A), by striking ``$50,000 for fiscal
year 1998'' and inserting ``$75,000 for fiscal year 2002'';
and
(2) in subparagraph (B), by striking ``shall not exceed 5
years'' and inserting ``shall be 5 years''.
(b) Authorization of Appropriations.--Section 757 of the
Public Health Service Act (42 U.S.C. 294g) is amended--
(1) in subsection (a)--
(A) by striking ``In General.--There are authorized'' and
inserting ``Authorization.--
``(1) In general.--Except as provided in paragraph (2),
there are authorized''; and
(B) by adding at the end the following:
``(2) Education and training relating to geriatrics.--There
are authorized to be appropriated to carry out section 753
such sums as may be necessary for each of fiscal years 2002
through 2006.''; and
(2) in subsection (b)--
(A) in paragraph (1)--
(i) in subparagraph (B), by striking ``and'' at the end;
and
(ii) by striking subparagraph (C) and inserting the
following:
``(C) not less than $22,631,000 for awards of grants and
contracts under--
``(i) section 753 for fiscal years 1998 through 2001; and
``(ii) sections 754 and 755 for fiscal years 1998 through
2002; and
``(D) for awards of grants and contracts under section 753
after fiscal year 2001--
``(i) in 2002, not less than $20,000,000;
``(ii) in 2003, not less than $24,000,000;
``(iii) in 2004, not less than $28,000,000;
``(iv) in 2005, not less than $32,000,000; and
``(v) in 2006, not less than $36,000,000.'';
(B) in paragraph (2), by striking ``subparagraphs (A)
through (C)'' and inserting ``subparagraphs (A) through
(D)''; and
(C) in paragraph (3), by striking ``subparagraphs (A)
through (C) of paragraph (2)'' and inserting ``subparagraphs
(A) through (D) of paragraph (1)''.
(c) Effective Date.--The amendments made by this section
shall take effect on October 1, 2001.
____
Advancement of Geriatric Education (AGE) Act of 2001--Legislative
Summary
i. provides an exception to the cap on residents for geriatric
residents
The AGE Act amends the Medicare graduate medical education
(GME) resident cap imposed under BBA 97 to provide exceptions
for geriatric residents in approved training programs. The
1997 BBA instituted a per-hospital cap based on the number of
GME residency slots in existence on or before December 31,
1996. As geriatrics is a relatively new specialty, the cap
has resulted in either the elimination or reduction of
geriatric of geriatric training programs. This is because a
lower number of geriatric residents existed prior to December
31, 1996. The AGE Act provides for an exception from the cap
for up to 5 geriatric residents.
ii. requires medicare gme payment for the 2nd year of geriatric
fellowship training
Under current law, hospitals receive 100 percent GME
reimbursement for an individuals's initial residency period,
up to five years. The law also includes a geriatric exception
allowing programs training geriatric fellows to receive full
funding for an
[[Page S8933]]
additional period comprised of the first and second years of
fellowship training. Programs training non-geriatric fellows
receive 50 percent of GME funding for fellowship training. In
1998, the period of board eligibility for geriatrics was
decreased to one year, in an effort to encourage more
geriatrics specialists. However, this change was not intended
to reduce support for training of teachers and researchers in
geriatrics. A two-year fellowship remains the generally
accepted standard, and is generally required to become an
academic geriatrician. The AGE Act explicitly authorizes
Medicare GME payments for the second year of fellowship.
iii. directs the secretary of hhs to report to congress on ways to
improve the medicare programs to ready the physician workforce to serve
the aging population, including whether an initiative should be
established to develop academic geriatricians
It is estimated that the country currently has one-quarter
of the academic geriatricians necessary to train and educate
physicians in the area of geriatrics. Out of 125 medical
schools in our country, only 3 have actual Departments of
Geriatrics. Moreover, only 14 schools include geriatrics as a
requried course, and one third of medical schools do not even
offer geriatrics as a separate course elective. The AGE Act
requires the Secretary of HHS to examine ways to prepare the
physician workforce to serve the aging population, including
initiatives to develop academic geriatricians, and to report
to Congress within 6 months after the date of enactment.
iv. enhances and authorizes greater funding for the geriatric training
sections of the public health service act
Section 735, Title VII of the Public Health Service Act,
encompasses Geriatric Education Centers, which provide
geriatrics training to all health professionals (Arkansas has
a Geriatric Education Center program), a program to provide
geriatric training to dentists and behavioral and mental
health benefits, and the Geriatrics Academic Development
Award program, which creates junior faculty awards to
encourage the development of academic geriatricians. The AGE
Act increases the amount of the Geriatric Academic
Development Award from $50,000 to $75,000, and authorizes
greater funding for all three programs in Fiscal Years 2002
through 2006 ($20 million in Fiscal Year 2002, $24 million in
Fiscal Year 2003, $28 million in Fiscal Year 2004, $32
million in Fiscal Year 2005, and $36 million in Fiscal Year
2006).
______
By Mr. SMITH of New Hampshire (for himself, Mr. Gregg, Mr. Leahy,
and Mr. Jeffords):
S. 1363. A bill to authorize the Secretary of the Interior to provide
assistance in implementing cultural heritage, conservation, and
recreational activities in the Connecticut River watershed of the
States of New Hampshire and Vermont; to the Committee on Energy and
Natural Resources.
Mr. SMITH of New Hampshire. Mr. President, I am pleased to introduce
the Upper Connecticut River Partnership Act of 2001. This legislation
is a truly locally-led initiative. I believe it will result in great
environmental benefits for the Connecticut River.
The Connecticut River forms the border to New Hampshire and Vermont
and provides for a great deal of recreational and tourism opportunities
for residents of both States. This legislation takes a major step
forward in making sure this River continues to thrive as a treasured
resource.
To understand just how significant this legislation is, I would like
to share with my colleagues some history about the Connecticut River
program. In 1987-88, New Hampshire and Vermont each created a
commission to address environmental issues facing the Connecticut river
valley. The commissions were established to coordinate water quality
and various other environmental efforts along the Connecticut river
valley. The two commissions came together in 1990 to form the
Connecticut River Joint Commission. The Joint Commission has no
regulatory authority, but carries out cooperative education and
advisory activities.
To further the local influence of the Commission, the Connecticut
River Joint Commission established five advisory bi-state local river
subcommittees comprised of representatives nominated by the governing
body of their municipalities. These advisory groups developed a
Connecticut River Corridor Management Plan. A major portion of the plan
focuses on channeling federal funds to local communities to implement
water quality programs, nonpoint source pollution controls and other
environmental projects. Over the last ten years, the Connecticut River
Joint Commission has fostered widespread participation and laid a
strong foundation of community and citizen involvement.
As a Senator from New Hampshire and the ranking Republican of the
Environment and Public Works Committee, as well as someone who enjoys
the beauty of the Connecticut River, I am proud to be the principal
author and cosponsor of this locally led, voluntary effort that
accomplishes real environmental progress. Too often we depend on
bureaucratic federal regulatory programs to accomplish environmental
success. This bill takes a different approach and one that I bet will
achieve greater results on the ground. I hope that other communities
and neighboring states will look at this model as an example of how to
develop and implement true voluntary, on the ground, locally-led
environmental programs.
I want to thank my colleague from New Hampshire, Senator Gregg, and
the two distinguished Senators of Vermont, Senators Leahy and Jeffords,
for joining me as original cosponsors to this legislation. I look
forward to working with them as we move this important legislation
through the Senate.
______
By Mr. HOLLINGS (for himself, Mr. Inouye, and Mr. Stevens):
S. 1364. A bill to ensure full and expeditious enforcement of the
provisions of the Communications Act of 1934 that seek to bring about
the competition in local telecommunications markets, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
Mr. HOLLINGS. Mr. President, I rise to introduce, S. 1364, the
Telecommunications competition Enforcement Act of 2001.
I introduce this bill to affirm and enforce the competitive tenants
of the Telecommunications Act of 1996. Some want to deregulate the Bell
companies and mistakenly assert that deregulation will lead to
increased deployment of broadband services. I disagree. The evidence
simply does not support such a conclusion. It is only through
strengthening and enforcing the competitive provisions of the 1996 Act
that local phone markets will become open to competition and the
delivery of advanced services will be enhanced.
Congress in conjunction with members of the industry worked to pass
the 1996 Act. I should note that at that time, everyone realized the
impending innovations in technology and the potential for new and
advanced services. These technological changes were expected to allow
phone companies to provide high speed data and video services over
their facilities, while also allowing cable companies to provide high
speed data and phone services over their facilities. It was
unquestionably understood by everyone involved that competition would
be the driving force for incumbent companies to provide new services.
And was this the right way to proceed? Of course it was. A wall street
analysis with Montgomery Securities stated that ``RBOCs have finally
begun to feel the competitive pressure from both CLECs and cable modem
providers and are now planning to . . . accelerate/expand deployment of
ADSL in order to counter the threat.'' Another wall street analyst with
Prudential Securities noted that with respect to RBOC deployment of
broadband service an ``important motivating factor is the threat of
competition [and] [o]ther players are taking dead aim at the high-speed
Internet access market.''
Let us not forget the context in which the 1996 Act was passed. When
Judge Greene in the 1990s broke-up Ma Bell, the agreement limited the
service areas that the Regional Bell Operating Companies could enter.
Judge Greene understood the significant market power of the Bell
companies who had no competitors in their local markets and had
complete access to the customer. Clearly, under such conditions, if
Bells were allowed to enter new markets, they could quickly decimate
their competitors by leveraging their monopolies in their local
markets. Consequently, in an effort to protect competition in other
areas, Judge Greene restricted their access to other markets. For these
reasons, the Bell companies came to Congress for a solution that would
eliminate their service restrictions. After many years of hard work,
numerous hearings, and tons of analyses, Congress in an agreement
[[Page S8934]]
with all the relevant parties including the Bells, long distance
service providers, cable companies, and consumer organizations put
together a framework that met the needs and requests of all involved
parties and one that gave the Bells what they most coveted, entrance
into all markets. In doing so, however, Congress also put in place
provisions to preserve competition.
Under these conditions, the Bell companies worked with Congress to
draft and pass the 1996 Act, and when the Act was finally passed, the
Bell companies stated that they would quickly and aggressively open
their local markets to competition. On March 5, 1996, Bell South-
Alabama President, Neal Travis, stated that ``We are going full speed
ahead . . . and within a year or so we can offer [long distance] to our
residential and business wireline customers.'' Ameritech's chief
executive officer, Richard Notebaert on February 1, 1996, indicated his
support of the 1996 Act by stating that, ``[T]his bill will rank as one
of the most important and far-reaching pieces of federal legislation
passed this decade. . . . It offers a comprehensive communications
policy, solidly grounded in the principles of the competitive
marketplace. It's truly a framework for the information age.'' On
February 8, 1996, US West's President of Long Distance, Richard
Coleman, predicted that USWest would meet the 14 point checklist in a
majority of its states within 12-18 months. Unfortunately, the Bell
companies have not kept their promises. Instead of getting down to the
business of competing, the Bell companies chose a strategy of delay. In
doing so, they have litigated, they have complained, and they have
combined. In other words they have done everything except work to
ensure competition in local markets.
When the Bells first filed applications with the Federal
Communications Commission, FCC, to enter the long distance market,
contrary to their assertions, the FCC and the Department of Justice,
DOJ, found that the local markets were not open to competition, and on
that basis denied the companies entry into the long distance market.
Once the Bells realized that they were not going to get into the long
distance market before complying with the 1996 Act, they began a
strategy of litigation which had two effects: 1. to delay competition
into their local markets and 2. to hold on to their monopoly structure
as they entered new markets in order to demolish their competitors.
They appealed a series of the FCC's decisions to the courts and
challenged the constitutionality of the 1996 Act even taking the case
to the Supreme Court.
Having lost in the courts, the Bells have now returned to Congress
complaining about the 1996 Act, the very Act that they had previously
championed. Many of the Bell companies have been meeting with Senators
and Representatives, often accompanied by the same lawyers who helped
write the 1996 Act. But this time their message is different. Instead
of embracing competition, the once laudable goal they had proclaimed to
be seeking, they now want to change the rules of the game and move in
the opposite direction. Specifically, they now want to offer lucrative
high-speed data services to long distance customers without first
opening their local markets to competition, and they want to block
their competitors from using their networks to provide high speed data
service. As a result of these efforts, the Bells have successfully
convinced some members of Congress to introduce bills that in essence
allow them to offer such service while protecting the Bells against
competition and slowing the delivery of affordable advanced service to
consumers by gutting the 1996 Act.
Bell companies claim that because no one contemplated the growth of
data services that they should be permitted to continue their hold on
the local customer as they provide broadband services. To state it
plainly, they are wrong. The technology to provide broadband data
services over the Bell network has been around since the early 1980s,
but the Bells were slow to deploy service until competition prompted
them to do so. Furthermore, recognizing the great potential of
broadband services, Richard McCormick, then CEO and Chairman of USWest,
in 1994 testifying before the Senate Commerce Committee stated the
following:
I want to touch briefly on USWest's business plan. We have
embarked on an aggressive program both within our 14-state
region and outside to deploy broadband. We want to be the
leader in providing interactive, that is, two-way multimedia
services, voice, data, video.
In addition to the Bells realizing the importance of broadband
service, Congress recognized the importance of broadband services when
it passed the 1996 Act and included section 706 which is dedicated to
promoting the development and deployment of advanced services. To quote
the Act, ``advanced telecommunications capability'' is defined as
``high-speed switched, broadband telecommunications capability that
enables users to originate and receive high-quality voice, data,
graphics, and video telecommunications using any technology.'' Also a
search of the legislative debate on the 1996 Act reveals that the word
``Internet'' appears 273 times. Even the preamble to the 1996 Act
refers to ``advanced telecommunications and information technologies
and services.'' With this evidence before it, the FCC also concluded
that the competitive provisions of the 1996 Act included high-speed,
advanced data and voice services.
Today, all Bell companies are providing DSL service to customers. In
fact, in October of 1999, SBC announced it would spend $6 billion over
3 years on ``project Pronto'' which is the company's initiative to
become the largest single provider of advanced broadband services in
America. And on that point, I certainly commend SBC on its efforts.
Through 2000, the four Bell companies invested 3.3. billion in DSL
deployment and are expected to spend $10.3 billion through 2003. This
investment is expected to payoff as earnings from their DSL investments
are expected to be positive by late 2002 as market penetration hits 10
percent. By the end of the first quarter of this year, SBC and
BellSouth reached about 50 percent of their customer base while Verizon
reached abut 42 percent with DSL service offerings.
Additionally, reports indicate that broadband service is being
effectively deployed. In an August 2000 report, the FCC concluded that
overall, broadband service is being deployed on a reasonable and timely
basis. It also found that there has been ample national deployment of
backbone and other fiber facilities that provide backbone
functionality. In October of 2000, the FCC issued another report in
which it determined that high speed lines connecting homes and small
businesses to the Internet increased by 57 percent during the first
half of 2000. These developments effectively demonstrate why there is
no justification for further deregulation of the Bells at least not
until competition in the local markets is acheived.
A major issue in this debate is how to serve rural and underserved
ares. However, there it is no demonstrated commitment by the Bells to
serve the rural markets. In fact, there behavior would lead you to the
opposite conclusion. Qwest/USWest has sold nearly 600 smaller exchanges
representing about 500,000 access lines and GTE has sold $1.6 milion
access lines. Joe Nacchio, Chief Executive Officer of Qwest stated, ``I
would have not qualms selling seeral million access lines if [I] could
find the real deal.'' He also noted that ``we have about 17.5 million
access line--we really like 11 [million].''
While expending a great deal of resources litigating and complaining,
Bell companies also have expended a fair amount of their energies in
another area, that is merging and combining. In August of 1997, Verizon
acquired NYNEX and in June of 2000 acquired GTE. First, SBC acquired
Pac Bell, and in October of 1999, acquired Ameritech. The combined
company now controls one-third of all access lines in the United
States. In March of 2000, Qwest acquired USWest. At the same time, Bell
Atlantic acquired Vodafone. In September of 2000, Bell-South Wireless
and SBC Wireless entered into a joint venture, Cingular. Yet the local
phone markets remain largely closed to competition.
Even though there are many companies working to build a business in
the local market, the Bells have met the 271 checklist in only six
States, New York, Texas, Oklahoma, Kansas, Massachusetts, and
Connecticut. Undoubtedly, if they cannot obtain real access
[[Page S8935]]
to the local phone markets, competitive companies will not be able to
make a go of their businesses. My grave concern is that they will not
be able to survive the Bell strategy of delay. Today, CLECs are
struggling to survive. Of the 300 CLECs that began providing service
since 1996, several have declared bankruptcy or are on the verge of
failing and several others have scaled back their buildout plans. CLECs
are faced with a significant downturn in the marketplace, tremendous
difficulty in raising capital, and local markets that remain largely
closed to competition. From the standpoint of capital, CLECs are
particularly sensitive to the financial market since the vast majority
of them are not profitable and rely on the capital markets for funding.
Relying on the marketplace, CLECs have raised and spent $56 billion in
their attempts to compete in the local market. Of the publicly traded
CLECs in 2000, only 4 CLECs made a profit. Additionally, as a result of
the market downturn, the market capitalization of CLECs fell from a
high of $86.4 billion in 1999 to $32.1 billion in 2000.
In Congress, we hear about the continued problems faced by
competitive carriers trying to obtain access to the Bell network.
Between December 1999 and April 2001, both the FCC and state regulators
have imposed fines on several Bell companies for violations of their
market opening and service quality requirements and other rules. For
BellSouth, these fines totaled $804,750, for Qwest, $78.6 million, for
SBC, $175 million, and for Verizon, $233 million. However, while these
fines may be substantial to most businesses, many in the industry
believe that they simply represent the cost of doing business for the
Bell companies which over the past year had annual revenues in the
range of tens of billions of dollars. Specifically, BellSouth's total
revenues were $25.6 billion, Qwest, $18.3 billion, SBC, $50.1 billion,
and Verizon, $66.4 billion. Chairman Powell has stated that in order to
make fines a more effective tool, Congress should increase the FCC's
current fine authority against a common carrier for a single continuing
violation from $1.2 million to at least $10 million and extend the
statute of limitations for violations which currently stands at 1 year.
In order to get local competition going, the Pennsylvania PUC
mandated the functional separation of the retail and wholesale
functions of Verizon. Petitions have been filed to impose structural
separation in, Alabama, Florida, Georgia, Indiana, Kentucky, Louisiana,
Mississippi, New Jersey, North Carolina, South Carolina, Tennessee, and
Virginia. Legislation has also been introduced in the State
legislatures of Maryland, Michigan, Minnesota, and New Jersey on the
issue of structural separation. In September of last year, Chairpersons
of the Commissions in Illinois, Indiana, Michigan, Ohio, and Wisconsin,
issued a joint statement asserting that although the Commissions had
taken repeated and sustained actions over the past months to address
operating deficiencies with respect to SBC-Ameritech, CLEC customers
had experienced a marked decline in service quality in purchasing
network elements from SBC-Ameritech.
In addition to these actions by regulators, the courts also have
taken action. In California in 1997, Caltech International Telecom
Corporation sued SBC-Pacific Bell claiming that SBC was violating
antitrust laws by acting anticompetitively and blocking competitors
from their local phone market. Last year, a Federal district court
ruled in favor of Caltech. Covad has sued SBC, Verizon, and BellSouth
and already has obtained a $24 million arbitration ruling against SBC.
Consumers have filed suit in the Superior Court of D.C. alleging that
Verizon signed up over 3,000 new customers per day knowing that the
company would be unable to provide high-speed service as promised and
that its customers would experience significant disruptions and
significant delays in obtaining technical support.
Regrettably, as Bells seek to block their competitors from entering
their markets, many consumers are suffering through poor quality of
Bell service. In New York, the Communications Workers of America issued
a service quality report in which it stated that ``Verizon has
systematically misled state regulators and the public by falsifying
service quality data submitted to the PSC'' and ``60 percent of workers
have been ordered to report troubles as fixed when problems remained.''
91 percent of field technicians surveyed reported that they were
dispatched on repairs of recent installations only to find that dial
tone had never been provided. Additionally, consumers with inside
wiring maintenance plans were not receiving the services for which they
were paying.
Concerned about competition and service quality, the FCC as well as
state Commissions have opposed legislative efforts to further
deregulate the Bell companies. In response to such measures, former
Chairman of the FCC, William Kennard, stated that such legislation
would only upset the balance struck by the 1996 Act, . . . [and] would
reverse the progress attained by the Act.'' Mr. Kennard went on to
state that ``the Telecommunications Act of 1996 is working. Because of
years of litigation, competition did not take hold as quickly as some
had hoped. The fact that it is now working, however, is undeniable.
Local markets are being opened, broadband services are being deployed,
and competition, including broadband competition is taking root.'' More
recently at a hearing before Congress in March, Chairman Powell of the
FCC counseled against reopening the Telecommunications Act of 1996. He
stated that ``any wholesale rewrite of the Telecom Act would be ill-
advised.'' The Former Assistant Secretary for Communications and
Information, Greg Rhode also stated that ``[d]espite the progress being
made under the procompetitive approach of the Telecommunications Act of
1996, some in Congress are talking about changing directions. Under the
veil of `de-regulation for data services' some are talking about
stopping the progress of competition . . . competition, structured
under the 1996 Act, is the model that will best deliver advanced
telecommunications and information services, such as high speed
Internet access. Walking away from the Act's pro-competitive provisions
at this point would be a serious mistake.'' Recognizing the importance
of the 1996 Act, the National Association of Regulatory Utilities
Commissioners adopted a resolution opposing federal legislation that
would deregulate the Bells and restrict the ability of State public
utility commissions from fulfilling their obligations to regulate core
telecommunications facilities that are used to provide both voice and
data services and to promote deployment of advanced telecommunications
capabilities.
Given the lack of competition in the local markets, the intransigent
behavior of the Bell companies, and concerns about poor service
quality, we are left with no choice but to adopt measures that will
ensure Bell compliance with the 1996 Act. This will have to include not
only fines, but also the separation of a Bell's retail operations
responsible for marketing services to consumers from its wholesale
operations responsible for operating and selling capacity on the
network. Bell companies continue to have substantial profit margins and
revenues in the billions of dollars. In contrast, Bear Stearns has
stated that it expects half of the CLECs to disappear because of
bankruptcy and consolidation. Unquestionably, I do anticipate that
competition will weed out poor competitors. However, it does not serve
consumers well for competitors to be weeded out because monopolies are
not playing fair.
I strongly believe that the power that the Bell companies have
wielded to block their competitors from the local markets must be
curbed. That's why I rise to introduce legislation today. Under my bill
within one year after passage of the legislation, a Bell company is
required to provide retail service through a separate division. If a
Bell company has to resell or provide portions of its network to its
division on the same terms and conditions that it provides to its
competitors, then it will quickly and affordably make its network
available to competitors.
Requiring a company to separate functions or divest property is not a
novel concept. In 1980, the court decided that the only way to
introduced competition into the long distance market was to require Ma
Bell to divest the Baby Bells. This has worked well and now the long
distance market is competitive. More recently, the Pennsylvania PSC has
required Verizon
[[Page S8936]]
to separate its retail operations from its wholesale operations. These
decisions are all based on concerns about the ability of a company to
distort competition because the company has significant market power.
Also, my bill clarifies that a carrier may bring an action against a
Bell company to comply with the competition provisions of the 1996 Act
at the FCC or at a State commission, and has the option of entering an
alternative dispute resolution, ADR, process to enforce an
interconnection agreement. The FCC is required to resolve such a
complaint in 90 days and issue an interim order to correct the dispute
within 30 days upon a proper showing by the carrier bringing the
dispute.
My bill requires the FCC to impose a penalty of $10 million for each
violation and $2 million for each day of each violation. The FCC can
treble the damages if the Bell company repeatedly violates competitive
provisions of the 1996 Act. I have chosen to include hefty
fines, because the fines at the FCC are too small to have any real
effect. I am also struck by the fact that for the Bells, fines seem to
be just a cost of doing business and not a punishment that deters or
positively affects their behavior. As Chairman Powell has stated, the
FCC's ``fines are trivial and the cost of doing business to many of
these companies.'' My bill would also require the FCC to establish
performance guidelines detailing what Bell companies must do in order
to allow CLEC's to interconnect with the Bell network.
Today, our communications network remains the envy of the world and
the development of innovative advanced services is accelerating
rapidly. Last year in a discussion about the lead America has over
Europe with respect to the technology revolution, Thomas Middlehof,
chief executive of Bertlemann, which is Europe's largest media
conglomerate stated that ``Europe just doesn't get the message . . .
[g]overnments are still trying to protect the old industrial
structure.'' The article also noted that ``many [European] leaders now
acknowledge a basic policy failure of the past decade [was] subsidizing
dying industries.'' With that said, it is unfortunate that the rollout
of local and broadband services on a competitive basis to all Americans
is being thwarted by the failure of Bell companies to open their
markets to competition. These same monopolists told us their markets
would be open years ago. This legislation seeks to hold them to their
word.
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. 1364
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 ``Telecommunications Fair
Competition Enforcement Act of 2001''.
SEC. 2. FINDINGS.
The Congress finds:
(1) The Telecommunications Act of 1996 put in place the
proper framework to achieve competition in local
telecommunications markets.
(2) The Telecommunications Act of 1996 recognized that
local exchange facilities are essential facilities and
required that all incumbent local exchange carriers open
their markets to competition by interconnecting with and
providing network access to new entrants, a process to be
overseen by Federal and State regulators.
(3) To increase the incentives of the Bell operating
companies to open their local networks to competition, the
Telecommunications Act of 1996 allows the Bell operating
companies to provide interLATA voice and data services in
their service region only after opening their local networks
to competition.
(4) While some progress has been made in opening local
telecommunications markets, the Federal Communications
Commission has determined that, 6 years after passage of the
Telecommunications Act of 1996, the Bell operating companies
have met the market opening requirements of that Act in only
5 States.
(5) It is apparent that the incumbent local exchange
carriers do not have adequate incentives to cooperate in this
process and that regulators have not exercised their
enforcement authority to require compliance.
(6) By improving mandatory penalties on Bell operating
companies and their affiliates that have not opened their
network to competition, there will be greater assurance that
local telecommunications markets will be opened more
expeditiously and, as a result, American consumers will
obtain the full benefits of competition.
(7) Competitive carriers continue to experience great
difficulty in gaining access to the Bell network, and, 5
years after enactment of the Telecommunications Act of 1996,
Bell operating companies continue to control over 92 percent
of all access lines nationwide.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to improve and strengthen the enforcement of the
Telecommunications Act of 1996, in order to ensure that local
telecommunications markets are opened more rapidly to full,
robust, and sustainable competition; and
(2) to provide an alternative dispute resolution process
for expeditious resolution of disputes concerning
interconnection agreements.
SEC. 4. ENFORCEMENT OF COMPETITION.
Title II of the Communications Act of 1934 (47 U.S.C. 201
et seq.) is amended by adding at the end the following:
``PART IV--ENFORCEMENT
``SEC. 291. SHARED JURISDICTION OVER CERTAIN DISPUTES.
``(a) Violations of Sections 251, 252, 271, and 272.--A
complaint under section 208 alleging that a specific act or
practice or failure to act, of a Bell operating company or
its affiliate, constitutes a violation of section 251, 252,
271, or 272 may be filed at the Commission or at a State
commission.
``(b) Enforcement of Interconnection Agreements.--An action
to enforce compliance by a Bell operating company or its
affiliate with an interconnection agreement entered into
under section 252 may be initiated at the Commission or at a
State Commission.
``(c) Initiating Party.--A complaint described in
subsection (a) or an enforcement action described in
subsection (b) may be brought by a telecommunications carrier
or by the Commission or a State commission on its own motion.
``SEC. 292. EXPEDITED CONSIDERATION OF INTERCONNECTION,
INTERLATA, AND SEPARATE AFFILIATE COMPLAINTS
AND ENFORCEMENT ACTIONS.
``(a) In General.--The Commission shall make a final
determination with respect to any complaint described in
section 291(a) or an enforcement action described in section
291(b) within 90 days after the date on which the complaint,
or the filing initiating the action, is received by the
Commission.
``(b) Interim Relief.--
``(1) Violations of act.--Within 30 days after a complaint
described in section 291(a) has been filed with the
Commission, the Commission shall issue an order to the Bell
operating company or its affiliate named in the complaint
directing it to cease the act or practice that constitutes
the alleged violation, or initiate an act or practice to
correct the alleged violation, pending a final determination
by the Commission if--
``(A) the complaint contains a prima facie showing that the
alleged violation occurred or is occurring;
``(B) the complaint describes with specificity the act or
practice, or failure to act, that constitutes the alleged
violation; and
``(C) it appears from specific facts shown by the complaint
or an accompanying affidavit that substantial injury, loss,
or damage will result to the complainant before the 90-day
period in subsection (a) expires if the order is not issued.
``(2) Interconnection agreements.--Within 30 days after an
enforcement action described in section 291(b) has been
initiated at the Commission by a telecommunications carrier,
the Commission shall issue an order to the Bell operating
company or its affiliate named in the action directing it to
cease the act or practice that constitutes the alleged
noncompliance with the interconnection agreement, or initiate
an act or practice to correct the alleged noncompliance,
pending a final determination by the Commission if--
``(A) the filing initiating the action contains a prima
facie showing that the alleged noncompliance occurred or is
occurring;
``(B) the filing describes with specificity the act or
practice, or failure to act, that constitutes the alleged
noncompliance; and
``(C) it appears from specific facts shown by the filing or
an accompanying affidavit that substantial injury, loss, or
damage will result to the telecommunications carrier before
the 90-day period in subsection (a) expires if the order is
not issued.
``(c) Burden of Proof.--In any proceeding under this part
with respect to a complaint described in section 291(a), or
an enforcement action described in section 291(b), by a
telecommunications carrier against a Bell operating company
or its affiliate, and upon a prima facie showing by a carrier
that there are reasonable grounds to believe that there is a
violation or noncompliance, the burden of proof shall be on
such Bell operating company or its affiliate to demonstrate
its compliance with the section allegedly violated, or with
the terms of such agreement, as the case may be.
``SEC. 293. ALTERNATIVE DISPUTE RESOLUTION OF INTERCONNECTION
COMPLAINTS.
``(a) Interconnection Agreements.--A party to an
interconnection agreement entered into under section 252 may
submit a dispute under the agreement to the alternative
dispute resolution process established by subsection (b). An
action brought under
[[Page S8937]]
this section may be brought in lieu of an action described in
section 291(b) at the Commission or at a State commission.
``(b) Alternative Dispute Resolution Process.--
``(1) Commission to prescribe process.--Within 180 days
after the date of enactment of the Telecommunications Fair
Competition Enforcement Act of 2001, the Commission shall,
after notice and opportunity for public comment, issue a
final rule implementing an alternative dispute resolution
process for the resolution of disputes under interconnection
agreements entered into under section 252. The process shall
be available to any party to such an agreement, including
agreements entered into prior to the date of enactment of
that Act, unless such prior agreement specifically precludes
the use of alternative dispute resolution.
``(2) Process requirements.--In carrying out paragraph (1),
the Commission shall prescribe a process that--
``(A) provides for binding private commercial arbitration
of disputes in an open, nondiscriminatory, and unbiased
forum;
``(B) ensures that a dispute submitted to the process can
be resolved within 45 days after the date on which the
dispute is filed; and
``(C) requires any decision reached under the process to be
in writing, available to the public, and posted on the
Internet.
``(3) Requests for information.--Any person or panel
conducting an arbitration under this subsection may require
any party to the dispute to provide such information as may
be necessary to enable that person or panel to reach a
decision with respect to the dispute. If the party that
receives such a request for information fails to comply with
such a request for information within 7 business days after
the date on which the request was made, then, unless that
party shows that the failure to comply was due to extenuating
circumstances, the person or panel conducting the arbitration
shall render a decision or award in favor of the other party
to the arbitration within 14 business days after the date on
which the request was made. The decision or award in favor of
a party shall not apply if the party in whose favor a
decision or award would be rendered under the preceding
sentence is not in compliance with a request for information
from the person or panel conducting the arbitration.
``(4) Remedies and authority of arbitrator.--Any person or
panel conducting an arbitration under this subsection may
grant to the prevailing party any relief available in law or
equity, including remedies available under this Act,
injunctive relief, specific performance, monetary awards, and
direct, consequential, and compensatory damages.
``(5) Arbitration award and enforcement.--A final decision
or award made by a person or panel conducting an arbitration
under this subsection shall be binding upon the parties and
is not subject to appeal by the parties or review by the
Commission, a State commission, or any Federal or State
court. A decision or award under the process may be enforced
in any district court of the United States having
jurisdiction under sections 9 through 13 of title 9, United
States Code.
``SEC. 294. ENFORCEMENT OF PERFORMANCE STANDARDS.
``(a) Commission To Prescribe Performance Standards for
Compliance with Interconnection Agreements.--Not later than
180 days after the date of enactment of the
Telecommunications Fair Competition Enforcement Act of 2001
the Commission shall, after notice and opportunity for public
comment, issue final rules for performance standards, data
validation procedures, and audit requirements to ensure
prompt and verifiable implementation of interconnection
agreements entered into under section 252 and for the
purposes of sections 251, 252, 271, and 272. At a minimum,
the rules shall include the most rigorous performance
standards, data validation procedures, and audit requirements
for such agreements adopted by the Commission or any State
commission before the date of enactment of the
Telecommunications Fair Competition Enforcement Act of 2001,
as well as any new performance standards, data validation
procedures, and audit requirements needed to ensure full
compliance with the requirements of this Act for the opening
of local telecommunications markets to competition. In
establishing performance standards, data validation
procedures, and audit requirements under this section, the
Commission shall ensure that such standards, procedures, and
requirements are quantifiable and sufficient to determine
ongoing compliance by incumbent local exchange carriers with
the requirements of their interconnection agreements,
including the provision of operating support systems, special
access, and retail and wholesale customer service standards,
and for the purposes of enforcing sections 251, 252, 271, and
272.
``(b) Specific Requirement for Provision of Local Loops.--A
Bell operating company or its affiliate which has not been
granted an exemption, suspension, or modification under
section 251(f) of the requirement to provide access to local
loops (including subloop elements to the extent required
under section 251(d)(2)) as an unbundled network element
under section 251(c)(3) shall provide any such local loop to
a requesting telecommunications carrier with which such Bell
operating company or affiliate has an interconnection
agreement entered into under section 252 within 5 business
days after receiving a request for a specific local loop.
``(c) Enforcement of Performance Metrics.--Any violation of
this section, or the rules adopted hereunder, shall be a
violation of section 251.
``SEC. 295. FORFEITURES; DAMAGES; ATTORNEYS FEES.
``(a) In General.--The forfeitures provided in this section
are in addition to any other requirements, forfeitures, and
penalties that may be imposed under any other provision of
this Act, any other law, or by a State commission or court.
``(b) Forfeitures for Violation of Sections 251, 252, 271,
or 272.--
``(1) In general.--The Commission shall impose a forfeiture
of $10,000,000 for each violation by a Bell operating company
or any affiliate of such company of section 251, 252, 271, or
272, and a forfeiture of $2,000,000 for each day on which the
violation continues.
``(2) Forfeiture increased threefold for repeat
violations.--The forfeiture under paragraph (1) shall be
increased threefold for a repeated violation of any such
section by a Bell operating company or its affiliate.
``(c) Compensatory and Punitive Damages; Costs and
Attorney's Fees.--
``(1) In general.--In any civil action brought by a
telecommunications carrier against a Bell operating company
or any affiliate of such company for damages for a violation
of section 251, 252, 271, or 272, or violation of any
interconnection agreement entered into under section 252 by a
Bell operating company, the carrier may be awarded--
``(A) both compensatory and punitive damages; and
``(B) reasonable attorney fees and costs incurred in
bringing the action.
``(2) Treble damages.--In any such action, the
telecommunications carrier may be awarded treble damages for
a repeated violation of any such section or interconnection
agreement by a Bell operating company or its affiliate.
``(d) Forfeiture for Failure to Comply with Order Granting
Interim Relief.--If the Bell operating company or its
affiliate to which an order is issued under section 292(b)
does not comply with the order within 7 days after the date
on which the Commission releases the order, and the
Commission makes a final determination that the Bell
operating company or affiliate is in violation of section
251, 252, 271, or 272, or violation of an interconnection
agreement entered into under section 252, then the Commission
shall impose a forfeiture of $10,000,000 for each such
violation, and a forfeiture of $2,000,000 for each day on
which the violation continued after issuance of the order.
``(e) Attorneys Fees.--The Commission, a State commission,
a court, or person conducting an arbitration under section
293 may award reasonable attorney fees and costs to the
prevailing party in an action commenced by a complaint
described in section 291(a), an enforcement action described
in section 291(b), or an alternative dispute resolution
proceeding under section 293, respectively.
``(f) Forfeitures Divided Between Complainants and
Commission.--Any forfeiture imposed under subsection (b) or
(d) shall be paid to the Commission and divided equally
between--
``(1) either--
``(A) the party whose complaint commenced the action that
resulted in the determination by the Commission, if the
Commission's determination was made in response to a
complaint; or
``(B) the party against which the violation was committed,
if the action that resulted in the determination by the
Commission was commenced by the Commission or a State
commission; and
``(2) the Commission for use by its Enforcement Bureau for
the purpose of enforcing parts II and III of title II of the
Communications Act of 1934 (47 U.S.C. 251 et seq. and 271 et
seq.) and carrying out part IV of title II of that Act.
``(g) Adjustment for Inflation.--The amount of each
forfeiture provided for under subsections (b) and (d) shall
be increased for violations during each calendar year
beginning with 2004 by a percentage amount equal to the
percentage increase (if any) in the CPI for the preceding
year over the CPI for 2001. For purposes of this subsection,
the CPI for any year is the average for the 12 months of the
year of the Consumer Price Index for all-urban consumers
published by the Department of Labor.
``SEC. 296. SAVINGS CLAUSES.
``(a) Other Remedies Under Act.--The remedies in this part
are in addition to any other requirements or penalties
available under this Act or any other law.
``(b) Antitrust Laws.--Nothing in this part modifies,
impairs, or supersedes the applicability of any antitrust
law, except that a violation by an incumbent local exchange
carrier of section 251 or 252 shall also be a violation of
the Act of July 2, 1890, commonly known as the Sherman Anti-
Trust Act (15 U.S.C. 1 et seq.).''.
SEC. 5. RATEPAYER PROTECTION.
The Commission shall not forbear from, or modify, any cost
allocation rules, accounting safeguards, or other
requirements in a manner that reduces its ability to enforce
the provisions of this Act.
SEC. 6. STATUTE OF LIMITATIONS EXTENDED TO 3 YEARS.
Section 503(b)(6) of the Communications Act of 1934 (47
U.S.C. 503(b)(6)) is amended by striking ``1 year'' each
place it appears and inserting ``5 years''.
[[Page S8938]]
SEC. 7. STATE COMMISSIONS MAY USE FEDERAL FORFEITURES.
In any action brought before a State commission to enforce
compliance with section 251, 252, 271, or 272 of the
Communications Act of 1934 (47 U.S.C. 251, 252, 271, or 272)
or an interconnection agreement entered into under section
252, the State commission may apply to the Federal
Communications Commission requesting that the Commission
impose a forfeiture under section 295 of that Act in addition
to any relief granted by the State commission in that action.
The Federal Communications Commission may impose a forfeiture
under section 295 of that Act upon application by a State
commission under this section if it determines that the State
commission proceeding was conducted in accordance with the
requirements of State law.
SEC. 8. SEPARATION OF RETAIL AND WHOLESALE FUNCTIONS.
(a) In General.--Title II of the Communications Act of 1934
(47 U.S.C. 201 et seq.) is amended by adding at the end the
following:
``SEC. 277. FUNCTIONAL SEPARATION OF RETAIL SERVICES.
``(a) In General.--A Bell operating company may only
provide retail service--
``(1) through a division that is legally separate from the
part of the Bell operating company that provides wholesale
services; and
``(2) in a manner that is consistent with the Code of
Conduct described in subsection (b).
``(b) Code of Conduct.--The Code of Conduct for the
provision of retail service by a Bell operating company is as
follows:
``(1) A Bell operating company shall transfer to its retail
division all relationships with retail customers, including
customer interfaces and retail billing and all development,
marketing, and pricing of retail services.
``(2) A Bell operating company shall transfer to its retail
division all accounts for retail services and all assets,
systems, and personnel used by the Bell operating company to
carry out the business functions described in paragraph (1).
``(3) The retail division required by this section--
``(A) shall be operated independently from the wholesale
services and functions of the Bell operating company of which
it is a division;
``(B) shall maintain books, records, and accounts separate
from those maintained by other departments, divisions,
sections, affiliates, or units of the Bell operating company
of which it is a division;
``(C) shall have separate employees and office space from
the wholesale services and functions of the Bell operating
company of which it is a division;
``(D) shall tie its management compensation only to the
performance of the retail division;
``(E) may not own any telecommunications facilities or
equipment jointly with the Bell operating company of which it
is a division;
``(F) shall not engage in any joint marketing with the
wholesale services department, division, section, affiliate,
or unit of the Bell operating company of which it is a
division;
``(G) shall conduct all wholesale transactions with the
Bell operating company of which it is a division on a fully
compensatory, arms-length basis, in accordance with part 32
of the Commission's rules (part 32 of title 47, Code of
Federal Regulations);
``(H) shall offer retail telecommunications service solely
at rates set by tariff; and
``(I) shall also offer all of its retail telecommunications
services to telecommunications carriers for wholesale
purchase at the avoided cost discount as established pursuant
to sections 251(c)(4) and 252(d)(3).
``(4) A Bell operating company shall provide services,
facilities, and network elements to any requesting carrier,
including its retail division solely at rates, terms, and
conditions set by tariff; shall offer physical and virtual
collocation pursuant to tariffs; shall not provide any retail
service except through its retail division; and shall not
grant its retail division any preferential intellectual
property rights. The Bell operating company shall conduct any
business with unaffiliated persons in the same manner as it
conducts business with its retail division, and shall not
prefer, or discriminate in favor of, such retail division in
the rates, terms, or conditions offered to the retail
division, including--
``(A) fulfilling any requests from unaffiliated persons for
ordering, maintenance, and repair of unbundled network
elements and services provided for resale, within a period no
longer than that in which it fulfills such requests from its
retail division;
``(B) utilizing the same operating support systems for
dealings with unaffiliated persons providing
telecommunications service as it uses with its retail
division;
``(C) providing any customer or network information to
unaffiliated persons providing retail services on the same
terms and conditions as it provides such information to its
retail division;
``(D) fulfilling any requests from an unaffiliated person
for exchange access within a period no longer than that in
which it fulfills requests for exchange access from its
retail division; and
``(E) fulfilling any such requests in subparagraph (D) with
service of a quality that meets or exceeds the quality of
exchange access it provides to its retail division.
``(c) Biennial Audit.--
``(1) General requirement.--A Bell operating company shall
obtain and pay for a joint Federal/State audit every 2 years
which shall be conducted by an independent auditor to
determine whether such company has complied with this section
and the regulations promulgated to implement this section.
``(2) Results submitted to Commission; State Commissions.--
The auditor described in paragraph (1) shall submit the
results of the audit to the Commission and to the State
commission of each State in which the company audited
provides service, and the Commission shall make such results
available for public inspection. Any party may submit
comments on the final audit report.
``(3) Access to documents.--For purposes of conducting
audits and reviews under this subsection--
``(A) the independent auditor, the Commission, and the
State commission shall have access to the financial books,
records, and accounts of each Bell operating company and its
retail division necessary to verify transactions conducted
with that company that are relevant to the specific
activities permitted under this section and that are
necessary for the regulation of rates;
``(B) the Commission and the State commission shall have
access to the working papers and supporting materials of any
auditor who performs an audit under this section; and
``(C) the State commission shall implement appropriate
procedures to ensure the protection of any proprietary
information submitted to it under this section.
``(d) Transition.--
``(1) A Bell operating company shall have one year from the
date of enactment of the Telecommunications Fair Competition
Enforcement Act of 2001 to comply with subsections (a) and
(b).
``(2) Until such time as the Bell operating company
complies with the requirements of subsection (a), it shall
file quarterly reports demonstrating how it is implementing
compliance with the nondiscrimination requirements of
subsection (b)(4).
``(e) Ratepayer Protection.--The Commission shall not relax
any cost allocation rules, accounting safeguards, or other
requirements in a manner that reduces its ability to enforce
the provisions of this section.
``(f) Definitions.--In this section:
``(1) Bell operating company.--Notwithstanding section
3(4)(C), the term `Bell operating company' includes any
affiliate of such company other than its retail division.
``(2) Retail devision.--The term `retail division' means
the division required by this section.
``(3) Retail service.--The term `retail service' means any
telecommunications or information service offered to a person
other than a common carrier or other provider of
telecommunications.
``(g) Report on Violations.--Until December 31, 2010, the
Commission shall report to Congress annually on the amount
and nature of any violations of sections 251, 252, 271, and
272 by each Bell Operating Company.
``(h) Preservation of Existing Authority.--Nothing in this
section shall be construed to limit the authority of the
Commission under any other section of this Act to prescribe
additional safeguards consistent with the public interest,
convenience, and necessity.
``SEC. 278. SEPARATE RETAIL AFFILIATE.
``(a) Repeated Violations.--If, beginning 2 years after
enactment of the Telecommunications Fair Competition
Enforcement Act of 2001, the Commission finds that a Bell
operating company willfully or knowingly violated the
requirements of sections 251, 252, 271, or 272 of this Act,
the Commission may require the Bell Operating Company to
implement structural separation under this section.
``(b) In General.--If the Commission requires a Bell
operating company to implement structural separation under
this section, then that Bell operating company may provide
retail services only through a separate affiliate. A Bell
operating company and a separate affiliate established under
this section shall not engage in any joint marketing of
retail services, notwithstanding section 272(g).
``(c) Structural Separation of Business.--A Bell operating
company shall comply with subsection (b) by transferring the
following business functions to its retail affiliate, at the
higher of book value or market value:
``(1) all relationships with retail customers, including
customer interfaces and retail billing; and
``(2) all development, marketing, and pricing of retail
services.
``(d) Structural Separation of Assets.--
``(1) A Bell operating company shall comply with subsection
(b) by transferring the following assets to its retail
affiliate at the higher of book or market value:
``(A) all accounts for retail services, subject to the
requirements of subsection (j); and
``(B) all assets, systems, and personnel used by the Bell
operating company to carry out the business functions
described in subsection (c).
``(2) The price, terms, and conditions of the transfer of
assets required by paragraph (1) shall be made publicly
available.
``(e) Separate Subsidiary Safeguards.--The separate
affiliate required by this section--
``(1) shall operate independently from the Bell operating
company;
[[Page S8939]]
``(2) shall maintain books, records, and accounts separate
from those maintained by the Bell operating company of which
it is an affiliate;
``(3) shall have separate officers and directors from the
Bell operating company of which it is an affiliate;
``(4) shall have separate capital stock, the outstanding
shares of which may not be held by the Bell operating company
in any amount exceeding four times the amount of shares held
by unaffiliated persons;
``(5) shall have separate employees and separate employee
benefit plans from the Bell operating company of which it is
an affiliate;
``(6) may not obtain credit under any arrangement that
would permit a creditor, upon default, to have recourse to
the assets of the Bell operating company;
``(7) may not own any telecommunications facilities or
equipment;
``(8) shall conduct all transactions with the Bell
operating company of which it is an affiliate on an arms'
length basis, with any such transactions reduced to writing
and available for public inspection;
``(9) shall offer retail telecommunications service solely
at rates set by tariff;
``(10) shall offer all of its retail telecommunications
services for wholesale purchase at the avoided cost discount
as established pursuant to sections 251(c)(4) and 252(d)(3);
``(11) shall have separate office space from the wholesale
services and functions of the Bell operating company of which
it is an affiliate;
``(12) shall tie its management compensation only to the
performance of the retail affiliate; and
``(13) shall conduct all wholesale transactions with the
Bell operating company of which it is an affiliate on a fully
compensatory basis, in accordance with part 32 of the
Commission's rules (part 32 of title 47, Code of Federal
Regulations).
``(f) Nondiscrimination Safeguards.--A Bell operating
company--
``(1) shall provide services, facilities and network
elements to any requesting carrier, including its retail
affiliate, solely at rates set by tariff;
``(2) shall conduct any business with unaffiliated entities
in the same manner as it conducts business with its retail
affiliate, and shall not prefer, or discriminate in favor of,
such retail affiliate in the rates, terms, or conditions
offered to the retail affiliate, including--
``(A) fulfilling any requests from an unaffiliated entity
for exchange access service within a period no longer than
that in which it fulfills requests for exchange access
service from its retail affiliate;
``(B) fulfilling any such requests with service of a
quality that meets or exceeds the quality of exchange access
services it provides to its retail affiliate;
``(C) fulfilling any requests from an unaffiliated entity
for ordering, maintenance and repair of unbundled network
elements and services provided for resale, within a period no
longer than that in which it fulfills such requests from its
retail affiliate;
``(D) utilizing the same operating support systems for
dealings with unaffiliated entities providing
telecommunications service as it uses with its retail
affiliate; and
``(E) providing any customer or network information to
unaffiliated entities providing telecommunications services
on the same terms and conditions as it provides such
information to its retail affiliate;
``(3) shall not offer physical and virtual collocation
other than pursuant to generally available tariffs;
``(4) shall not grant its retail affiliate any preferential
intellectual property rights; and
``(5) shall not provide any retail service for its own use,
but shall procure such services from a carrier other than its
retail affiliate.
``(g) Biennial Audit.--
``(1) General requirement.--A Bell operating company shall
obtain and pay for a joint Federal/State audit every 2 years
conducted by an independent auditor to determine whether such
company has complied with this section and the regulations
promulgated under this section.
``(2) Results submitted to commission; state commissions.--
The auditor described in paragraph (1) shall submit the
results of the audit to the Commission and to the State
commission of each State in which the company audited
provides service, which shall make such results available for
public inspection. Any party may submit comments on the final
audit report.
``(3) Access to documents.--For purposes of conducting
audits and reviews under this subsection--
``(A) the independent auditor, the Commission, and the
State commission shall have access to the financial books,
records, and accounts of each Bell operating company and of
its affiliates necessary to verify transactions conducted
with that company that are relevant to the specific
activities permitted under this section and that are
necessary for the regulation of rates;
``(B) the Commission and the State commission shall have
access to the working papers and supporting materials of any
auditor who performs an audit under this section; and
``(C) the State commission shall implement appropriate
procedures to ensure the protection of any proprietary
information submitted to it under this section.
``(h) Preservation of Existing Authority.--Nothing in this
section shall be construed to limit the authority of the
Commission under any other section of this Act to prescribe
safeguards consistent with the public interest, convenience,
and necessity.
``(i) Presubscription.--Concurrent with the establishment
of the separate retail affiliate required by this section, in
any local calling area served by a Bell operating company,
consumers shall have the opportunity to select their provider
of telephone exchange service by means of a balloting process
established by rule by the Commission.
``(j) Ratepayer Protection.--The Commission shall not relax
any cost allocation rules, accounting safeguards, or other
requirements in a manner that reduces its ability to enforce
the provisions of this section.
``(k) Definitions.--In this section:
``(1) Bell operating company.--Notwithstanding section
3(4)(C), the term `Bell operating company' includes any
affiliate of such company other than its retail affiliate.
``(2) Retail affiliate.--The term `retail affiliate' means
the affiliate required by this section.
``(3) Retail service.--The term `retail service' means any
telecommunications or information service offered to a person
other than a common carrier or other provider of
telecommunications.''.
______
By Mr. NICKLES:
S. 1366. A bill for the relief of Lindita Idrizi Heath; to the
Committee on the Judiciary.
Mr. NICKLES. 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. 1366
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PERMANENT RESIDENT STATUS FOR LINDITA IDRIZI
HEATH.
(a) In General.--Notwithstanding section 101(b)(1) and
subsections (a) and (b) of section 201 of the Immigration and
Nationality Act, Lindita Idrizi Heath shall be eligible for
issuance of an immigrant visa or for adjustment of status to
that of an alien lawfully admitted for permanent residence
upon filing an application for issuance of an immigrant visa
under section 204 of that Act or for adjustment of status to
lawful permanent resident.
(b) Adjustment of Status.--If Lindita Idrizi Heath enters
the United States before the filing deadline specified in
subsection (c), Lindita Idrizi Heath shall be considered to
have entered and remained lawfully and shall, if otherwise
eligible, be eligible for adjustment of status under section
245 of the Immigration and Nationality Act as of the date of
enactment of this Act.
(c) Deadline for Application and Payment of Fees.--
Subsections (a) and (b) shall apply only if the application
for issuance of an immigrant visa or the application for
adjustment of status is filed with appropriate fees within 2
years after the date of enactment of this Act.
(d) Reduction of Immigrant Visa Numbers.--Upon the granting
of an immigrant visa or permanent residence to Lindita Idrizi
Heath, the Secretary of State shall instruct the proper
officer to reduce by one, during the current or next
following fiscal year, the total number of immigrant visas
that are made available to natives of the country of birth of
Lindita Idrizi Heath under section 203(a) of the Immigration
and Nationality Act or, if applicable, the total number of
immigrant visas that are made available to natives of the
country of birth of Lindita Idrizi Heath under section 202(e)
of that Act.
SEC. 2. ELIGIBILITY FOR CITIZENSHIP.
For purposes of section 320 of the Immigration and
Nationality Act (8 U.S.C. 1431; relating to the automatic
acquisition of citizenship by certain children born outside
the United States), Lindita Idrizi Heath shall be considered
to have satisfied the requirements applicable to adopted
children under section 101(b)(1) of that Act (8 U.S.C.
1101(b)(1)).
SEC. 3. LIMITATION.
No natural parent, brother, or sister, if any, of Lindita
Idrizi Heath shall, by virtue of such relationship, be
accorded any right, privilege, or status under the
Immigration and Nationality Act.
______
By Ms. COLLINS (for herself and Mr. Feingold):
S. 1367. A bill to amend title XVIII of the Social Security Act to
provide appropriate reimbursement under the medicare program for
ambulance trips originating in rural areas; to the Committee on
Finance.
Ms. COLLINS. Mr. President, I am pleased to join with my friend and
colleague, Senator Russ Feingold, in introducing legislation today to
provide needed financial relief to rural ambulance providers.
Historically, Medicare payments for ambulance services provided by
freestanding ambulance providers have been based on a proportion of
their reasonable charges, while payments to hospital-based providers
have been
[[Page S8940]]
based on their actual costs. The Balanced Budget Act of 1997, however,
directed the Secretary of Health and Human Services to establish a fee
schedule for the payment of ambulance services using a negotiated
rulemaking process. This rulemaking Committee finalized its agreement
in February of 2000, and the then-Health Care Financing Administration,
HCFA, issued a proposed rule last September. The new fee schedule was
originally scheduled to start on January 1, 2001, but its
implementation has been delayed while HCFA, now the Centers for
Medicare and Medicaid Services, continues to work on publishing a final
rule.
Payment under this new fee schedule will preclude hospital providers
of ambulance services from recouping their actual costs. For the
average, high-volume urban provider, this should not pose a significant
problem. Ambulance services in rural areas, however, tend to have
higher fixed costs and low volume, which means that they are unable to
take advantage of any economies of scale. I am therefore extremely
concerned that the proposed rule fails to include a meaningful
adjustment for low-volume ambulance providers.
I recently heard about the impact that this change will have on one
of Maine's rural hospitals, Franklin Memorial Hospital in Farmington,
ME. Logging, tourism, and recreational activities are central to the
economic viability of this region, and good emergency transport is
essential Franklin Memorial owns and operates five local ambulance
services that cover more than 2,000 square miles of rural Maine. They
serve some of the most remote areas of the State, and ambulances often
have to travel more than 80 miles to reach the hospital. Moreover,
these trips frequently involve backwoods and wilderness rescues which
require highly trained staff. Since there are only 30,000 people in
Franklin Memorial's service area, however, volume is very low.
Under the current Medicare reimbursement system, Franklin Memorial
has just managed to break even on its ambulance services. Under the
proposed fee schedule, however, these services stand to lose up to
$500,000 a year, system-wide. While the small towns served by Franklin
Memorial help to subsidize this service, there is no way that they can
absorb this loss. The Medicare, Medicaid and S-CHIP Benefits
Improvement and Protection Act, BIPA, did increase the mileage
adjustment for rural ambulance providers driving between 17 and 50
miles by $1.25. While this is helpful, it will not begin to compensate
low-volume ambulance services like Franklin Memorial Hospital
adequately.
Congress has required the General Accounting Office to conduct a
study of costs in low-volume areas, but any GAO-recommended adjustments
in the ambulance fee schedule would not be effective until 2004. The
Rural Ambulance Relief Act that I am introducing today with Senator
Feingold will therefore establish a hold harmless provision allowing
rural ambulance providers to elect to be paid on a reasonable cost
basis until the Centers for Medicare and Medicaid Services is able to
identify and adjust payments under the new ambulance fee schedule for
services provided in low-volume rural areas.
______
By Mr. ALLARD (for himself and Mr. Smith of New Hampshire):
S. 1368. A bill to amend title 10, United States Code, to improve the
organization and management of the Department of Defense with respect
to space programs and activities, and for other purposes; to the
Committee on Armed Services.
Mr. ALLARD. Mr. President, today I rise to introduce, along with
Senator Bob Smith, a bill to improve the organization and management of
the Department of Defense with respect to space programs and
activities. To my very good friend, I would like to extend my
congratulations for being the driving force in establishing the
``Commission to Assess United States National Security Space Management
and Organization'' or better known as the Space Commission which led to
this legislation.
The Commission looked at the role of organization and management in
the development and implementation of national-level guidance and in
establishing requirements, acquiring and operating systems, and
planning, programming and budgeting for national security space
capabilities. What the Commission found is that the United States
dependence on space is creating vulnerabilities and demands on our
space systems which requires space to be recognized as a top national
security priority. This priority must begin at the top with the
President and must be embraced by the country's leaders.
Senator Smith and I agree that space must be a top priority and that
is why we are introducing this legislation. We want this to be a
statement to everyone, that space is a priority and must be treated as
such.
The Commission also concluded that these new vulnerabilities and
demands are not adequately addressed by the current management
structure at the Department. The Commission found that a number of
space activities should be merged, chains of command adjusted, lines of
communications opened and policies modified to achieve greater
responsibility and accountability.
I understand the Department is making some of these changes today.
However, we believe Congress should show its support to our military
men and women involved in space that Congress wants them to succeed and
that we will provide the tools for them to achieve that goal.
This legislation will provide the Secretary of Defense the tools he
needs for more effective management and organization of space program
and activities. Specifically the legislation:
Provides permissive authority for the Secretary of Defense to
establish an Under Secretary of Defense for Space, Intelligence and
Information--This permissive authority will provide the Secretary of
Defense flexibility.
Designates the duties of the Under Secretary of Defense for Space,
Intelligence and Information, provides for an additional Assistant
Secretary of Defense (conditional on creation of the new Under
Secretary of Defense position). This provision follows the
recommendations of the Commission.
Requires the Secretary of Defense to issue a report 30 days prior to
exercise of the authority to establish the new Under Secretary position
on the proposed organization; and requires a report one year after
enactment if the new position has not been created to describe how the
intent of the Space Commission is being implemented.
Establishes the Secretary of the Air Force as the Executive Agent for
DOD space programs for DOD functions designated by the Secretary of
Defense; and assigns to acquisition executive function to the Under
Secretary of the Air Force. The Secretary of Defense has flexibility in
assigning and defining functions of the Executive Agent;
Assigns the Under Secretary of the Air Force as the director of the
NRO; and directs the Under Secretary of the Air Force to coordinate the
space activities of DOD and the NRO;
Directs the Under Secretary of the Air Force to establish a space
career field and directs the Secretary of the Air Force to assign the
Commander of Air Force Space Command to manage the space career field.
Establishment of career field is an important commission recommendation
and key indicator concerning AF implementation.
Requires that, to the maximum extent practicable, space programs be
jointly managed. I believe this will encourage the Army and Navy to
develop space personnel.
Creates a major force program for space which will provide visibility
into space program funding.
Requires a GAO assessment of the progress made by DOD in implementing
the recommendations of the Space Commission.
Requires the commander of Air Force Space Command to be a four star
general; and prohibits the commander of Air Force Space Command from
serving concurrently as CINCSPACE or and commander of the U.S. element
of NORAD--Elevates space component commander to level of all other
major Air Force component commanders
Finally, it expresses the sense of Congress that CINCSPACE should be
the best qualified four-star officer from the Army, Navy, Marines, or
Air Force--Rotation of CINCSPACE will encourage Army, Navy, and Marines
to develop space expertise
[[Page S8941]]
These measures provide the authority which, if exercised by the
Secretary, can provide the focus and attention that space programs and
activities deserve. This is imperative in a world where some
technology's life span can be less than 24 months. DOD must be able to
respond to these changing environments.
Mr. President, I want to thank my colleague for joining with me in
this effort to provide the Department the tools it needs to make space
a top national security priority. We look forward to seeing this bill
becoming law and welcome all Senators to join us on this important
legislation.
Mr. SMITH of New Hampshire. Mr. President, I am pleased to send to
the desk a bill that will make improvements in our current national
security space management and organization.
I am delighted to stand here today and state that the Department of
Defense is moving forward to implement the recommendations of the
Commission to Assess United States National Security Space Management
and Organization, more commonly known as the Space Commission. I pushed
my colleagues to charter this group of 13 senior military-space experts
in the Fiscal Year 1999 Defense Authorization Act to assess the
management of military space matters today and make recommendations to
strengthen the national security space organization in the future.
It is a wonderful coincidence that the chairman of the bipartisan
Space Commission, the Honorable Donald Rumsfeld, was appointed by
President Bush and confirmed by the Senate for the position of
Secretary of Defense. As a result, Secretary Rumsfeld brings to his
position a keen appreciation of the importance of space to the future
national security of the United States.
The Space Commission, the efforts of the Secretary of Defense, and
this proposed legislation will set this nation on a bold new course.
More than fifty years ago, this nation took a similar bold step in
establishing military air power with the creation of the U.S. Air
Force. This decision, under the National Security Act of 1947, was
signed into law by President Truman and dramatically restructured our
institutional approach to military air power. This restructuring
resulted from years of air-power management problems under the Army,
insufficient reforms under the Army Air Corps established in 1926, and
assessments of numerous committees like the recent Space Commission.
The military management and organizational reforms of fifty years ago
were a great success, and today, quite a bit has changed for the
better. As a result of the formation of a separate service focused on
air power, we soon developed, and have had, right up to today, the best
equipped and best trained Air Force in the world. The U.S. Air Force is
capable of surpassing any enemy.
However, we have come to see that there are structural limitations
inherent in the Air Force today with respect to space power just as
there were in the Army fifty years ago with respect to air power. The
Army has been structured to meet ground requirements. Its training,
doctrine, leaders, and culture are all focused on fighting ground
battles. For systemic reasons, the Army was not able to develop a
strong, viable military air power. Therefore, the Air Force was created
by the 1947 National Security Act which called for the creation of a
separate organization designed to deal specifically with air power.
There are many parallels between the early struggle for air power
that led to the creation of the Air Force and the issues we face today
in seeking space power. The similarities between these two issues are
truly astounding.
Today, space is used only in support of air, land, and sea warfare in
much the same manner that air power was at first seen as only a way to
support ground forces. Space today is used to provide ``information
superiority'' in support of other missions, but there is the potential
for so much more. We, as a Nation, need to stop talking and dreaming of
a dominant space presence and start doing. We must recognize the
importance of space as a permanent frontier for the military, so that
America may proceed into space with the same confidence, assurance, and
authority that marked our entrance into the skies.
Currently, space programs are raided for funds ten times more often
than other Air Force programs because space programs are either not
aggressively defended and/or not aggressively executed consistent with
the intent of Congress. Other space opportunities like the military
space plane, an air and space vehicle promising future power projection
from the U.S. to anywhere in the world in 45 minutes or less, are
extremely important to the cost-effective transformation of the
military especially during this period of shrinking American military
presence around the globe. Yet the space plane and most of the space
programs continue to be underfunded. We need a better leader in space.
The reason for this is simple: the top priority of the Air Force is
and will remain air power, not space power. The top jobs do and will
continue to elude space officers in an Air Force run by pilots unless
we can create an organization whose job it would be to defend space
programs, to make sure that funding for space opportunities goes where
it is supposed to go, and does not get rerouted back to other non-space
programs.
Space is too important a frontier and too vital a resource to be
allowed to remain untapped and unexplored, undefended and unmanned.
America's future security and prosperity depends on our constant
vigilance. We cannot afford to ignore space because our enemies will
not. While we are ahead of any potential rival in exploiting space, we
are not unchallenged. Our future superiority is by no means assured. To
ensure superiority, we must combine expansive thinking with a sustained
and substantial commitment of resources and vest them in a dedicated,
politically powerful, independent advocate for space.
The way it is organized today, the Air Force is not building the
material, cultural, or organizational foundations of a service
dedicated to space power. Where are the space science and technology
investments? Where is the funding for key space-power programs? Where
are the personnel investments? What concrete steps are being taken to
build a dedicated cadre of young space-warfare officers?
Before closing, let me assure my colleagues of what this legislation
is and what it is not. This legislation is about streamlined
management, efficient operations, and the elimination of redundancy. It
is about establishing an advocate for space who can evaluate space
opportunities and bring those proposals forward to the President and
Congress for disposition. It is about maximizing the national-security
capability for every tax dollar spent. I have seen press stories that
twisted Secretary Rumsfeld's support of the Space Commission
recommendations as an intent to weaponize space. Let me assure my
colleagues that this bill does not weaponize space. This is about
management and organization. It is about good government. Enacting this
legislation merely ensures that the concrete management reforms
recommended by the Space Commission are implemented quickly.
The Secretary of Defense, the Services, and the Intelligence
Community all support the unanimous bipartisan recommendations from the
Space Commission. I urge my Colleagues to support this bill which
implements those recommendations. Space is critical to the future of
this nation. It is important for Congress to provide leadership so that
these recommendations are implemented quickly and not watered-down.
While the Secretary does have broad management authority to run the
Department of Defense, space is too important to be managed in-the-
margin or through loopholes in statute. Just as Congress established
the Army Air Corps in 1926 and the Air Force in 1947, it is right that
Congress legislate these space management reforms.
Space dominance is too important to the success of future warfare to
allow any bureaucracy, military department, or parochial concern to
stand in the way. To protect America's interests we need to move
forward consistent with the spirit of the Space Commission. This
legislation is a good first step.
______
By Mr. WARNER:
S. 1369. A bill to provide that Federal employees may retain for
personal use
[[Page S8942]]
promotional items received as a result of travel taken in the course of
employment; to the Committee on Governmental Affairs.
Mr. WARNER. Mr. President, today I am introducing legislation that
will allow Federal employees to keep frequent flyer miles they receive
while on official government travel. This will level the playing field
between Federal employees and their counterparts in the private sector
where companies traditionally allow employees to retain frequent flyer
miles and similar benefits earned while on business travel.
In 1994, a law was passed that requires Federal employees to
surrender their frequent flyer miles back to their agencies. The
frequent flyer miles would then be used to defray the costs of future
travel costs by agency personnel.
A recent review conducted by the Government Accounting Office reports
that these miles usually become lost, however, in an administrative
shuffle. Airlines do not keep separate business and personal accounts
for the same individual. While the law had good intentions, it is
impractical, if not impossible, for an agency to apply the miles or
travel benefits elsewhere.
While travel may be inherent with certain jobs, business related
travel often impedes on an individual's personal time, time that person
could be spending with family and at home. Allowing Federal employees
to keep their frequent flyer miles will also help to support the
government's ongoing efforts to recruit and retain a skilled, qualified
workforce. Furthermore, I believe it will boost morale in the federal
workforce.
I encourage my colleagues to cosponsor this legislation and show
their support for the dedicated employees of the Federal workforce.
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. 1369
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. RETENTION OF TRAVEL PROMOTIONAL ITEMS.
(a) In General.--Section 5702 of title 5, United States
Code, is amended--
(1) by redesignating subsection (c) as subsection (d);
(2) in subsection (d) (as redesignated by paragraph (1)),
by striking ``This section does'' and inserting ``Subsections
(a) and (b) do''; and
(3) by inserting after subsection (b) the following:
``(c) Promotional items (including frequent flyer miles,
upgrades, and access to carrier clubs or facilities) an
employee receives as a result of using travel or
transportation services procured by the United States or
accepted pursuant to section 1353 of title 31 may be retained
by the employee for personal use if such promotional items
are obtained under the same terms as those offered to the
general public and at no additional cost to the
Government.''.
(b) Repeal of Superceded Law.--Section 6008 of the Federal
Acquisition Streamlining Act of 1994 (5 U.S.C. 5702 note;
Public Law 103-355) is repealed.
(c) Applicability.--The amendments made by this Act shall
apply with respect to promotional items received before, on,
or after the date of the enactment of this Act.
______
By Mr. LEVIN (for himself, Mr. Grassley, Mr. Sarbanes, Mr. Nelson
of Florida, Mr. Kyl, and Mr. DeWine):
S. 1371. A bill to combat money laundering and protect the United
States financial system by strengthening safeguards in private banking
and correspondent banking, and for other purposes; to the Committee on
Banking, Housing, and Urban Affairs.
Mr. LEVIN. Mr. President, today I am introducing, along with my
colleagues Senator Grassley, Senator Sarbanes, Senator Bill Nelson,
Senator Mike DeWine, and Senator Jon Kyl, the Money Laundering
Abatement Act, a bill to modernize and strengthen U.S. laws to detect,
stop and prosecute money laundering through U.S. banks.
The safety and soundness of our banking system, the stability of the
U.S. dollar, the services our banks perform, and the returns our banks
earn for depositors make the U.S. banking system an attractive location
for money launderers. And money launderers who are able to use U.S.
banks can take advantage of the prestige of these banks to lend
credibility to their operations, reassure victims, and send wire
transfers that may attract less scrutiny from law enforcement. So
whether it is to protect their funds or further their crimes, money
launderers want access to U.S. banks, and they are devising one scheme
after another to infiltrate the U.S. banking system.
The funds they want to move through our banks are enormous. Estimates
are that at least $1 trillion in criminal proceeds are laundered each
year, with about half of that amount, $500 billion, going through U.S.
banks.
Stopping this flood of dirty money is a top priority for U.S. law
enforcement which spent about $650 million in taxpayer dollars last
year on anti-money laundering efforts. That's because money laundering
damages U.S. interests in so many ways, rewarding criminals and
financing crime, undermining the integrity of international financial
systems, weakening emerging democracies and distorting their economies,
and impeding the international fight against corruption, drug
trafficking and organized crime.
The bill we are introducing today would provide new and improved
tools to stop money laundering. Because it includes provisions that
would outlaw the proceeds of foreign corruption, cut off the access of
offshore shell banks to U.S. banks, and end foreign bank immunity to
forfeiture of laundered funds, this bill would close some of the worst
gaps and remedy some of the most glaring weaknesses in existing anti-
money laundering laws. For example, the bill would: 1. add foreign
corruption offenses, such as bribery and theft of government funds, to
the list of foreign crimes that can trigger a U.S. money laundering
prosecution; 2. bar U.S. banks from providing banking services to
foreign shell banks, which are banks that have no physical presence in
any country and carry high money laundering risks; 3. require U.S.
banks to conduct enhanced due diligence reviews to guard against money
laundering when opening (a) a private bank account with $1 million or
more for a foreign person, or (b) a correspondent account for an
offshore bank or foreign bank in a country posing high money laundering
risks; and 4. make a depositor's funds in a foreign bank's U.S.
correspondent account subject to the same civil forfeiture rules that
apply to depositors' funds in other U.S. bank accounts.
These provisions are the product of almost three years of work by my
staff at the Senate Permanent Subcommittee on Investigations examining
money laundering problems in the private and correspondent banking
fields. Countless interviews with money laundering experts, bankers,
regulators, law enforcement personnel, criminals and victims, and the
careful review of literally tens of thousands of pages of documents led
to the issuance of two staff reports in 1999 and 2001, and several days
of Subcommittee hearings, setting out the problems uncovered and
recommendations for strengthening U.S. enforcement efforts.
The first Subcommittee investigation examined private banking, a
growing and lucrative banking sector which offers financial services to
wealthy individuals, who usually must deposit $1 million or more to
open a private bank account. In return, the client is assigned a
``private banker'' who provides the client with sophisticated financial
services, such as offshore accounts, shell corporations, and high
dollar wire transfers, which raise money laundering concerns.
A key issue to emerge from this investigation is the role that
private banks play in opening accounts and accepting hundreds of
millions of dollars in deposits from senior foreign officials or their
relatives, even amid allegations or suspicions that the deposits may be
the product of government corruption or other criminal conduct. The
1999 staff report described four case histories of senior government
officials or their relatives depositing hundreds of millions of suspect
dollars into private bank accounts at Citibank, the largest bank in the
United States. These case histories showed how Citibank Private Bank
had become the banker for a rogues' gallery of senior government
officials or their relatives. One infamous example is Raul Salinas, the
brother of the former President of Mexico, who is imprisoned in Mexico
for murder and is under indictment in
[[Page S8943]]
Switzerland for money laundering associated with drug trafficking. He
deposited almost $100 million into his Citibank Private Bank accounts.
Another example involves the three sons of General Sani Abacha, who was
the former military leader of Nigeria and was notorious for
misappropriating and extorting billions of dollars from his country.
His sons deposited more than $110 million into Citibank Private Bank
accounts.
The investigation determined that Citibank's private bankers asked
few questions before opening the accounts and accepting the funds. It
also found that, because foreign corruption offenses are not currently
on the list of crimes that can trigger a U.S. money laundering
prosecution, corrupt foreign leaders may be targeting U.S. banks as a
safe haven for their funds.
Another striking aspect of the investigation was how a culture of
secrecy pervaded most private banking transactions. Citibank private
bankers, for example, routinely helped clients set up offshore shell
companies and open bank accounts in the name of these companies or
under other fictional names such as ``Bonaparte'' or ``Gelsobella.''
After opening these accounts, secrecy remained such a priority that
Citibank private bankers were often told by their superiors not to keep
any record in the United States disclosing the true owner of the
offshore accounts or corporations they manage. One private banker told
of stashing with his secretary a ``cheat sheet'' that identified which
client owned which shell company in order to hide it from Citibank
managers who did not allow such ownership information to be kept in the
United States.
On some occasions, Citibank Private Bank even hid ownership
information from its own staff. For example, one Citibank private
banker in London worked for years on a Salinas account without knowing
Salinas was the beneficial owner. Salinas was instead referred to by
the name of his offshore corporation, Trocca, Ltd., or by a code, ``CC-
2,'' which stood for ``Confidential Client Number 2.'' Citibank even
went so far as to allow Mr. Salinas to deposit millions of dollars into
his private bank accounts without putting his name on the wire
transfers moving the funds, instead allowing his future wife, using an
assumed name, to wire the funds through Citibank's own administrative
accounts. Later, when Mr. Salinas' wife was arrested, Citibank
discussed transferring all of his funds to Switzerland to minimize
disclosure, abandoning that suggestion only after noting that the wire
transfer documentation would disclose the funds' final destination.
That's how far one major U.S. private bank went on client secrecy.
The Subcommittee's second money laundering investigation focused on
U.S. correspondent accounts opened for high risk foreign banks.
Correspondent banking occurs when one bank provides services to another
bank to move funds or carry out other financial transactions. It is an
essential feature of international banking, allowing the rapid movement
of funds across borders and enabling banks and their clients to conduct
business worldwide, including in jurisdictions where the banks do not
maintain offices.
The problem uncovered by the Subcommittee's year-long investigation
is that too many U.S. banks, through the correspondent accounts they
provide to foreign banks that carry high risks of money laundering,
have become conduits for illicit funds associated with drug
trafficking, financial fraud, Internet gambling and other crimes. The
investigation identified three categories of foreign banks with high
risks of money laundering: shell banks, offshore banks, and banks in
jurisdictions with weak anti-money laundering controls. Because many
U.S. banks have routinely failed to screen and monitor these high risk
foreign banks as clients, they have been exposed to poorly regulated,
poorly managed, sometimes corrupt, foreign banks with weak or no anti-
money laundering controls. The U.S. correspondent accounts have been
used by these foreign banks, their owners and criminal clients to gain
direct access to the U.S. financial system, to benefit from the safety
and soundness of the U.S. banking system, and to launder dirty money
through U.S. bank accounts.
In February of this year, my staff released a 450 page report
detailing the money laundering problems uncovered in correspondent
banking. The report indicated that virtually every U.S. bank examined,
from Chase Manhattan, to Bank of America, to First Union, to Citibank,
had opened correspondent accounts for offshore banks. Citibank also
admitted opening correspondent accounts for offshore shell banks with
no physical presence in any jurisdiction.
The report presents ten detailed case histories showing how high risk
foreign banks managed to move billions of dollars through U.S. banks,
including hundreds of millions of dollars in illicit funds associated
with drug trafficking, financial fraud or Internet gambling. In some
cases, the foreign banks were engaged in criminal behavior; in others,
the foreign banks had such poor anti-money laundering controls that
they did not know or appeared not to care whether their clients were
engaged in criminal behavior. Several of the foreign banks operated
well outside the parameters of normal banking practices, without basic
fiscal or administrative controls, account opening procedures or anti-
money laundering safeguards. All had limited resources and staff and
relied heavily upon their U.S. correspondent accounts to conduct
operations, provide client services, and move funds. Most completed
virtually all of their transactions through their correspondent
accounts, making correspondent banking integral to their operations.
The result was that their U.S. correspondent accounts served as a
significant gateway into the U.S. financial system for criminals and
money launderers.
In March 2001, the Subcommittee held hearings on the problem of
international correspondent banking and money laundering. One witness
was a former owner of an offshore bank in the Cayman Islands, John
Mathewson, who pleaded guilty in the United States to conspiracy to
commit money laundering and tax evasion and has spent the past 5 years
helping to prosecute his former clients for tax evasion and other
crimes. Mr. Mathewson testified that he had charged his bank clients
about $5,000 to set up an offshore shell corporation and another $3,000
for an annual corporate management fee, before opening a bank account
for them in the name of the shell corporation. He noted that no one
would pay $8,000 for a bank account in the Cayman Islands when they
could have the same account for free in the United States, unless they
were willing to pay a premium for secrecy. He testified that 95 percent
of his 2,000 clients were U.S. citizens, and he believed that 100
percent of his bank clients were engaged in tax evasion. He
characterized his offshore bank as a ``run-of-the-mill'' operation. He
also said that the Achilles' heel of the offshore banking community is
its dependence upon correspondent banks to do business and that was how
jurisdictions like the United States could take control of the
situation and stop abuses, if we had the political will to do so.
I think we do have that political will, and that's why we are
introducing this bill today. Let me describe some of its key
provisions.
The Money Laundering Abatement Act would add foreign corruption
offenses such as bribery and theft of government funds to the list of
crimes that can trigger a U.S. money laundering prosecution. This
provision would make it clear that corrupt funds are not welcome here,
and that corrupt leaders can expect criminal prosecutions if they try
to stash dirty money in our banks. After all, America can't have it
both ways. We can't condemn corruption abroad, be it officials taking
bribes or looting their treasuries, and then tolerate American banks
profiting off that corruption.
Second, the bill would require U.S. banks and U.S. branches of
foreign banks to exercise enhanced due diligence before opening a
private bank account of $1 million or more for a foreign person, and to
take particular care before opening accounts for foreign government
officials, their close relatives or associates to make sure the funds
are not tainted by corruption. This due diligence provision targets the
greatest money laundering risks that the Subcommittee investigation
identified in the private banking field. While some U.S. banks are
already performing enhanced due diligence reviews, this provision would
put
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that requirement into law and bring U.S. law into alignment with most
other countries engaged in the fight against money laundering.
The Money Laundering Abatement Act would also put an end to some of
the extreme secrecy practices at private banks. For example, if a U.S.
bank or a U.S. branch of a foreign bank opened or managed an account in
the United States for a foreign accountholder, the bill would require
the bank to keep a record in the United States identifying that foreign
accountholder. After all, U.S. banks already keep records of accounts
held by U.S. citizens, and there is no reason to allow U.S. banks to
administer offshore accounts for foreign accountholders with less
openness than other U.S. bank accounts. The bill would also put an end
to the type of secret fund transfers that went on in the Salinas matter
by prohibiting bank clients from independently directing funds to be
deposited into a bank's ``concentration account,'' an administrative
account which merges and processes funds from multiple accounts and
transactions, and by requiring banks to link client names to all client
funds passing through the bank's concentration accounts.
Our bill would also take a number of steps to close the door on money
laundering through U.S. correspondent accounts. First and most
importantly, our bill would bar any U.S. bank or U.S. branch of a
foreign bank from opening a U.S. correspondent account for a foreign
offshore shell bank, which the Subcommittee investigation found to pose
the highest money laundering risks of all foreign banks. Shell banks
are banks that have no physical presence anywhere--no office where
customers can go to conduct banking transactions or where regulators
can go to inspect records and observe bank operations. They also have
no affiliation with any other bank and are not regulated through any
affiliated bank.
The Subcommittee investigation examined four shell banks in detail.
All four were found to be operating far outside the parameters of
normal banking practice, often without paid staff, basic fiscal and
administrative controls, or anti-money laundering safeguards. All four
also largely escaped regulatory oversight. All four used U.S. bank
accounts to transact business and move millions of dollars in suspect
funds associated with drug trafficking, financial fraud, bribe money or
other misconduct.
Let me describe one example from the Subcommittee's investigation.
M.A. Bank was an offshore bank that was licensed in the Cayman Islands,
but had no physical office of its own in any country. In 10 years of
operation, M.A. Bank never underwent an examination by any bank
regulator. Its owners have since admitted that the bank opened accounts
in fictitious names, accepted deposits for unknown persons, allowed
clients to authorize third parties to make large withdrawals, and
manufactured withdrawal slips or receipts on request.
Nevertheless, M.A. Bank was able to open a U.S. correspondent account
at Citibank in New York. M.A. Bank used that account to move hundreds
of millions of dollars for clients in Argentina, including $7.7 million
in illegal drug money. After the Subcommittee staff began investigating
the account, Citibank closed it. After the staff report came out, the
Cayman Islands decided to close the bank, but since the bank had no
office, Cayman regulators at first didn't know where to go. They
eventually sent teams to Uruguay and Argentina to locate bank documents
and take control of bank operations. The Cayman Islands finally closed
the bank a few months ago.
The four shell banks investigated by the Subcommittee are only the
tip of the iceberg. There are hundreds in existence, operating through
correspondent accounts in the United States and around the world.
By nature, shell banks operate in extreme secrecy and are resistant
to regulatory oversight. No one really knows what they are up to other
than their owners. Some jurisdictions known for offshore businesses,
such as Jersey and Guernsey, refuse to license shell banks. Others,
such as the Cayman Islands and the Bahamas, stopped issuing shell bank
licenses several years ago. In addition, both the Cayman Islands and
Bahamas announced that by the end of this year, 2001, all of their
existing shell banks, which together number about 120, must establish a
physical office within their respective jurisdictions, or lose their
license. But other offshore jurisdictions, such as Nauru, Vanuatu and
Montenegro, are continuing to license shell banks. Nauru alone has
licensed about 400.
Here at home, many U.S. banks, such as Bank of America and Chase
Manhattan, will not open correspondent bank accounts for offshore shell
banks as a matter of policy. But other banks, such as Citibank,
continue to do business with offshore shell banks and continue to
expose the U.S. banking system to the money laundering risks they
bring. Our bill would close the door to these money laundering risks.
Foreign shell banks occupy the bottom rung of the banking world, and
they don't deserve a place in the U.S. banking system. It is time to
shut the door to these rogue operators.
In addition to barring offshore shell banks, the bill would require
U.S. banks to exercise enhanced due diligence before opening a
correspondent account for an offshore bank or a bank licensed by a
jurisdiction known for poor anti-money laundering controls. These
foreign banks also expose U.S. banks to high money laundering risks.
Requiring U.S. banks to exercise enhanced due diligence prior to
opening an account for one of these banks would not only help protect
the U.S. banking system from the money laundering risks posed by these
foreign banks, but would also help bring U.S. law into parity with the
anti-money laundering laws of other countries.
Another provision in the bill would address a key weakness in
existing U.S. forfeiture law as applied to correspondent banking, by
making a depositor's funds in a foreign bank's U.S. correspondent
account subject to the same civil forfeiture rules that apply to
depositors' funds in all other U.S. bank accounts. Right now, due to a
quirk in the law, U.S. law enforcement faces a significant and unusual
legal barrier to seizing funds from a correspondent account. Unlike a
regular U.S. bank account, it is not enough for U.S. law enforcement to
show that criminal proceeds were deposited into the correspondent
account; the government must also show that the foreign bank holding
the deposits was somehow part of the wrongdoing.
That's not only a tough job, that can be an impossible job. In many
cases, the foreign bank will not have been part of the wrongdoing, but
that's a strange reason for letting the foreign depositor who was
engaged in the wrongdoing escape forfeiture. And in those cases where
the foreign bank may have been involved, no prosecutor will be able to
allege it in a complaint without first getting the resources needed to
chase the foreign bank abroad.
Take the example of a financial fraud committed by a Nigerian
national against a U.S. victim, a fraud pattern which the U.S. State
Department has identified as affecting many U.S. citizens and
businesses and which consumes U.S. law enforcement resources across the
country. If the Nigerian fraudster deposits the fraud victim's funds in
a personal account at a U.S. bank, U.S. law enforcement can freeze the
funds and litigate the case in court. But if the fraudster instead
deposits the victim's funds in a U.S. correspondent account belonging
to a Nigerian bank at which the Nigerian fraudster does business, U.S.
law enforcement cannot freeze the funds unless it is prepared to show
that the Nigerian bank was involved in the fraud. And what prosecutor
has the resources to travel to Nigeria to investigate a Nigerian bank?
Even when the victim is sitting in the prosecutor's office, and his
funds are still in the United States in a U.S. bank, the prosecutor's
hands are tied unless he or she is willing to take on the Nigerian bank
as well as the Nigerian fraudster. That is one reason so many Nigerian
fraud cases are no longer being prosecuted in this country, because
Nigerian criminals are taking advantage of that quirk in U.S.
forfeiture law to prevent law enforcement from seizing a victim's money
before it is transferred out of the country.
Our bill would eliminate that quirk by placing civil forfeitures of
funds in correspondent accounts on the same footing as forfeitures of
funds in all
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other U.S. accounts. There is just no reason foreign banks should be
shielded from forfeitures when U.S. banks would not be.
The Levin-Grassley bill has a number of other provisions that would
help U.S. law enforcement in the battle against money laundering. They
include giving U.S. courts ``long-arm'' jurisdiction over foreign banks
with U.S. correspondent accounts; expanding the definition of money
laundering to include laundering funds through a foreign bank;
authorizing U.S. prosecutors to use a Federal receiver to find a
criminal defendant's assets, wherever located; and requiring foreign
banks to designate a U.S. resident for service of subpoenas.
These are realistic, practical provisions that could make a real
difference in the fight against money laundering. One state Attorney
General who has reviewed the bill has written that ``there is a serious
need for modernizing and refining the federal money laundering statutes
to thwart the efforts of the criminal element and close the loopholes
they use to their advantage.'' He expresses ``strong support'' for the
bill, explaining that it ``will greatly aid law enforcement'' and
``provide new tools that will assist law enforcement in keeping pace
with the modern money laundering schemes.'' Another state Attorney
General has written that the bill ``would provide much needed relief
from some of the most pressing problems in money laundering enforcement
in the international arena.'' She predicts that the bill's ``effects on
money laundering affecting victims of crime and illegal drug
trafficking would be dramatic.'' She also writes that the ``burdens it
places on the financial institutions are well considered, closely
tailored to the problems, and reasonable in light of the public
benefits involved.''
This country passed its first major anti-money laundering law in
1970, when Congress made clear its desire to not allow U.S. banks to
function as conduits for dirty money. Since then, the world has
experienced an enormous growth in the accumulation of wealth by
individuals around the world, and in the activities of private banks
servicing these clients. At the same time there has been a rapid
increase in offshore activities, with the number of offshore
jurisdictions doubling from about 30 to about 60, and the number of
offshore banks skyrocketing to an estimated worldwide total of 4,000,
including more than 500 shell banks.
At the same time, the Subcommittee investigations have shown that
private and correspondent accounts have become gateways for criminals
to carry on money laundering and other criminal activity in the United
States and to benefit from the safety and soundness of the U.S. banking
industry. U.S. law enforcement needs stronger tools to detect, stop and
prosecute money launderers attempting to use these gateways into the
U.S. banking system. Enacting this legislation would help provide the
tools needed to close those money laundering gateways and curb the
dirty funds seeking entry into the U.S. banking industry.
I ask unanimous consent that letters in support for the bill from the
two State Attorneys General of the States of Massachusetts and Arizona,
as well as a short summary of the bill, and the text of the bill be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1371
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 ``Money Laundering Abatement
Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) money laundering, the process by which proceeds from
criminal activity are disguised as legitimate money, is
contrary to the national interest of the United States,
because it finances crime, undermines the integrity of
international financial systems, impedes the international
fight against corruption and drug trafficking, distorts
economies, and weakens emerging democracies and international
stability;
(2) United States banks are frequently used to launder
dirty money, and private banking, which provides services to
individuals with large deposits, and correspondent banking,
which occurs when 1 bank provides financial services to
another bank, are specific banking sectors which are
particularly vulnerable to money laundering;
(3) private banking is particularly vulnerable to money
laundering by corrupt foreign government officials because
the services provided (offshore accounts, secrecy, and large
international wire transfers) are also key tools used to
launder money;
(4) correspondent banking is vulnerable to money laundering
because United States banks--
(A) often fail to screen and monitor the transactions of
their high-risk foreign bank clients; and
(B) enable the owners and clients of the foreign bank to
get indirect access to the United States banking system when
they would be unlikely to get access directly;
(5) the high-risk foreign bank that currently poses the
greatest money laundering risks in the United States
correspondent banking field is a shell bank, which has no
physical presence in any country, is not affiliated with any
other bank, and is able to evade day-to-day bank regulation;
and
(6) United States anti-money laundering efforts are
currently impeded by outmoded and inadequate statutory
provisions that make United States investigations,
prosecutions and forfeitures more difficult when money
laundering involves foreign persons, foreign banks, or
foreign countries.
(b) Purpose.--The purpose of this Act is to modernize and
strengthen existing Federal laws to combat money laundering,
particularly in the private banking and correspondent banking
fields when money laundering offenses involve foreign
persons, foreign banks, or foreign countries.
SEC. 3. INCLUSION OF FOREIGN CORRUPTION OFFENSES AS MONEY
LAUNDERING CRIMES.
Section 1956(c)(7)(B) of title 18, United States Code, is
amended--
(1) in clause (ii), by striking ``or destruction of
property by means of explosive or fire'' and inserting
``destruction of property by means of explosive or fire, or a
crime of violence (as defined in section 16)'';
(2) in clause (iii), by striking ``1978'' and inserting
``1978)''; and
(3) by adding at the end the following:
``(iv) fraud, or any scheme or attempt to defraud, against
that foreign nation or an entity of that foreign nation;
``(v) bribery of a public official, or the
misappropriation, theft, or embezzlement of public funds by
or for the benefit of a public official;
``(vi) smuggling or export control violations involving--
``(I) an item controlled on the United States Munitions
List established under section 38 of the Arms Export Control
Act (22 U.S.C. 2778); or
``(II) technologies with military applications controlled
on any control list established under the Export
Administration Act of 1979 (50 U.S.C. App. 2401 et seq.) or
any successor statute;
``(vii) an offense with respect to which the United States
would be obligated by a multilateral treaty, either to
extradite the alleged offender or to submit the case for
prosecution, if the offender were found within the territory
of the United States; or
``(viii) the misuse of funds of, or provided by, the
International Monetary Fund in contravention of the Articles
of Agreement of the Fund or the misuse of funds of, or
provided by, any other international financial institution
(as defined in section 1701(c)(2) of the International
Financial Institutions Act (22 U.S.C. 262r(c)(2)) in
contravention of any treaty or other international agreement
to which the United States is a party, including any articles
of agreement of the members of the international financial
institution;''.
SEC. 4. ANTI-MONEY LAUNDERING MEASURES FOR UNITED STATES BANK
ACCOUNTS INVOLVING FOREIGN PERSONS.
(a) Requirements Relating to United States Bank Accounts
Involving Foreign Persons.--Subchapter II of chapter 53 of
title 31, United States Code, is amended by inserting after
section 5318 the following:
``Sec. 5318A. Requirements relating to United States bank
accounts involving foreign persons
``(a) Definitions.--
``(1) In general.--In this section, the following
definitions shall apply:
``(A) Account.--The term `account'--
``(i) means a formal banking or business relationship
established to provide regular services, dealings, or
financial transactions; and
``(ii) includes a demand deposit, savings deposit, or other
transaction or asset account, and a credit account or other
extension of credit.
``(B) Branch or agency of a foreign bank.--The term `branch
or agency of a foreign bank' has the meanings given those
terms in section 1 of the International Banking Act of 1978
(12 U.S.C. 3101).
``(C) Correspondent account.--The term `correspondent
account' means an account established for a depository
institution, credit union, or foreign bank.
``(D) Correspondent bank.--The term `correspondent bank'
means a depository institution, credit union, or foreign bank
that establishes a correspondent account for and provides
banking services to a depository institution, credit union,
or foreign bank.
``(E) Covered financial institution.--The term `covered
financial institution' means--
``(i) a depository institution;
``(ii) a credit union; and
``(iii) a branch or agency of a foreign bank.
``(F) Credit union.--The term `credit union' means any
insured credit union, as
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defined in section 101 of the Federal Credit Union Act (12
U.S.C. 1752), or any credit union that is eligible to make
application to become an insured credit union pursuant to
section 201 of the Federal Credit Union Act (12 U.S.C. 1781).
``(G) Depository institution.--The term `depository
institution' has the same meaning as in section 3 of the
Federal Deposit Insurance Act (12 U.S.C. 1813).
``(H) Foreign bank.--The term `foreign bank' has the same
meaning as in section 1 of the International Banking Act of
1978 (12 U.S.C. 3101).
``(I) Foreign country.--The term `foreign country' has the
same meaning as in section 1 of the International Banking Act
of 1978 (12 U.S.C. 3101).
``(J) Foreign person.--The term `foreign person' means any
foreign organization or any individual resident in a foreign
country or any organization or individual owned or controlled
by such an organization or individual.
``(K) Offshore banking license.--The term `offshore banking
license' means a license to conduct banking activities which,
as a condition of the license, prohibits the licensed entity
from conducting banking activities with the citizens of, or
with the local currency of, the foreign country which issued
the license.
``(L) Private bank account.--The term `private bank
account' means an account (or combination of accounts) that--
``(i) requires a minimum aggregate deposit of funds or
assets in an amount equal to not less than $1,000,000;
``(ii) is established on behalf of 1 or more individuals
who have a direct or beneficial ownership interest in the
account; and
``(iii) is assigned to, administered, or managed in whole
or in part by an employee of a financial institution acting
as a liaison between the institution and the direct or
beneficial owner of the account.
``(2) Other terms.--After consultation with the Board of
Governors of the Federal Reserve System, the Secretary may,
by regulation, order, or otherwise as permitted by law,
define any term that is used in this section and that is not
otherwise defined in this section or section 5312, as the
Secretary deems appropriate.
``(b) United States Bank Accounts With Unidentified Foreign
Owners.--
``(1) Records.--
``(A) In general.--A covered financial institution shall
not establish, maintain, administer, or manage an account in
the United States for a foreign person or a representative of
a foreign person, unless the covered financial institution
maintains in the United States, for each such account, a
record identifying, by a verifiable name and account number,
each individual or entity having a direct or beneficial
ownership interest in the account.
``(B) Publicly traded corporations.--A record required
under subparagraph (A) that identifies an entity, the shares
of which are publicly traded on a stock exchange regulated by
an organization or agency that is a member of and endorses
the principles of the International Organization of
Securities Commissions (in this section referred to as
`publicly traded'), is not required to identify individual
shareholders of the entity.
``(C) Foreign banks.--In the case of a correspondent
account that is established for a foreign bank, the shares of
which are not publicly traded, the record required under
subparagraph (A) shall identify each of the owners of the
foreign bank, and the nature and extent of the ownership
interest of each such owner.
``(2) Complex ownership interests.--The Secretary may, by
regulation, order, or otherwise as permitted by law, further
delineate the information to be maintained in the United
States under paragraph (1)(A), including information for
accounts with multiple, complex, or changing ownership
interests.
``(c) Prohibition on United States Correspondent Accounts
With Foreign Shell Banks.--
``(1) In general.--A covered financial institution shall
not establish, maintain, administer, or manage a
correspondent account in the United States for, or on behalf
of, a foreign bank that does not have a physical presence in
any country.
``(2) Prevention of indirect service to foreign shell
banks.--A covered financial institution shall take reasonable
steps to ensure that any correspondent account established,
maintained, administered, or managed by that covered
financial institution in the United States for a foreign bank
is not being used by that foreign bank to indirectly provide
banking services to another foreign bank that does not have a
physical presence in any country.
``(3) Exception.--Paragraphs (1) and (2) do not prohibit a
covered financial institution from providing a correspondent
account to a foreign bank, if the foreign bank--
``(A) is an affiliate of a depository institution, credit
union, or other foreign bank that maintains a physical
presence in the United States or a foreign country, as
applicable; and
``(B) is subject to supervision by a banking authority in
the country regulating the affiliated depository institution,
credit union, or foreign bank, described in subparagraph (A),
as applicable.
``(4) Definitions.--For purposes of this subsection--
``(A) the term `affiliate' means a foreign bank that is
controlled by or is under common control with a depository
institution, credit union, or foreign bank; and
``(B) the term `physical presence' means a place of
business that--
``(i) is maintained by a foreign bank;
``(ii) is located at a fixed address (other than solely an
electronic address) in a country in which the foreign bank is
authorized to conduct banking activities, at which location
the foreign bank--
``(I) employs 1 or more individuals on a full-time basis;
and
``(II) maintains operating records related to its banking
activities; and
``(iii) is subject to inspection by the banking authority
which licensed the foreign bank to conduct banking
activities.
``(d) Due Diligence for United States Private Bank and
Correspondent Bank Accounts Involving Foreign Persons.--
``(1) In general.--Each covered financial institution that
establishes, maintains, administers, or manages a private
bank account or a correspondent account in the United States
for a foreign person or a representative of a foreign person
shall establish enhanced due diligence policies, procedures,
and controls to prevent, detect, and report possible
instances of money laundering through those accounts.
``(2) Minimum standards.--The enhanced due diligence
policies, procedures, and controls required under paragraph
(1) of this subsection, shall, at a minimum, ensure that the
covered financial institution--
``(A) ascertains the identity of each individual or entity
having a direct or beneficial ownership interest in the
account, and obtains sufficient information about the
background of the individual or entity and the source of
funds deposited into the account as is needed to guard
against money laundering;
``(B) monitors such accounts on an ongoing basis to
prevent, detect, and report possible instances of money
laundering;
``(C) conducts enhanced scrutiny of any private bank
account requested or maintained by, or on behalf of, a senior
foreign political figure, or any immediate family member or
close associate of a senior foreign political figure, to
prevent, detect, and report transactions that may involve the
proceeds of foreign corruption;
``(D) conducts enhanced scrutiny of any correspondent
account requested or maintained by, or on behalf of, a
foreign bank operating--
``(i) under an offshore banking license; or
``(ii) under a banking license issued by a foreign country
that has been designated--
``(I) as noncooperative with international anti-money
laundering principles or procedures by an intergovernmental
group or organization of which the United States is a member;
or
``(II) by the Secretary as warranting special measures due
to money laundering concerns; and
``(E) ascertains, as part of the enhanced scrutiny under
subparagraph (D), whether the foreign bank provides
correspondent accounts to other foreign banks and, if so, the
identity of those foreign banks and related due diligence
information, as appropriate, under paragraph (1).''.
(b) Regulatory Authority.--After consultation with the
Board of Governors of the Federal Reserve System, the
Secretary of the Treasury may, by regulation, order, or
otherwise as permitted by law, take measures that the
Secretary deems appropriate to carry out section 5318A of
title 31, United States Code (as added by this section).
(c) Conforming Amendments.--Section 5312(a) of title 31,
United States Code, is amended--
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following:
``(5) `Secretary' means the Secretary of the Treasury,
except as otherwise provided in this subchapter.''.
(d) Clerical Amendment.--The table of sections for
subchapter II of chapter 53 of title 31, United States Code,
is amended by inserting after the item related to section
5318 the following:
``5318A. Requirements relating to United States bank accounts involving
foreign persons.''.
(e) Effective Date.--Section 5318A of title 31, United
States Code, as added by this section, shall take effect
beginning 180 days after the date of enactment of this Act
with respect to accounts covered by that section that are
opened before, on, or after the date of enactment of this
Act.
SEC. 5. LONG-ARM JURISDICTION OVER FOREIGN MONEY LAUNDERERS.
Section 1956(b) of title 18, United States Code, is amended
by--
(1) redesignating paragraphs (1) and (2) as subparagraphs
(A) and (B), respectively;
(2) inserting ``(1)'' after ``(b)'';
(3) inserting ``, or section 1957'' after ``or (a)(3)'';
and
(4) adding at the end the following:
``(2) For purposes of adjudicating an action filed or
enforcing a penalty ordered under this section, the district
courts shall have jurisdiction over any foreign person,
including any financial institution authorized under the laws
of a foreign country, against whom the action is brought, if
service of process upon the foreign person is made under the
Federal Rules of Civil Procedure or the laws of the country
in which the foreign person is found, and--
[[Page S8947]]
``(A) the foreign person commits an offense under
subsection (a) involving a financial transaction that occurs
in whole or in part in the United States;
``(B) the foreign person converts, to his or her own use,
property in which the United States has an ownership interest
by virtue of the entry of an order of forfeiture by a court
of the United States; or
``(C) the foreign person is a financial institution that
maintains a bank account at a financial institution in the
United States.
``(3) A court, described in paragraph (2), may issue a
pretrial restraining order or take any other action necessary
to ensure that any bank account or other property held by the
defendant in the United States is available to satisfy a
judgment under this section.
``(4) A court, described in paragraph (2), may appoint a
Federal Receiver, in accordance with paragraph (5), to
collect, marshal, and take custody, control, and possession
of all assets of the defendant, wherever located, to satisfy
a judgment under this section or section 981, 982, or 1957,
including an order of restitution to any victim of a
specified unlawful activity.
``(5) A Federal Receiver, described in paragraph (4)--
``(A) may be appointed upon application of a Federal
prosecutor or a Federal or State regulator, by the court
having jurisdiction over the defendant in the case;
``(B) shall be an officer of the court, and the powers of
the Federal Receiver shall include the powers set out in
section 754 of title 28, United States Code; and
``(C) shall have standing equivalent to that of a Federal
prosecutor for the purpose of submitting requests to obtain
information regarding the assets of the defendant--
``(i) from the Financial Crimes Enforcement Network of the
Department of the Treasury; or
``(ii) from a foreign country pursuant to a mutual legal
assistance treaty, multilateral agreement, or other
arrangement for international law enforcement assistance,
provided that such requests are in accordance with the
policies and procedures of the Attorney General.''.
SEC. 6. LAUNDERING MONEY THROUGH A FOREIGN BANK.
Section 1956(c) of title 18, United States Code, is amended
by striking paragraph (6) and inserting the following:
``(6) the term `financial institution' includes--
``(A) any financial institution, as defined in section
5312(a)(2) of title 31, United States Code, or the
regulations promulgated thereunder; and
``(B) any foreign bank, as defined in section 1 of the
International Banking Act of 1978 (12 U.S.C. 3101).''.
SEC. 7. PROHIBITION ON FALSE STATEMENTS TO FINANCIAL
INSTITUTIONS CONCERNING THE IDENTITY OF A
CUSTOMER.
(a) In General.--Chapter 47 of title 18, United States
Code, is amended by inserting after section 1007 the
following:
``Sec. 1008. False statements concerning the identity of
customers of financial institutions
``(a) In General.--Whoever knowingly in any manner--
``(1) falsifies, conceals, or covers up, or attempts to
falsify, conceal, or cover up, the identity of any person in
connection with any transaction with a financial institution;
``(2) makes, or attempts to make, any materially false,
fraudulent, or fictitious statement or representation of the
identity of any person in connection with a transaction with
a financial institution;
``(3) makes or uses, or attempts to make or use, any false
writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or
entry concerning the identity of any person in connection
with a transaction with a financial institution; or
``(4) uses or presents, or attempts to use or present, in
connection with a transaction with a financial institution,
an identification document or means of identification the
possession of which is a violation of section 1028;
shall be fined under this title, imprisoned not more than 5
years, or both.
``(b) Definitions.--In this section, the following
definitions shall apply:
``(1) Financial institution.--The term `financial
institution'--
``(A) has the same meaning as in section 20; and
``(B) in addition, has the same meaning as in section
5312(a)(2) of title 31, United States Code.
``(2) Identification document.--The term `identification
document' has the same meaning as in section 1028(d).
``(3) Means of identification.--The term `means of
identification' has the same meaning as in section
1028(d).''.
(b) Technical and Conforming Amendments.--
(1) Title 18, united states code.--Section 1956(c)(7)(D) of
title 18, United States Code, is amended by striking ``1014
(relating to fraudulent loan'' and inserting ``section 1008
(relating to false statements concerning the identity of
customers of financial institutions), section 1014 (relating
to fraudulent loan''.
(2) Table of sections.--The table of sections for chapter
47 of title 18, United States Code, is amended by inserting
after the item relating to section 1007 the following:
``1008. False statements concerning the identity of customers of
financial institutions.''.
SEC. 8. CONCENTRATION ACCOUNTS AT FINANCIAL INSTITUTIONS.
Section 5318(h) of title 31, United States Code, is amended
by adding at the end the following:
``(3) Concentration accounts.--The Secretary shall issue
regulations under this subsection that govern maintenance of
concentration accounts by financial institutions, in order to
ensure that such accounts are not used to prevent association
of the identity of an individual customer with the movement
of funds of which the customer is the direct or beneficial
owner, which regulations shall, at a minimum--
``(A) prohibit financial institutions from allowing clients
to direct transactions that move their funds into, out of, or
through the concentration accounts of the financial
institution;
``(B) prohibit financial institutions and their employees
from informing customers of the existence of, or the means of
identifying, the concentration accounts of the institution;
and
``(C) require each financial institution to establish
written procedures governing the documentation of all
transactions involving a concentration account, which
procedures shall ensure that, any time a transaction
involving a concentration account commingles funds belonging
to 1 or more customers, the identity of, and specific amount
belonging to, each customer is documented.''.
SEC. 9. CHARGING MONEY LAUNDERING AS A COURSE OF CONDUCT.
Section 1956(h) of title 18, United States Code, is amended
by --
(1) inserting ``(1)'' before ``Any person''; and
(2) adding at the end the following:
``(2) Any person who commits multiple violations of this
section or section 1957 that are part of the same scheme or
continuing course of conduct may be charged, at the election
of the Government, in a single count in an indictment or
information.''.
SEC. 10. FUNGIBLE PROPERTY IN BANK ACCOUNTS.
(a) In General.--Section 984 of title 18, United States
Code, is amended by striking subsection (b) and inserting the
following:
``(b) The provisions of this section may be invoked only if
the action for forfeiture was commenced by the seizure or
restraint of the property, or by the filing of a complaint,
within 2 years of the offense that is the basis for the
forfeiture.''.
(b) Application.--The amendment made by this section shall
apply to any offense committed on or after the date which is
2 years before the date of enactment of this Act.
SEC. 11. FORFEITURE OF FUNDS IN UNITED STATES INTERBANK
ACCOUNTS.
(a) Forfeiture From United States Interbank Account.--
Section 981 of title 18, United States Code, is amended by
adding at the end the following:
``(k) Interbank Accounts.--
``(1) In general.--For the purpose of a forfeiture under
this section or under the Controlled Substances Act (21
U.S.C. 801 et seq.), if funds are deposited into an account
at a foreign bank, and that foreign bank has an interbank
account in the United States with a covered financial
institution (as defined in section 5318A of title 31), the
funds shall be deemed to have been deposited into the
interbank account in the United States, and any restraining
order, seizure warrant, or arrest warrant in rem regarding
the funds may be served on the covered financial institution,
and funds in the interbank account, up to the value of the
funds deposited into the account at the foreign bank, may be
restrained, seized, or arrested.
``(2) No requirement for government to trace funds.--If a
forfeiture action is brought against funds that are
restrained, seized, or arrested under paragraph (1), it shall
not be necessary for the Government to establish that the
funds are directly traceable to the funds that were deposited
into the foreign bank, nor shall it be necessary for the
Government to rely on the application of section 984.
``(3) Claims brought by owner of the funds.--If a
forfeiture action is instituted against funds restrained,
seized, or arrested under paragraph (1), the owner of the
funds deposited into the account at the foreign bank may
contest the forfeiture by filing a claim under section 983.
``(4) Definitions.--For purposes of this subsection, the
following definitions shall apply:
``(A) Interbank account.--The term `interbank account' has
the same meaning as in section 984(c)(2)(B).
``(B) Owner.--
``(i) In general.--Except as provided in clause (ii), the
term `owner'--
``(I) has the same meaning as in section 983(d)(6); and
``(II) does not include any foreign bank or other financial
institution acting as an intermediary in the transfer of
funds into the interbank account and having no ownership
interest in the funds sought to be forfeited.
``(ii) Exception.--The foreign bank may be considered the
`owner' of the funds (and no other person shall qualify as
the owner of such funds) only if--
``(I) the basis for the forfeiture action is wrongdoing
committed by the foreign bank; or
``(II) the foreign bank establishes, by a preponderance of
the evidence, that prior to the restraint, seizure, or arrest
of the funds, the foreign bank had discharged all or part of
its
[[Page S8948]]
obligation to the prior owner of the funds, in which case the
foreign bank shall be deemed the owner of the funds to the
extent of such discharged obligation.''.
(b) Bank Records.--Section 5318 of title 31, United States
Code, is amended by adding at the end the following:
``(i) Bank Records Related to Anti-Money Laundering
Programs.--
``(1) Definitions.--For purposes of this subsection, the
following definitions shall apply:
``(A) Appropriate federal banking agency.--The term
`appropriate Federal banking agency' has the same meaning as
in section 3 of the Federal Deposit Insurance Act (12 U.S.C.
1813).
``(B) Incorporated terms.--The terms `correspondent
account', `covered financial institution', and `foreign bank'
have the same meanings as in section 5318A.
``(2) 48-hour rule.--Not later than 48 hours after
receiving a request by an appropriate Federal banking agency
for information related to anti-money laundering compliance
by a covered financial institution or a customer of such
institution, a covered financial institution shall provide to
the appropriate Federal banking agency, or make available at
a location specified by the representative of the appropriate
Federal banking agency, information and account documentation
for any account opened, maintained, administered or managed
in the United States by the covered financial institution.
``(3) Foreign bank records.--
``(A) Summons or subpoena of records.--
``(i) In general.--The Secretary or the Attorney General
may issue a summons or subpoena to any foreign bank that
maintains a correspondent account in the United States and
request records related to such correspondent account.
``(ii) Service of summons or subpoena.--A summons or
subpoena referred to in clause (i) may be served on the
foreign bank in the United States if the foreign bank has a
representative in the United States, or in a foreign country
pursuant to any mutual legal assistance treaty, multilateral
agreement, or other request for international law enforcement
assistance.
``(B) Acceptance of service.--
``(i) Maintaining records in the united states.--Any
covered financial institution which maintains a correspondent
account in the United States for a foreign bank shall
maintain records in the United States identifying the owners
of such foreign bank and the name and address of a person who
resides in the United States and is authorized to accept
service of legal process for records regarding the
correspondent account.
``(ii) Law enforcement request.--Upon receipt of a written
request from a Federal law enforcement officer for
information required to be maintained under this paragraph,
the covered financial institution shall provide the
information to the requesting officer not later than 7 days
after receipt of the request.
``(C) Termination of correspondent relationship.--
``(i) Termination upon receipt of notice.--A covered
financial institution shall terminate any correspondent
relationship with a foreign bank not later than 10 days after
receipt of written notice from the Secretary or the Attorney
General that the foreign bank has failed--
``(I) to comply with a summons or subpoena issued under
subparagraph (A); or
``(II) to initiate proceedings in a United States court
contesting such summons or subpoena.
``(ii) Limitation on liability.--A covered financial
institution shall not be liable to any person in any court or
arbitration proceeding for terminating a correspondent
relationship in accordance with this subsection.
``(iii) Failure to terminate relationship.--Failure to
terminate a correspondent relationship in accordance with
this subsection shall render the covered financial
institution liable for a civil penalty of up to $10,000 per
day until the correspondent relationship is so terminated.''.
(c) Authority To Order Convicted Criminal To Return
Property Located Abroad.--
(1) Forfeiture of substitute property.--Section 413 of the
Controlled Substances Act (21 U.S.C. 853) is amended by
striking subsection (p) and inserting the following:
``(p) Forfeiture of Substitute Property.--
``(1) In general.--Paragraph (2) of this subsection shall
apply, if any property described in subsection (a), as a
result of any act or omission of the defendant--
``(A) cannot be located upon the exercise of due diligence;
``(B) has been transferred or sold to, or deposited with, a
third party;
``(C) has been placed beyond the jurisdiction of the court;
``(D) has been substantially diminished in value; or
``(E) has been commingled with other property which cannot
be divided without difficulty.
``(2) Substitute property.--In any case described in any of
subparagraphs (A) through (E) of paragraph (1), the court
shall order the forfeiture of any other property of the
defendant, up to the value of any property described in
subparagraphs (A) through (E) of paragraph (1), as
applicable.
``(3) Return of property to jurisdiction.--In the case of
property described in paragraph (1)(C), the court may, in
addition to any other action authorized by this subsection,
order the defendant to return the property to the
jurisdiction of the court so that the property may be seized
and forfeited.''.
(2) Protective orders.--Section 413(e) of the Controlled
Substances Act (21 U.S.C. 853(e)) is amended by adding at the
end the following:
``(4) Order to repatriate and deposit.--
``(A) In general.--Pursuant to its authority to enter a
pretrial restraining order under this section, including its
authority to restrain any property forfeitable as substitute
assets, the court may order a defendant to repatriate any
property that may be seized and forfeited, and to deposit
that property pending trial in the registry of the court, or
with the United States Marshals Service or the Secretary of
the Treasury, in an interest-bearing account, if appropriate.
``(B) Failure to comply.--Failure to comply with an order
under this subsection, or an order to repatriate property
under subsection (p), shall be punishable as a civil or
criminal contempt of court, and may also result in an
enhancement of the sentence of the defendant under the
obstruction of justice provision of the Federal Sentencing
Guidelines.''.
SEC. 12. EFFECTIVE DATE.
Except as otherwise provided in this Act, this Act, and the
amendments made by this Act, shall take effect 90 days after
the date of enactment of this Act.
____
Summary of Money Laundering Abatement Act
Foreign Corruption. Expands the list of foreign crimes
triggering a U.S. money laundering offense to include foreign
corruption offenses such as bribery and misappropriation of
government funds.
Unidentified Foreign Accountholders. Requires U.S. banks
and U.S. branches of foreign banks opening or managing a bank
account in the United States for a foreign person to keep a
record in the United States identifying the account owner.
Foreign Shell Banks. Bars U.S. banks and U.S. branches of
foreign banks from providing direct or indirect banking
services to foreign shell banks that have no physical
presence in any country and no bank affiliation.
Foreign Private Bank and Correspondent Accounts. Requires
U.S. banks and U.S. branches of foreign banks that open a
private bank account with $1 million or more for a foreign
person, or a correspondent account for an offshore bank or
foreign bank in a country posing high money laundering risks,
to conduct enhanced due diligence reviews of those accounts
to guard against money laundering.
Foreign Bank Forfeitures. Modifies forfeiture rules for
foreign banks' correspondent accounts by making a depositor's
funds in a foreign bank's U.S. correspondent account subject
to the same civil forfeiture rules that apply to depositors'
funds in other U.S. bank accounts.
Additional Measures Targeting Foreign Money Laundering.
Gives U.S. courts ``long-arm'' jurisdiction over foreign
persons committing money laundering offenses in the United
States, over foreign banks opening U.S. bank accounts, and
over foreign persons seizing assets ordered forfeited by a
U.S. court.
Expands the definition of money laundering to include
laundering funds through a foreign bank.
Authorizes U.S. courts to order a convicted criminal to
return property located abroad and, in civil forfeiture
proceedings, to order a defendant to return such property
pending a civil trial on the merits. Authorizes U.S.
prosecutors to use a court-appointed Federal Receiver to find
a criminal defendant's assets, wherever located.
Authorizes Federal law enforcement to subpoena a foreign
bank with a U.S. correspondent account for account records,
and ask the U.S. correspondent bank to identify a U.S.
resident who can accept the subpoena. Requires the U.S.
correspondent bank, if it receives government notice that the
foreign bank refuses to comply or contest the subpoena in
court, to close the foreign bank's account.
Other measures would make it a Federal crime to knowingly
falsify a bank customer's true identity; bar bank clients
from anonymously directing funds through a bank's general
administrative or ``concentration'' accounts; extend the
statute of limitations for civil forfeiture proceedings;
simplify pleading requirements for money laundering
indictments; and require banks to provide prompt responses to
regulatory requests for anti-money laundering information.
____
The Commonwealth of Massachusetts, Office of the Attorney
General,
Boston, MA, August 1, 2001.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Dear Senator Levin: This letter is to express my strong
support for the Money Laundering Abatement Act. As I am sure
you are aware, money laundering has become increasingly
prevalent in recent years. As law enforcement has worked to
curb the illegal laundering of funds, the criminal element
has become more sophisticated and focused in its efforts to
evade the grasp of the law. Specifically, money launderers
are taking advantage of foreign shell banks, and banks in
jurisdictions with weak money laundering controls to hide
their ill-gotten gains.
[[Page S8949]]
At this juncture, there is a serious need for modernizing
and redefining the Federal money laundering statutes to
thwart the efforts of the criminal element and close the
loopholes they use to their advantage. The money laundering
business has taken advantage of its ability under current law
to use foreign banks, largely without negative consequences.
This is an issue that must be addressed on the Federal level
because of its international element. Moreover, in the
Commonwealth of Massachusetts, there is no state level money
laundering legislation. As a result, we rely on Federal/State
law enforcement partnership to eradicate money laundering.
The only hope for eliminating international money laundering
ties within our State lies with the United States Congress. I
encourage the Congress to take the necessary steps to assist
State and Federal law enforcement in their continuing efforts
to control the illegal laundering of funds.
The Money Laundering Abatement Act is an important step in
that process. Among many useful provisions, the Act prohibits
United States banks from providing services to foreign shell
banks that have no physical presence in any country, and as a
result, are easily used in the laundering of illegal funds.
In addition, the legislation provides for enhanced due
diligence procedures by United States banks which will at the
very least detect money laundering, and will also undoubtedly
deter it in the first place. Further, the Act makes it a
federal crime to knowingly falsify a bank customer's true
identity, which will make tracing of funds immeasurably
easier. In addition to these few provisions that I have
mentioned, the Act contains many other measures that will
greatly aid law enforcement in its mission.
I strongly support your efforts to assist state and federal
law enforcement in their money laundering control efforts
through the Money Laundering Abatement Act. The legislation
strengthens the existing anti-money laundering structure and
provides new tools that will assist law enforcement in
keeping pace with the modern money laundering schemes. Good
luck in your efforts to pass this vital legislation.
Sincerely,
Thomas F. Reilly.
____
State of Arizona,
Office of the Attorney General,
Phoenix, AZ, August 2, 2001.
Hon. Carl Levin,
U.S. Senate, Washington, DC.
Hon. Chuck Grassley,
U.S. Senate, Washington, DC.
Dear Senators Levin and Grassley: I write to express my
views on the Money Laundering Abatement Act you are planning
to introduce soon. This bill would provide much needed relief
from some of the most pressing problems in money laundering
enforcement in the internation arena. The burdens it places
on the financial institutions are well considered, closely
tailored to the problems, and reasonable in light of the
public benefits involved.
The bill focuses on the structural arrangements that allow
major money launderers to operate. These include the use of
shell banks and foreign accounts, abuse of private banking,
evasion of law enforcement efforts to acquire necessary
records, and of safe foreign havens for criminal proceeds.
The approach is very encouraging, because efforts to limit
the abuse of these international money laundering tools and
techniques must come from Congress rather than the state
legislatures, and because such measures attack money
laundering at a deeper and more lasting level than simpler
measures.
The focus on structural matters means that this bill's
effects on cases actually prosecuted by state attorneys
general are a relatively small part of the substantial
effects its passage would have on money laundering as a
whole. Nevertheless, its effects on money laundering
affecting victims of crime and illegal drug trafficking would
be dramatic. I will use two exmples from my Office's present
money lauderning efforts
My Office initiated a program to combat so-called ``prime
bank fraud'' in 1996, and continued to focus on these cases.
Some years ago, the International Chamber of Commerce
estimated that over $10 million per day is invested in this
wholly fraudulent investment scam. The ``PBI'' business has
grown substantially since then. To date, my Office has
recovered over $46 million in these cases, directly and in
concert with U.S. Attorneys and SEC. Prime bank fraudsters
rely heavily on the money movement and concealment techniques
that this bill would address, particularly foreign bank
accounts, shell banks, accounts in false identities, movement
of funds through ``concentration'' accounts, and impunity
from efforts to repatriate stolen funds. One of our targets
was sentenced recently in federal court to over eight years
in prison and ordered to make restitution of over $9 million,
but without the tools provided in this bill, there is little
hope that the victims will ever see anything that was not
seized for forfeiture in the early stages of the
investigation.
My Office is now engaged in a program to control the
laundering of funds through the money transmitters in
Arizona, as part of the much larger problem of illegal money
movement to and through the Southwest border region. This
mechanism is a major facilitator of the drug smuggling
operations. Foreign bank accounts and correspondence
accounts, immunity from U.S. forfeitures, and false ownership
are significant barriers to successful control of money
laundering in the Southwest.
Your bill is an example of the immense value of
institutions like the Permanent Subcommittee of
Investigations, because this type of bill requires a deeper
understanding of the issues that come from long term
inquiries by professional staff. We who are involved in state
level money laundering control efforts should be particularly
supportive of such long term strategies because they are most
important to the quality of life of our citizens.
I commend your efforts for introducing this important
legislation and will assist you in anyway I can to gain its
passage.
Yours very truly,
Janet Napolitano,
Attorney General.
______
By Mr. BINGAMAN (for himself and Mr. Reid):
S. 1374. A bill to provide for a study of the effects of hydraulic
fracturing on underground drinking water sources; to the Committee on
Environment and Public Works.
Mr. BINGAMAN. Mr. President, today I introduce, along with the senior
Senator from Nevada, very important legislation to remedy an
unnecessary impediment to natural gas production.
In 1997, the Eleventh Circuit ruled that hydraulic fracturing, a
process for stimulating development in certain types of gas wells,
constituted as ``underground injection'' under the Safe Drinking Water
Act. As such, the State of Alabama was required to establish standards
by which all hydraulic fracturing operations associated with natural
gas development would be required to obtain a permit under the Safe
Drinking Water Act. This is an expensive and time consuming process,
and one that appears unnecessary for protection of underground sources
of drinking water.
The Environmental Protection Agency argued before the Eleventh
Circuit that hydraulic fracturing did not pose a threat to underground
sources of drinking water, and should not be subject to regulation
under the Safe Drinking Water Act. The Eleventh Circuit did not find
that hydraulic fracturing in fact threatened underground sources of
drinking water. Instead, the Court found only that, as written, the
definition of ``underground injection'' under the Safe Drinking Water
Act included the process of hydraulic fracturing.
Natural gas, including gas from coalbed methane and other
unconventional source, is becoming an increasingly important energy
source for the United States. It is a clean burning, domestically
produced resource, the increased production of which will both enhance
our energy security and help us address the problem of global warming.
Protection of drinking water is also an issue of the highest
priority. However, it appears that the situation created by the
Eleventh Circuit's decision is not one that addresses protection of
underground sources of drinking water, because the Court did not find
any harm to drinking water associated with groundwater production.
Instead, this appears to be a situation where a technical reading of a
statute creates expensive permitting requirements not associated with a
real on-the-ground need.
The legislation introduced by myself and Senator Reid will require
the EPA, in consultation with the Secretary of the Interior, the
Secretary of Energy, the Groundwater Protection Council, affected
States, and other entities, as appropriate, to conduct a study on any
impacts from hydraulic fracturing on underground sources of drinking
water.
If the Administration determines that hydraulic fracturing endangers
underground sources of drinking water, the Administrator shall regulate
it under the Safe Drinking Water Act.
If, however, the Administrator determines that hydraulic fracturing
will not endangered underground sources of drinking water, the
Administrator shall not regulate it under the Safe Drinking Water Act.
In that case, States, including the State of Alabama, shall likewise
not be required to regulate hydraulic fracturing as an underground
injection under the Safe Drinking Water Act.
Our bill addresses regulation under section 1421 of the Safe Drinking
Water Act, 42 U.S.C. 300h. Under current law, States are entitled to
make a showing under section 1425 of the Safe Drinking Water Act, 42
U.S.C. 300H-4, that for certain oil and gas operations, the State
regulations satisfy the statutory
[[Page S8950]]
requirements of the Safe Drinking Water Act and the State will
therefore not be required to promulgate regulations under section 1422
of the Safe Drinking Water Act.
It is our intention that the provisions of Section 1425 apply to
hydraulic fracturing operations, and it is our understanding that this
is the status of current law. This issue is currently being litigated
before the Eleventh Circuit. Should the Eleventh Circuit decide
otherwise, we will address the issue as appropriate at that time.
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. 1374
Be it enacted by the Senate and the House of
Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This act may be cited as the ``Hydraulic Fracturing Act''.
SEC. 2. HYDRAULIC FRACTURING.
Section 1421 of the Safe Drinking Water Act (42 U.S.C.
Sec. 300h) is amended by adding at the end the following:
``(e) Hydraulic Fracturing for Oil and Gas Production.--
``(1) Study of the effects of hydraulic fracturing.--
``(A) In general.--Not later than 24 months after the date
of enactment of this subsection, the Administrator shall
complete a study of the known and potential effects on
underground drinking water sources of hydraulic fracturing,
including the effects of hydraulic fracturing on underground
drinking water sources on a nationwide basis, and within
specific regions, states, or portions of states.
``(B) Consultation.--In planning and conducting the study,
the Administrator shall consult with the Secretary of the
Interior, the Secretary of Energy, the Ground Water
Protection Council, affected States, and, as appropriate,
representatives of environmental, industry, academic,
scientific, public health, and other relevant organizations.
Such study may be accomplished in conjunction with other
ongoing studies related to the effects of oil and gas
production on groundwater resources.
``(C) Study elements.--The study conducted under
subparagraph (A) shall, at a minimum, examine and make
findings as to whether--
``(i) such hydraulic fracturing has, or will, endanger (as
defined under subsection (d)(2)) underground drinking water
sources, including those sources within specific regions,
states or portions of states;
``(ii) there are specific methods, practices, or
hydrogeologic circumstances in which hydraulic fracturing
has, or will, endanger underground drinking water sources;
and
``(iii) whether there are any precautionary actions that
may reduce or eliminate any such endangerment.
``(2) Independent scientific review.--
``(A) In general.--Not later than 2 months after the study
under paragraph (1) is completed, the Administrator shall
enter into an appropriate agreement with the National Academy
of Sciences to have the Academy review the conclusions of the
study.
``(B) Report.--Not later than 9 months after entering into
an appropriate agreement with the Administrator, the National
Academy of Sciences shall report to the Administrator, and
the Committee on Energy and Commerce of the House of
Representatives and the Committee on Environment and Public
Works of the Senate, on the--
``(i) findings related to the study conducted by the
Administrator under paragraph (1); and
``(ii) recommendations, if any, for modifying the findings
of the study.
``(3) Regulatory determination.--
``(A) In general.--Not later than 6 months after receiving
the National Academy of Sciences report under paragraph (2),
the Administrator shall determine, after informal public
hearings and public notice and opportunity for comment, and
based on information developed or accumulated in connection
with the study required under paragraph (1) and the National
Academy of Sciences report under paragraph (2), either:
``(i) that regulation of hydraulic fracturing under this
part is necessary to ensure that underground sources of
drinking water will not be endangered on a nationwide basis,
or within a specific region, state or portions of a state; or
``(ii) that regulation described under clause (i) is
unnecessary.
``(B) Publication of determination.--The Administrator
shall publish the determination in the Federal Register,
accompanied by an explanation and the reasons for it.
``(4) Promulgation of regulations.
``(A) Regulation necessary.--If the Administrator
determines under paragraph (3) that regulation of hydraulic
fracturing under this part is necessary to ensure that
hydraulic fracturing does not endanger underground drinking
water sources on a nationwide basis, or within a specific
region, State or portions of a State, the Administrator
shall, within 6 months after issuance of that determination,
and after public notice and opportunity for comment,
promulgate regulations under section 1421 (42 U.S.C.
Sec. 300h) to ensure that hydraulic fracturing will not
endanger such underground sources of drinking water.
``(B) Regulation unnecessary.--The Administrator shall not
promulgate regulations for hydraulic fracturing under this
part unless the Administrator determines under paragraph (3)
that such regulations are necessary.
``(C) Existing regulations.--A determination by the
Administrator under paragraph (3) that regulation is
unnecessary will relieve states from any further obligation
to regulate hydraulic fracturing as an underground injection
under this part.
``(5) Definition of hydraulic fracturing.--For purposes of
this subsection, the term ``hydraulic fracturing'' means the
process of creating a fracture in a reservoir rock, and
injecting fluids and propping agents, for the purposes of
reservoir stimulation related to oil and gas production
activities.
``(6) Savings.--Nothing in this subsection shall in any way
limit the authorities of the Administrator under section 1431
(42 U.S.C. 300i).''.
______
By Mr. NELSON of Florida:
S. 1376. A bill to amend part C of title XVIII of the Social Security
Act to ensure that Medicare + Choice eligible individuals have
sufficient time to consider information and to make an informed choice
regarding enrollment in a Medicare + Choice plan; to the Committee on
Finance.
Mr. NELSON of Florida. Mr. President, I rise today to introduce the
Medicare Beneficiary Information Act. It is vital that Medicare +
Choice participants receive plan information in a timely, appropriate
manner.
Under the Social Security Act, HMOs participating in the Medicare +
Choice program are required to submit all of their plan information,
including the type, cost and scope of benefits they intend to offer, by
July 1st of each year. Upon receiving this information, the Secretary
of HHS is required to prepare a booklet that compares the benefits and
costs of each plan, and disseminate the information to seniors prior to
the open enrollment season. The enrollment season is November 1st
through November 30th.
The July 1st deadline was imposed so that seniors would have ample
opportunity to read the materials and to make an informed decision
before selecting a health plan.
Last month, at the request of the HMO industry, Secretary Thompson
extended the deadline until September 15th. As a result, Medicare
beneficiaries will have little time to review the comparative
information before the enrollment period. In response to these
concerns, the Secretary indicated that the information would be posted
on the Internet by October 15th.
Senior citizens in many cases do not have access to the Internet. If
information is not sent in a timely manner, it will be extremely
difficult for seniors, especially low income seniors, to make informed
choices about their health plan. As a result, they will have little
time to find new health care coverage if their HMO sharply raises
premiums and fees, reduces benefits or pulls out of Medicare.
Consequently, seniors may be forced to accept whatever changes the HMOs
impose or run the risk of having gaps in their coverage should they
choose to switch plans.
This bill states that, effective 2002, HMO's are required to submit,
complete binding information to the Secretary of Health and Human
Services. It also requires that the information be sent to
beneficiaries at least 45 days before the beginning of the open
enrollment period. It further requires all comparative information to
be sent in mail, rather than only being posted on the Internet. This
will ensure that seniors are receiving the information necessary to
make educated informed decisions about their health plan.
By Mr. SMITH of Oregon:
S. 1377. A bill to require the Attorney General to establish an
office in the Department of Justice to monitor acts of international
terrorism alleged to have been committed by Palestinian individuals or
individuals acting on behalf of Palestinian organizations and to carry
out certain other related activities; to the Committee on the
Judiciary.
Mr. SMITH of Oregon. Mr. President, almost everyday we hear about new
Palestinian violence in Israel and all too often, American citizens are
among the victims. Earlier this year, Mrs. Sarah Blaustein, of Long
Island, New York, was murdered in a drive-by shooting by Palestinian
terrorists south of Jerusalem. A few weeks before
[[Page S8951]]
that, a 13-year old boy from Maryland, Jacob ``Koby'' Mandell, was
savagely beaten and tortured to death by Palestinian terrorists.
Eighteen American citizens have been killed by Palestinian terrorists
since the signing of the Oslo accords in September 1993, and six of
them were killed during the current wave of violence that began last
autumn.
Of course, Americans are occasionally the victims of terrorism all
over the world, not just in Israel. But what makes the American victims
in Israel unique is that while our government does everything it can to
capture the terrorists who harm Americans elsewhere around the world,
it takes a completely different approach when it comes to Palestinian
terrorists.
Our State Department offers multi-million dollar rewards for
information leading to the capture of terrorists who have killed
Americans around the world--but it has never offered such a reward to
help catch terrorists who are being sheltered by Arafat. The State
Department maintains a web site www.dssrewards.net for its ``Heroes''
program, where it posts the rewards to help capture terrorists.
The time has come to take this vital issue out of the State
Department's hands and put it back where it belongs, in the Department
of Justice. This should not be a political issue. When a matter of
justice is at stake, the decision should be made by the legal
authorities whose responsibility it is to pursue justice, not politics.
This is why today I rise to introduce the Koby Mandell Justice for
American Victims of Terrorism Act of 2000.'' This bill will establish a
special office, within the Department of Justice, the sole purpose of
which will be to facilitate the capture of Palestinian terrorists
involved in attacks in which American Citizens were harmed. The bill
will: Collect evidence against suspected terrorists; offer rewards for
information leading to the capture of these terrorists and maintain
contact with families of victims to update them on the progress of
efforts to capture the terrorists.
In short, this legislation will help ensure that the killers of
Americans will have a sanctuary in the Palestinian Authority
territories. This legislation will advance the cause of justice and it
will put terrorists and their supporters on notice that the United
States government will not stand idly by when our citizens are harmed.
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. 1377
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 ``Koby Mandell Justice for
American Victims of Terrorism Act of 2001''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Since 1948, many United States citizens have been
injured or killed in terrorist attacks committed by
Palestinian individuals and organizations in and outside of
the Middle East.
(2) Under United States law, individuals who commit acts of
international terrorism outside of the United States against
nationals of the United States may be prosecuted for such
acts in the United States.
(3) The United States has taken a special interest and
active role in resolving the Israeli-Palestinian conflict,
including numerous diplomatic efforts to facilitate a
resolution of the conflict and the provision of financial
assistance to Palestinian organizations.
(4) However, despite these diplomatic efforts and financial
assistance, little has been done to apprehend, indict,
prosecute, and convict Palestinian individuals who have
committed terrorist attacks against nationals of the United
States.
SEC. 3. ESTABLISHMENT OF OFFICE IN THE DEPARTMENT OF JUSTICE
TO MONITOR TERRORIST ACTS BY PALESTINIAN
INDIVIDUALS AND ORGANIZATIONS AND CARRY OUT
RELATED ACTIVITIES.
(a) In General.--The Attorney General shall establish
within the Department of Justice an office to carry out the
following activities:
(1) Monitor acts of international terrorism alleged to have
been committed by Palestinian individuals or individuals
acting on behalf of Palestinian organizations.
(2) Collect information against individuals alleged to have
committed acts of international terrorism described in
paragraph (1).
(3) Offer rewards for information on individuals alleged to
have committed acts of international terrorism described in
paragraph (1), including the dissemination of information
relating to such rewards in the Arabic-language media.
(4) Negotiate with the Palestinian Authority or related
entities to obtain financial compensation for nationals of
the United States, or their families, injured or killed by
acts of terrorism described in paragraph (1).
(5) In conjunction with other appropriate Federal
departments and agencies, establish and implement alternative
methods to apprehend, indict, prosecute, and convict
individuals who commit acts of terrorism described in
paragraph (1).
(6) Contact the families of victims of acts of terrorism
described in paragraph (1) and provide updates on the
progress to apprehend, indict, prosecute, and convict the
individuals who commit such acts.
(7) In order to effectively carry out paragraphs (1)
through (6), provide for the permanent stationing of an
appropriate number of United States officials in Israel, in
territory administered by Israel, in territory administered
by the Palestinian Authority, and elsewhere, to the extent
practicable.
(b) Definition.--In this section, the term ``international
terrorism'' has the meaning given such term in section
2331(b) of title 18, United States Code.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
for fiscal year 2002 and each subsequent fiscal year such
sums as may be necessary to carry out this Act.
(b) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under subsection (a) are
authorized to remain available until expended.
______
By Mr. DASCHLE (for himself, Mr. Harkin Mr. Hatch, Mr. Inouye,
Mr. Johnson, and Mr. Reid):
S. 1378. A bill to allow patients access to drugs and medical devices
recommended and provided by health care practitioners under strict
guidelines, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DASCHLE. Mr. President, today I am introducing the Access to
Medical Treatment Act. I am pleased to be joined by Senators Harkin,
Hatch, Inouye, Johnson, and Reid in this effort to increase
individuals' freedom of choice in health care.
Patient choice is a value often articulated in health care debates.
Yet patients often do not have the right to choose potentially life-
saving alternative treatments. I want to thank Berkley Bedell, who
formerly represented the 6th District of Iowa, for making me aware of
the importance of this issue and for assisting in the development of
this bill. This has been a multi-year effort, and he has worked
tirelessly on it. Berkley has experienced first-hand the life-saving
potential of alternative treatments. His story convinced me that our
health care system discourages the use of alternative medicine
treatment and thereby restricts the right of patients to choose.
American consumers have already voted for expanded access to
alternative treatments with their feet and their wallets. A 1997 study
published in the Journal of the American Medical Association, JAMA,
shows that 42 percent of Americans used some kind of alternative
therapy, spending more than $27 billion that year. Americans made more
visits to alternative practitioners than to primary care providers.
According to a 1999 JAMA study, people sought complementary and
alternative medicine not only because they were dissatisfied with
conventional medicine but also because these therapies mirrored their
own values, beliefs and philosophical orientation toward health and
life.
Alternative therapies are rapidly being incorporated into mainstream
medical programs, practice and research. Indeed, at least 75 out of 117
U.S. medical schools offer elective courses in alternative medicine or
include alternative medicine topics in required courses. A 1994 study
in the Journal of Family Practice revealed that more than 60 percent of
doctors from a wide range of specialties recommended alternative
therapies to their patients at least once. The National Institutes of
Health now has a Center for Complementary and Alternative Medicine
where research is underway to expand our knowledge of alternative
therapies and their safe and effective use.
Despite the growing demand for many types of alternative medicine,
some therapies remain unavailable because they have not yet been
approved
[[Page S8952]]
by the FDA. My bill would increase access to treatments that would
normally be regulated by the FDA, but have not yet undergone the
expansive and lengthy process currently required to gain FDA approval.
Given the popularity of alternative medicine among the American public
and its growing acceptance among traditional medical practitioners, it
would seem logical to remove some of the access barriers that consumers
face when seeking certain alternative therapies.
The Access to Medical Treatment Act supports patient choice while
maintaining important patient safeguards. It asserts that individuals,
especially those who face life-threatening afflictions for which
conventional treatments have proven ineffective, should have the option
of trying an alternative treatment. This is a choice rightly made by
the consumer, and not dictated by the Federal Government.
All treatments sanctioned by this Act must be prescribed by an
authorized health care practitioner who has personally examined the
patient. The practitioner must fully disclose all available information
about the safety and effectiveness of any medical treatment, including
questions that remain unanswered because the necessary research has not
been conducted.
The bill carefully restricts the ability of practitioners to
advertise or market unapproved drugs or devices or to profit
financially from prescribing alternative treatment. This provision was
included to ensure that practitioners keep the best interests of
patients in mind and to retain incentives for seeking FDA approval. If
an individual or a company wants to earn a profit from a product, they
would be wise to go through the standard FDA process.
I want to be absolutely clear that this legislation will not
dismantle the FDA, undermine its authority, or appreciably change
current medical practices. It is not meant to attack the FDA or its
approval process. It is meant to complement it. The FDA should, and
would under this legislation, remain solely responsible for protecting
the health of the Nation from unsafe and impure drugs. The heavy
demands and requirements placed upon treatments before they gain FDA
approval are important, and I firmly believe that treatments receiving
the Federal Government's stamp of approval should be proven safe and
effective.
The bill protects patients by requiring practitioners to report any
adverse reaction that could potentially have been caused by an
unapproved drug or medical device. If an adverse reaction is reported,
manufacture and distribution of the drug must cease pending an
investigation. If it is determined that the adverse reaction was caused
by the drug or medical device, as part of a total recall, the Secretary
of the Department of Health and Human Services and the manufacturer
have the duty to inform all health care practitioners to whom the drug
or medical device has been provided.
This legislation will help build a knowledge base regarding
alternative medicine treatments by requiring practitioners to report on
effectiveness. This is critical because current information available
about the effectiveness of many promising treatments is inadequate. The
information generated through this Act will begin to reverse this
information gap, as data are collected and analyzed by the Center for
Complementary and Alternative Medicine at the National Institutes of
Health.
The Access to Medical Treatment Act represents an honest attempt to
focus serious attention on the value of alternative treatments and
overcome current obstacles to their safe development and utilization.
In essence, this legislation addresses the fundamental balance between
two seemingly irreconcilable interests: the protection of patients from
dangerous and ineffective treatments and the preservation of consumers'
freedom to choose alternative therapies. The complexity of this policy
challenge should not discourage us from seeking to solve it. I am
convinced that the public good will be served by a serious attempt to
reconcile these contradictory interests, and I am hopeful the
discussion generated by this legislation will help point the way to its
resolution.
______
By Mr. KENNEDY (for himself and Mr. Hatch):
S. 1379. A bill to amend the Public Health Service Act to establish
an Office of Rare Diseases at the National Institutes of Health, and
for other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. KENNEDY. Mr. President, I am pleased to introduce the Rare
Diseases Act of 2001.
This legislation, in conjunction with companion legislation
introduced by Senator Hatch to amend the orphan drug tax credit,
promises to greatly enhance the prospects for developing new treatments
and diagnostics, and even cures for literally thousands of rare
diseases and disorders.
The Rare Diseases Act provides a statutory authorization for the
existing Office of Rare Diseases at the National Institutes of Health,
NIH, and authorizes regional centers of excellence for rare disease
research and training. The Act also increases the funding for the Food
and Drug Administration's, FDA, Orphan Product Research Grant program,
which has provided vital support for clinical research on new
treatments for rare diseases and disorders.
I am encouraged that, consistent with our legislation, the President
has proposed in fiscal year 2002 to create a network of centers of
excellence for rare diseases. This proposal originated with the NIH, in
recommendations of a Special Emphasis Panel convened to examine the
state of rare disease research. Because the Panel itself was convened
in response to a request of the Senate Appropriations Committee in
1966, it is appropriate that we are today introducing legislation which
represents the fruition of a long, deliberative process involving both
the Congress and the NIH.
It is important to note that Congress has had a longstanding interest
in rare diseases. In 1983, Congress enacted the Orphan Drug Act to
promote the development of treatments for rare diseases and disorders.
Such diseases affect small patient populations, typically smaller than
200,000 individuals in the United States, and include Huntington's
disease, myoclonus, ALS, Lou Gehrig's disease, Tourette syndrome, and
muscular dystrophy. Although each disease may be rare, there are, in
sum, 25 million Americans today who suffer from the six thousand known
rare diseases and disorders.
As an original sponsor of the Orphan Drug Act, I am pleased it has
been a great success, leading to the development of over 220 treatments
for rare diseases and disorders. But the greatest share of credit is
due to the original author of the Act, Congressman Henry Waxman of
California, and to a woman named Abbey Meyers.
During the 1970s, an organization called the National Organization
for Rare Disorders, NORD, was founded by Abbey to provide services and
to lobby on behalf of patients with rare diseases and disorders. It was
Abbey and her organization which were instrumental in pressing Congress
for enactment of legislation to encourage the development of orphan
drugs.
In light of this important history, I am very pleased that the Rare
Diseases Act of 2001 is supported by NORD. And I am also pleased to
join my colleague, Senator Hatch, a champion of research into rare
diseases, in introducing this legislation.
______
By Mr. KERRY (for himself and Mr. Hollings):
S. 1380. A bill to coordinate and expand United States and
international programs for the conservation and protection of North
Atlantic Whales; to the Committee on Commerce, Science, and
Transportation.
Mr. KERRY. Mr. President, as Chairman of the Oceans, Atmosphere and
Fisheries Subcommittee, I rise today to introduce the North Atlantic
Right Whale Recovery Act of 2001. I am pleased to be joined by our
Commerce Committee Chairman, Senator Hollings in this effort. This bill
is designed to improve the management and research activities for right
whales and increase the focus on reducing mortality caused by ship
collisions, entanglement in fishing gear, and other causes. The most
endangered of the great whales, the northern Atlantic right whale has
shown no evidence of recovery since the whaling days of the
[[Page S8953]]
1900s despite full protection from hunting by a League of Nations
agreement since 1935. Today the population of North Atlantic Right
Whales remains at less than 350 animals, although 2001 was a banner
year for reproduction as over 30 calves were born.
The entire Nation has watched with great interest as a team of
experts from a number of organizations including the National Marine
Fisheries Service, the New England Aquarium and the Center for Coastal
Studies has sought to remove the nylon rope that is imbedded in the jaw
of a North Atlantic Right Whale, dubbed ``Churchill''. By all accounts,
unless the rope is removed the whale is likely to die from infections
that are already discoloring the whale's skin. I would like to offer my
sincere appreciation for all of these efforts to date and I hope that
by offering this legislation today that we can refocus our attention on
how to protect these magnificent mammals.
Right whales are at risk of extinction from a number of sources.
These include, ship strikes, the number one source of known right whale
fatalities, entanglement in fishing gear, coastal pollution, habitat
degradation, ocean noise and climate change. This legislation requires
the Secretary of Commerce to institute a North Atlantic Right Whale
Recovery Program, in coordination with the Department of Transportation
and other appropriate Federal agencies, States, the Southeast and
Northeast Northern Atlantic Right Whale Recovery Plan Implementation
Team and the Atlantic Large Whale Take Reduction Team, pursuant to the
authority provided under the Endangered Species Act, the Marine Mammal
Protection Act, and the Magnuson-Stevens Fishery Conservation and
Management Act.
This legislation would require the Secretary of Commerce within 6
months of enactment, to initiate demonstration projects designed to
result in the immediate reductions in North Atlantic right whale
deaths. There are 4 distinct areas that I believe we should be focusing
our attention on. First, we should develop acoustic detection and
tracking technologies to monitor the migration of right whales so that
ships at sea can avoid right whales. Second, we need to continue work
on individual satellite tags for right whales. This is yet another way
that we can track whale migration and alert ships at sea of the
presence of whales and avoid ship strikes. Third, this legislation
would speed up the development of neutrally buoyant line and ``weak
link'' fishing gear, so that we can either avoid having whales become
entangled in the first place or when they do the ``weak links'' break
and they can more easily become disentangled. Finally this legislation
supports research and testing into developing innovative ways to
increase the success of disentanglement efforts.
This legislation allows for the government to provide fishermen
``whale safe'' fishing gear in high use or critical habitat areas. This
is crucial, because once we have developed this ``whale safe'' gear we
need to get it in the water as soon as possible. I believe an
assistance program that is fair to fishermen will be needed and we are
asking the agencies to tell us the potential costs so we can ensure
that the gear can be deployed where needed.
This legislation requires the Secretary of Transportation and
Commerce to develop and implement a comprehensive ship strike avoidance
plan for Right Whales. I am pleased that a draft plan has been issued
this week, but I want to make it clear that a plan must be implemented
by January of 2003. I would like to stress to my colleagues, that by
far the number one source of know right whale mortalities is ship
strikes, and in my opinion we have not done nearly enough to prevent
these lethal ship strikes from happening.
This legislation establishes a right whale research grant program.
This program will establish a peer review process of all innovative
biological and technical projects designed to protect right whales. In
addition to the scientific community, this peer review team will also
be comprised of representatives of the fishing industry and the
maritime transportation industry. It is important that from the very
beginning we have the input of the people who are on the water every
day. Their knowledge and experience is absolutely necessary to
developing innovative practices and techniques to save right whales.
Congress has appropriated over $8 million dollars in the last two
years to protect right whales. I believe that now is the time to
develop a comprehensive plan that spells out what we can do immediately
to better protect these whales and focus our research efforts on
innovative ideas and technologies that can identify whale migrations.
______
By Mrs. FEINSTEIN:
S. 1381. A bill to redesignate the facility of the United States
Postal Service located at 5472 Crenshaw Boulevard in Los Angeles,
California, as the ``Congressman Julian C. Dixon Post Office
Building''; to the Committee on Governmental Affairs.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation
to honor the late Julian Dixon, an esteemed Member of the House of
Representatives from California for more than 20 years.
Julian Dixon lived a full life; highlighted by almost thirty years of
public service. He served in the Army from 1957 to 1960 and in the
California Assembly from 1972 until 1978. Julian was first elected to
the House of Representatives in 1978.
As the representative for the Thirty-Second District of California,
Julian consistently fought to maintain our Nation's commitment to civil
rights and to increase the economic upward mobility of his
constituents. Julian was also chair of the Congressional Black Caucus
and worked tirelessly to establish a memorial to Dr. Martin Luther
King, Jr. here in our Nation's capital.
Julian's legislative work covered myriad issues from intelligence to
defense to congressional ethics. He was the ranking member of the House
Intelligence Committee and a member of the committee that determines
defense appropriations. He used his position on the appropriations
committee to provide Federal aid for communities that were devastated
by base closings and other defense cuts. He also helped secure
emergency funding for damaged businesses after the Northridge
earthquake and the Los Angeles riots.
Julian was not only a great legislator, but also a great human being.
He was a gentleman in every sense of the word who was willing to work
across partisan lines to improve the lives of his constituents and so
many Americans. I was privileged as a member of the Senate
Appropriations committee to work with Mr. Dixon. In this role, Julian
always put California's needs first.
Julian served with passion and distinction. He was a man of the
highest integrity and credibility. I am sure his constituents will be
proud to have a Post Office named in his honor.
Julian Dixon was a man of principle and fairness whose grace and
humility will be sorely missed. I am pleased to honor his memory by
introducing a bill to designate the Post Office at 5472 Crenshaw
Boulevard in Los Angeles as the ``Congressman Julian C. Dixon Post
Office Building.''
______
By Mr. DeWINE (for himself and Ms. Landrieu):
S. 1382. A bill to amend title 11, District of Columbia Code, to
redesignate the Family Division of the Superior Court of the District
of Columbia as the Family Court of the Superior Court, to recruit and
retain trained and experienced judges to serve in the Family Court, to
promote consistency and efficiency in the assignment of judges to the
Family Court and in the consideration of actions and proceedings in the
Family Court, and for other purposes; to the Committee on Governmental
Affairs.
Mr. DeWINE. Mr. President, I rise today to introduce legislation,
along with my friends and colleagues Senator Landrieu and Senator
Levin, that will have a vital impact on children and families in the
District of Columbia. Our bill, the ``District of Columbia Family Court
Act of 2001'' is aimed at guiding the District, as the Superior Court
strives to reform its role in the child welfare system through its
creation of a Family Court.
This legislation takes a very important step forward in helping to
ensure that the best interest of children in contact with the DC child
welfare system are always paramount. In making
[[Page S8954]]
sure that is the case, judges in the system play a key role. I learned
this first-hand nearly thirty years ago when I was serving as an
assistant county prosecutor in Greene County, OH. One of my duties was
to represent the Greene County Children Services in cases where
children were going to be removed from their parents' custody.
I witnessed then that too many of these cases drag on endlessly,
leaving children trapped in temporary foster care placements, which
often entail multiple moves from foster home to foster home to foster
home, for years and years and years. Such multiple placements and lack
of permanency for these kids is abuse in it's own right.
Since being appointed to the District of Columbia Appropriations
Committee, I have made it my personal mission to find financial
solutions for the problems facing DC's foster children. In March,
Representative DeLay and I laid the groundwork for a DC Family Court
Bill that would be bipartisan and effective. In drafting this bill, we
have held numerous hearings, met with child welfare advocates from
across the District, and had countless meetings with the DC Superior
Court Judges.
In particular, I want to thank Chief Judge Rufus King for making
himself available to members of Congress and their staffs and for
appearing before the DC Subcommittee on Appropriations. Judge King has
made reforming the Family Division of the DC Court his number one
priority, and I look forward to working with him in the future to
implement the reforms established by our DC Family Court Bill.
Our legislation includes a number of important reforms that would
ensure that the judicial system protects the children of the District.
First, it would increase the length of judicial terms for judges from
one year for judges already presiding over the Superior Court to three
years. New judges appointed to the Superior Court and then assigned to
the Family Court would have five-year terms. This change would enable
judges to develop an expertise in Family Law.
Second, the bill would create magistrates so that the current backlog
of 4500 permanency cases can be properly and adequately addressed.
These magistrates would be distributed among the judges according to a
transition plan, which must be submitted to Congress within 90 days of
passage of this bill. We want to make sure the court has the
flexibility to deal with these important child welfare issues.
Third, the bill provides the resources for an Integrated Judicial
Information System, IJIS. This would enable the court to track and
properly monitor family cases and would allow all judges and
magistrates to have access to the information necessary to make the
best decisions about placement and child safety.
Fourth, a reform in the bill that I find extremely important is the
One-Judge/One Family provision. This policy would ensure that the same
judge, a judge who knows the history of a family and the child, would
be making the important permanency decisions. This provision is
essential for those hard cases involving abuse and neglect. It ensures
consistency. It ensures safety. And, it just makes sense.
Ultimately, our bill would provide consistency through the One-Judge/
One-Family provision, it would provide safety and security, and it
would provide stability for the children of the District. We need to
give the children in the District's welfare system all of these things.
It is the right thing to do.
I urge my colleagues to join in support of this bill. We must never,
ever lose sight of our responsibility to the children involved. Their
needs and their best interests must always come first. And today, I
believe we are putting children first and taking a step forward on
their behalf.
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. 1382
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 ``District of Columbia Family
Court Act of 2001''.
SEC. 2. REDESIGNATION OF FAMILY DIVISION AS FAMILY COURT OF
THE SUPERIOR COURT.
(a) In General.--Section 11-902, District of Columbia Code,
is amended to read as follows:
``Sec. 11-902. Organization of the court.
``(a) In General.--The Superior Court shall consist of the
following:
``(1) The Civil Division.
``(2) The Criminal Division.
``(3) The Family Court.
``(4) The Probate Division.
``(5) The Tax Division.
``(b) Branches.--The divisions of the Superior Court may be
divided into such branches as the Superior Court may by rule
prescribe.
``(c) Designation of Presiding Judge of Family Court.--The
chief judge of the Superior Court shall designate one of the
judges assigned to the Family Court of the Superior Court to
serve as the presiding judge of the Family Court of the
Superior Court.
``(d) Jurisdiction Described.--The Family Court shall have
original jurisdiction over the actions, applications,
determinations, adjudications, and proceedings described in
section 11-1101.''.
(b) Conforming Amendment to Chapter 9.--Section 11-906(b),
District of Columbia Code, is amended by inserting ``the
Family Court and'' before ``the various divisions''.
(c) Conforming Amendments to Chapter 11.--(1) The heading
for chapter 11 of title 11, District of Columbia, is amended
by striking ``Family Division'' and inserting ``Family
Court''.
(2) The item relating to chapter 11 in the table of
chapters for title 11, District of Columbia, is amended by
striking ``Family Division'' and inserting ``Family Court''.
(d) Conforming Amendments to Title 16.--
(1) Calculation of child support.--Section 16-916.1(o)(6),
District of Columbia Code, is amended by striking ``Family
Division'' and inserting ``Family Court of the Superior
Court''.
(2) Expedited judicial hearing of cases brought before
hearing commissioners.--Section 16-924, District of Columbia
Code, is amended by striking ``Family Division'' each place
it appears in subsections (a) and (f) and inserting ``Family
Court''.
(3) General references to proceedings.--Chapter 23 of title
16, District of Columbia Code, is amended by inserting after
section 16-2301 the following new section:
``Sec. 16-2301.1. References deemed to refer to Family Court
of the Superior Court.
``Any reference in this chapter or any other Federal or
District of Columbia law, Executive order, rule, regulation,
delegation of authority, or any document of or pertaining to
the Family Division of the Superior Court of the District of
Columbia shall be deemed to refer to the Family Court of the
Superior Court of the District of Columbia.''.
(4) Clerical amendment.--The table of sections for
subchapter I of chapter 23 of title 16, District of Columbia,
is amended by inserting after the item relating to section
16-2301 the following new item:
``16-2301.1. References deemed to refer to Family Court of the Superior
Court.''.
SEC. 3. APPOINTMENT AND ASSIGNMENT OF JUDGES; NUMBER AND
QUALIFICATIONS.
(a) Number of Judges for Family Court; Qualifications and
Terms of Service.--Chapter 9 of title 11, District of
Columbia Code, is amended by inserting after section 11-908
the following new section:
``Sec. 11-908A. Special rules regarding assignment and
service of judges of Family Court.
``(a) Number of Judges.--
``(1) In general.--The number of judges serving on the
Family Court of the Superior Court at any time may not be
less than 12 or more than 15.
``(2) Report.--The total number of judges on the Superior
Court may exceed the limit on such judges to the extent
necessary to maintain the requirements of this subsection if
the chief judge of the Superior Court--
``(A) obtains the approval of the Joint Committee on
Judicial Administration; and
``(B) reports to Congress regarding the circumstances that
gave rise to the necessity to exceed the cap.
``(b) Qualifications.--The chief judge may not assign an
individual to serve on the Family Court of the Superior Court
unless--
``(1) the individual has training or expertise in family
law;
``(2) the individual certifies to the chief judge that the
individual intends to serve the full term of service, except
that this paragraph shall not apply with respect to
individuals serving as senior judges under section 11-1504
and individuals serving as temporary judges under section 11-
908;
``(3) the individual certifies to the chief judge that the
individual will participate in the ongoing training programs
carried out for judges of the Family Court under section 11-
1104(c); and
``(4) the individual meets the requirements of section 11-
1732A(b).
``(c) Term of Service.--
``(1) In general.--
``(A) Serving judges.--An individual assigned to serve as a
judge of the Family Court of the Superior Court who is
serving as a judge in the Superior Court on the date of the
enactment of the District of Columbia Family Court Act of
2001 shall serve for a term of not fewer than 3 years as
determined by the chief judge of the Superior Court
(including any consecutive period of service on
[[Page S8955]]
the Family Division of the Superior Court immediately
preceding the date of the enactment of such Act).
``(B) New judges.--An individual assigned to serve as a
judge of the Family Court of the Superior Court who is not
serving as a judge in the Superior Court on the date of the
enactment of the District of Columbia Family Court Act of
2001 shall serve for a term of 5 years.
``(2) Assignment for additional service.--After the term of
service of a judge of the Family Court (as described in
paragraph (1)) expires, at the judge's request the judge may
be assigned for additional service on the Family Court for a
period of such duration (consistent with section 431(c) of
the District of Columbia Home Rule Act) as the chief judge
may provide.
``(3) Permitting service on family court for entire term.--
At the request of the judge, a judge may serve as a judge of
the Family Court for the judge's entire term of service as a
judge of the Superior Court under section 431(c) of the
District of Columbia Home Rule Act.
``(d) Reassignment to Other Divisions.--The chief judge may
reassign a judge of the Family Court to any division of the
Superior Court if the chief judge determines that the judge
is unable, for cause, to continue serving in the Family
Court.''.
(b) Plan for Family Court Transition.--
(1) In general.--Not later than 90 days after the date of
the enactment of this Act, the chief judge of the Superior
Court of the District of Columbia shall prepare and submit to
the President and Congress a transition plan for the Family
Court of the Superior Court, and shall include in the plan
the following:
(A) The chief judge's determination of the role and
function of the presiding judge of the Family Court.
(B) The chief judge's determination of the number of judges
needed to serve on the Family Court.
(C) The chief judge's determination of the number of
magistrate judges of the Family Court needed for appointment
under section 11-1732, District of Columbia Code.
(D) The chief judge's determination of the appropriate
functions of such magistrate judges, together with the
compensation of and other personnel matters pertaining to
such magistrate judges.
(E) A plan for case flow, case management, and staffing
needs (including the needs for both judicial and nonjudicial
personnel) for the Family Court.
(F) A plan for space, equipment, and other physical plant
needs and requirements during the transition, as determined
in consultation with the Administrator of General Services.
(G) An analysis of the success of the use of magistrate
judges under the expedited appointment procedures established
under section 6(d) in reducing the number of pending actions
and proceedings within the jurisdiction of the Family Court
(as described in section 11-902(d), District of Columbia, as
amended by subsection (a)).
(H) Consistent with the requirements of paragraph (2), a
proposal for the disposition or transfer to the Family Court
of actions and proceedings within the jurisdiction of the
Family Court as of the date of the enactment of this Act
(together with actions and proceedings described in section
11-1101, District of Columbia Code, which were initiated in
the Family Division but remain pending in other Divisions of
the Superior Court as of such date) in a manner consistent
with applicable Federal and District of Columbia law and best
practices, including best practices developed by the American
Bar Association and the National Council of Juvenile and
Family Court Judges.
(2) Implementation of the proposal for transfer or
disposition of actions and proceedings to family court.--
(A) In general.--The chief judge of the Superior Court and
the presiding judge of the Family Court shall take such steps
as may be required as provided in the proposal for
disposition of actions and proceedings under paragraph (1)(H)
to ensure that each action or proceeding within the
jurisdiction of the Family Court of the Superior Court (as
described in section 11-902(d), District of Columbia Code, as
amended by subsection (a)) is transferred to the Family Court
or otherwise disposed of as provided in subparagraph (B). The
requirement of this subparagraph shall not apply to an action
or proceeding pending before a senior judge as defined in
section 11-1504, District of Columbia Code.
(B) Deadline.--Notwithstanding any other provision of this
Act or any amendment made by this Act, no action or
proceeding which is within the jurisdiction of the Family
Court (as described in section 11-902(d), District of
Columbia Code, as amended by subsection (a)) shall remain
pending with a judge not serving on the Family Court upon the
expiration of 18 months after the date of enactment of this
Act.
(C) Progress reports.--The chief judge of the Superior
Court shall report to the Committee on Appropriations of each
House, the Committee on Governmental Affairs of the Senate,
and the Committee on Government Reform of the House of
Representatives 6 months and 12 months after the date of
enactment of this Act on the progress made towards disposing
of actions or proceedings described in subparagraph (B).
(3) Effective date of implementation of plan.--The chief
judge of the Superior Court may not take any action to
implement the transition plan under this subsection until the
expiration of the 30-day period which begins on the date the
chief judge submits the plan to the President and Congress
under paragraph (1).
(c) Transition to Required Number of Judges.--
(1) Analysis by chief judge of superior court.--The chief
judge of the Superior Court of the District of Columbia shall
include in the transition plan prepared under subsection
(b)--
(A) the chief judge's determination of the number of
individuals serving as judges of the Superior Court who meet
the qualifications for judges of the Family Court of the
Superior Court under section 11-908A, District of Columbia
Code (as added by subsection (a)); and
(B) if the chief judge determines that the number of
individuals described in subparagraph (A) is less than 15, a
request that the Judicial Nomination Commission recruit and
the President nominate (in accordance with section 433 of the
District of Columbia Home Rule Act) such additional number of
individuals to serve on the Superior Court who meet the
qualifications for judges of the Family Court under such
section as may be required to enable the chief judge to make
the required number of assignments.
(2) Role of district of columbia judicial nomination
commission.--For purposes of section 434(d)(1) of the
District of Columbia Home Rule Act, the submission of a
request from the chief judge of the Superior Court of the
District of Columbia under paragraph (1)(B) shall be deemed
to create a number of vacancies in the position of judge of
the Superior Court equal to the number of additional
appointments so requested by the chief judge, except that the
deadline for the submission by the District of Columbia
Judicial Nomination Commission of nominees to fill such
vacancies shall be 90 days after the creation of such
vacancies. In carrying out this paragraph, the District of
Columbia Judicial Nomination Commission shall recruit
individuals for possible nomination and appointment to the
Superior Court who meet the qualifications for judges of the
Family Court of the Superior Court.
(d) Report by Comptroller General.--
(1) In general.--Not later than 2 years after the date of
the enactment of this Act, the Comptroller General shall
prepare and submit to Congress and the chief judge of the
Superior Court of the District of Columbia a report on the
implementation of this Act (including the transition plan
under subsection (b)), and shall include in the report the
following:
(A) An analysis of the procedures used to make the initial
appointments of judges of the Family Court under this Act and
the amendments made by this Act, including an analysis of the
time required to make such appointments and the effect of the
qualification requirements for judges of the Court (including
requirements relating to the length of service on the Court)
on the time required to make such appointments.
(B) An analysis of the impact of magistrate judges for the
Family Court (including the expedited initial appointment of
magistrate judges for the Court under section 6(d)) on the
workload of judges and other personnel of the Court.
(C) An analysis of the number of judges needed for the
Family Court, including an analysis of how the number may be
affected by the qualification requirements for judges, the
availability of magistrate judges, and other provisions of
this Act or the amendments made by this Act.
(2) Submission to chief judge of superior court.--Prior to
submitting the report under paragraph (1) to Congress, the
Comptroller General shall provide a preliminary version of
the report to the chief judge of the Superior Court and shall
take any comments and recommendations of the chief judge into
consideration in preparing the final version of the report.
(e) Conforming Amendment.--The first sentence of section
11-908(a), District of Columbia Code, is amended by striking
``The chief judge'' and inserting ``Subject to section 11-
908A, the chief judge''.
(f) Clerical Amendment.--The table of sections for chapter
9 of title 11, District of Columbia Code, is amended by
inserting after the item relating to section 11-908 the
following new item:
``11-908A. Special rules regarding assignment and service of judges of
Family Court.''.
SEC. 4. IMPROVING ADMINISTRATION OF CASES AND PROCEEDINGS IN
FAMILY COURT.
(a) In General.--Chapter 11 of title 11, District of
Columbia, is amended by striking section 1101 and inserting
the following:
``Sec. 11-1101. Jurisdiction of the Family Court.
``(a) In General.--The Family Court of the District of
Columbia shall be assigned and have original jurisdiction
over--
``(1) actions for divorce from the bond of marriage and
legal separation from bed and board, including proceedings
incidental thereto for alimony, pendente lite and permanent,
and for support and custody of minor children;
``(2) applications for revocation of divorce from bed and
board;
``(3) actions to enforce support of any person as required
by law;
``(4) actions seeking custody of minor children, including
petitions for writs of habeas corpus;
``(5) actions to declare marriages void;
[[Page S8956]]
``(6) actions to declare marriages valid;
``(7) actions for annulments of marriage;
``(8) determinations and adjudications of property rights,
both real and personal, in any action referred to in this
section, irrespective of any jurisdictional limitation
imposed on the Superior Court;
``(9) proceedings in adoption;
``(10) proceedings under the Act of July 10, 1957 (D.C.
Code, secs. 30-301 to 30-324);
``(11) proceedings to determine paternity of any child born
out of wedlock;
``(12) civil proceedings for protection involving
intrafamily offenses, instituted pursuant to chapter 10 of
title 16;
``(13) proceedings in which a child, as defined in section
16-2301, is alleged to be delinquent, neglected, or in need
of supervision;
``(14) proceedings under chapter 5 of title 21 relating to
the commitment of the mentally ill;
``(15) proceedings under chapter 11 of title 21 relating to
the commitment of the substantially retarded; and
``(16) proceedings under Interstate Compact on Juveniles
(described in title IV of the District of Columbia Court
Reform and Criminal Procedure Act of 1970).
``(b) Definition.--In this chapter, the term `action or
proceeding' with respect to the Family Court refers to cause
of action described in paragraphs (1) through (16) of
subsection (a).
``Sec. 11-1102. Use of alternative dispute resolution.
``To the greatest extent practicable and safe, cases and
proceedings in the Family Court of the Superior Court shall
be resolved through alternative dispute resolution
procedures, in accordance with such rules as the Superior
Court may promulgate.
``Sec. 11-1103. Standards of practice for appointed counsel.
``The Superior Court shall establish standards of practice
for attorneys appointed as counsel in the Family Court of the
Superior Court.
``Sec. 11-1104. Administration.
``(a) `One Family, One Judge' Requirement for Cases and
Proceedings.--To the greatest extent practicable and
feasible, if an individual who is a party to an action or
proceeding assigned to the Family Court has an immediate
family or household member who is a party to another action
or proceeding assigned to the Family Court, the individual's
action or proceeding shall be assigned to the same judge or
magistrate judge to whom the immediate family member's action
or proceeding is assigned.
``(b) Retention of Jurisdiction Over Cases.--
``(1) In general.--In addition to the requirement of
subsection (a), any action or proceeding assigned to the
Family Court of the Superior Court shall remain under the
jurisdiction of the Family Court until the action or
proceeding is finally disposed.
``(2) One family, one judge.--
``(A) For the duration.--An action or proceeding assigned
pursuant to this subsection shall remain with the judge or
magistrate judge to whom the action or proceeding is assigned
for the duration of the action or proceeding to the greatest
extent practicable, feasible, and lawful.
``(B) All cases involving an individual.--If an individual
who is a party to an action or proceeding assigned to the
Family Court becomes a party to another action or proceeding
assigned to the Family Court, the individual's subsequent
action or proceeding shall be assigned to the same judge or
magistrate judge to whom the individual's initial action or
proceeding is assigned to the greatest extent practicable,
feasible, and lawful.
``(C) Reassignment.--If the judge to whom the action or
proceeding is assigned ceases to serve on the Family Court
prior to the final disposition of the action or proceeding,
the presiding judge of the Family Court shall ensure that the
matter or proceeding is reassigned to a judge serving on the
Family Court, except that a judge who ceases to serve in
Family Court but remains in Superior Court may retain the
case or proceeding for not more than 6 months after ceasing
to serve if such retention is in the best interests of the
parties.
``(3) Standards of judicial ethics.--The actions of a judge
or magistrate judge in retaining an action or proceeding
under this paragraph shall be subject to applicable standards
of judicial ethics.
``(c) Training Program.--
``(1) In general.--The presiding judge of the Family Court
shall carry out an ongoing program to provide training in
family law and related matters for judges of the Family
Court, including magistrate judges, attorneys who practice in
the Family Court, and appropriate nonjudicial personnel, and
shall include in the program information and instruction
regarding the following:
``(A) Child development.
``(B) Family dynamics, including domestic violence.
``(C) Relevant Federal and District of Columbia laws.
``(D) Permanency planning principles and practices.
``(E) Recognizing the risk factors for child abuse.
``(F) Any other matters the presiding judge considers
appropriate.
``(2) Use of cross-training.--The program carried out under
this section shall use the resources of lawyers and legal
professionals, social workers, and experts in the field of
child development and other related fields.
``(d) Accessibility of Materials, Services, and
Proceedings; Promotion of `Family-Friendly' Environment.--
``(1) In general.--To the greatest extent practicable, the
presiding judge of the Family Court shall ensure that the
materials and services provided by the Family Court are
understandable and accessible to the individuals and families
served by the Court, and that the Court carries out its
duties in a manner which reflects the special needs of
families with children.
``(2) Location of proceedings.--To the maximum extent
feasible, safe, and practicable, cases and proceedings in the
Family Court shall be conducted at locations readily
accessible to the parties involved.
``(e) Integrated Computerized Case Tracking and Management
System.--The Executive Officer of the District of Columbia
courts under section 11-1703 shall work with the chief judge
of the Superior Court--
``(1) to ensure that all records and materials of cases and
proceedings in the Family Court are stored and maintained in
electronic format accessible by computers for the use of
judges, magistrate judges, and nonjudicial personnel of the
Family Court, and for the use of other appropriate offices of
the District government in accordance with the plan for
integrating computer systems prepared by the Mayor of the
District of Columbia under section 4(b) of the District of
Columbia Family Court Act of 2001;
``(2) to establish and operate an electronic tracking and
management system for cases and proceedings in the Family
Court for the use of judges and nonjudicial personnel of the
Family Court, using the records and materials stored and
maintained pursuant to paragraph (1); and
``(3) to expand such system to cover all divisions of the
Superior Court as soon as practicable.
``Sec. 11-1105. Social services and other related services.
``(a) On-Site Coordination of Services and Information.--
``(1) In general.--The Mayor of the District of Columbia,
in consultation with the chief judge of the Superior Court,
shall ensure that representatives of the appropriate offices
of the District government which provide social services and
other related services to individuals and families served by
the Family Court (including the District of Columbia Public
Schools, the District of Columbia Housing Authority, the
Child and Family Services Agency, the Office of the
Corporation Counsel, the Metropolitan Police Department, the
Department of Health, and other offices determined by the
Mayor) are available on-site at the Family Court to
coordinate the provision of such services and information
regarding such services to such individuals and families.
``(2) Duties of heads of offices.--The head of each office
described in paragraph (1), including the Superintendent of
the District of Columbia Public Schools and the Director of
the District of Columbia Housing Authority, shall provide the
Mayor with such information, assistance, and services as the
Mayor may require to carry out such paragraph.
``(b) Appointment of Social Services Liaison With Family
Court.--The Mayor of the District of Columbia shall appoint
an individual to serve as a liaison between the Family Court
and the District government for purposes of subsection (a)
and for coordinating the delivery of services provided by the
District government with the activities of the Family Court
and for providing information to the judges, magistrate
judges, and nonjudicial personnel of the Court regarding the
services available from the District government to the
individuals and families served by the Court. The Mayor shall
provide on an ongoing basis information to the chief judge of
the Superior Court and the presiding judge of the Family
Court regarding the services of the District government which
are available for the individuals and families served by the
Family Court.
``Sec. 11-1106. Reports to Congress.
``Not later than 90 days after the end of each calendar
year, the chief judge of the Superior Court shall submit a
report to Congress on the activities of the Family Court
during the year, and shall include in the report the
following:
``(1) The chief judge's assessment of the productivity and
success of the use of alternative dispute resolution pursuant
to section 11-1102.
``(2) Goals and timetables as required by the Adoption and
Safe Families Act of 1997 to improve the Family Court's
performance in the following year.
``(3) Information on the extent to which the Court met
deadlines and standards applicable under Federal and District
of Columbia law to the review and disposition of actions and
proceedings under the Court's jurisdiction during the year.
``(4) Information on the progress made in establishing
locations and appropriate space for the Family Court that are
consistent with the mission of the Family Court until such
time as the locations and space are established.
``(5) Information on any factors which are not under the
control of the Family Court which interfere with or prevent
the Court from carrying out its responsibilities in the most
effective manner possible.
``(6) Based on outcome measures derived through the use of
the information stored in electronic format under section 11-
1104(d), an analysis of the Court's efficiency and
effectiveness in managing its case load during the
[[Page S8957]]
year, including an analysis of the time required to dispose
of actions and proceedings among the various categories of
the Court's jurisdiction, as prescribed by applicable law and
best practices, including (but not limited to) best practices
developed by the American Bar Association and the National
Council of Juvenile and Family Court Judges.
``(7) If the Court failed to meet the deadlines, standards,
and outcome measures described in the previous paragraphs, a
proposed remedial action plan to address the failure.''.
(b) Expedited Appeals for Certain Family Court Actions and
Proceedings.--Section 11-721, District of Columbia Code, is
amended by adding at the end the following new subsection:
``(g) Any appeal from an order of the Family Court of the
District of Columbia terminating parental rights or granting
or denying a petition to adopt shall receive expedited review
by the District of Columbia Court of Appeals and shall be
certified by the appellant. An oral hearing on appeal shall
be deemed to be waived unless specifically requested by a
party to the appeal.''.
(c) Plan for Integrating Computer Systems.--
(1) In general.--Not later than 6 months after the date of
the enactment of this Act, the Mayor of the District of
Columbia shall submit to the President and Congress a plan
for integrating the computer systems of the District
government with the computer systems of the Superior Court of
the District of Columbia so that the Family Court of the
Superior Court and the appropriate offices of the District
government which provide social services and other related
services to individuals and families served by the Family
Court of the Superior Court (including the District of
Columbia Public Schools, the District of Columbia Housing
Authority, the Child and Family Services Agency, the Office
of the Corporation Counsel, the Metropolitan Police
Department, the Department of Health, and other offices
determined by the Mayor) will be able to access and share
information on the individuals and families served by the
Family Court.
(2) Authorization of appropriations.--There are authorized
to be appropriated to the Mayor of the District of Columbia
such sums as may be necessary to carry out paragraph (1).
(d) Clerical Amendment.--The table of sections for chapter
11 of title 11, District of Columbia Code, is amended by
adding at the end the following new items:
``11-1102. Use of alternative dispute resolution.
``11-1103. Standards of practice for appointed counsel.
``11-1104. Administration.
``11-1105. Social services and other related services.
``11-1106. Reports to Congress.''.
SEC. 5. TREATMENT OF HEARING COMMISSIONERS AS MAGISTRATE
JUDGES.
(a) In General.--
(1) Redesignation of title.--Section 11-1732, District of
Columbia Code, is amended--
(A) by striking ``hearing commissioners'' each place it
appears in subsection (a), subsection (b), subsection (d),
subsection (i), subsection (l), and subsection (n) and
inserting ``magistrate judges'';
(B) by striking ``hearing commissioner'' each place it
appears in subsection (b), subsection (c), subsection (e),
subsection (f), subsection (g), subsection (h), and
subsection (j) and inserting ``magistrate judge'';
(C) by striking ``hearing commissioner's'' each place it
appears in subsection (e) and subsection (k) and inserting
``magistrate judge's'';
(D) by striking ``Hearing commissioners'' each place it
appears in subsections (b), (d), and (i) and inserting
``Magistrate judges''; and
(E) in the heading, by striking ``Hearing commissioners''
and inserting ``Magistrate Judges''.
(2) Conforming amendments.--(A) Section 11-1732(c)(3),
District of Columbia Code, is amended by striking ``, except
that'' and all that follows and inserting a period.
(B) Section 16-924, District of Columbia Code, is amended--
(i) by striking ``hearing commissioner'' each place it
appears and inserting ``magistrate judge''; and
(ii) in subsection (f), by striking ``hearing
commissioner's'' and inserting ``magistrate judge's''.
(3) Clerical amendment.--The item relating to section 11-
1732 of the table of sections of chapter 17 of title 11, D.C.
Code, is amended to read as follows:
``11-1732. Magistrate judges.''.
(b) Transition Provision Regarding Hearing Commissioners.--
Any individual serving as a hearing commissioner under
section 11-1732 of the District of Columbia Code as of the
date of the enactment of this Act shall serve the remainder
of such individual's term as a magistrate judge, and may be
reappointed as a magistrate judge in accordance with section
11-1732(d), District of Columbia Code, except that any
individual serving as a hearing commissioner as of the date
of the enactment of this Act who was appointed as a hearing
commissioner prior to the effective date of section 11-1732
of the District of Columbia Code shall not be required to be
a resident of the District of Columbia to be eligible to be
reappointed.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of the enactment of this Act.
SEC. 6. SPECIAL RULES FOR MAGISTRATE JUDGES OF FAMILY COURT.
(a) In General.--Chapter 17 of title 11, District of
Columbia Code, is amended by inserting after section 11-1732
the following new section:
``Sec. 11-1732A. Special rules for magistrate judges of the
Family Court of the Superior Court.
``(a) Use of Social Workers in Advisory Merit Selection
Panel.--The advisory selection merit panel used in the
selection of magistrate judges for the Family Court of the
Superior Court under section 11-1732(b) shall include
certified social workers specializing in child welfare
matters who are residents of the District and who are not
employees of the District of Columbia Courts.
``(b) Special Qualifications.--Notwithstanding section 11-
1732(c), no individual shall be appointed as a magistrate
judge for the Family Court of the Superior Court unless that
individual--
``(1) is a citizen of the United States;
``(2) is an active member of the unified District of
Columbia Bar;
``(3) for the 5 years immediately preceding the appointment
has been engaged in the active practice of law in the
District, has been on the faculty of a law school in the
District, or has been employed as a lawyer by the United
States or District government, or any combination thereof;
``(4) has not fewer than 3 years of training or experience
in the practice of family law; and
``(5)(A) is a bona fide resident of the District of
Columbia and has maintained an actual place of abode in the
District for at least 90 days immediately prior to
appointment, and retains such residency during service as a
magistrate judge; or
``(B) is a bona fide resident of the areas consisting of
Montgomery and Prince George's Counties in Maryland,
Arlington and Fairfax Counties, and the City of Alexandria in
Virginia, has maintained an actual place of abode in such
area for at least 5 years prior to appointment, and certifies
that the individual will become a bona fide resident of the
District of Columbia not later than 90 days after
appointment.
``(c) Service of Current Hearing Commissioners.--Those
individuals serving as hearing commissioners under section
11-1732 on the effective date of this section who meet the
qualifications described in subsection (b)(4) may request to
be appointed as magistrate judges for the Family Court of the
Superior Court under such section.
``(d) Functions.--A magistrate judge, when specifically
designated by the presiding judge of the Family Court of the
Superior Court, and subject to the rules of the Superior
Court and the right of review under section 11-1732(k), may
perform the following functions:
``(1) Administer oaths and affirmations and take
acknowledgements.
``(2) Subject to the rules of the Superior Court and
applicable Federal and District of Columbia law, conduct
hearings, make findings and enter interim and final orders or
judgments in uncontested or contested proceedings within the
jurisdiction of the Family Court of the Superior Court (as
described in section 11-1101), excluding jury trials and
trials of felony cases, as assigned by the presiding judge of
the Family Court.
``(3) Subject to the rules of the Superior Court, enter an
order punishing an individual for contempt, except that no
individual may be detained pursuant to the authority of this
paragraph for longer than 180 days.
``(e) Location of Proceedings.--To the maximum extent
feasible, safe, and practicable, magistrate judges of the
Family Court of the Superior Court shall conduct proceedings
at locations readily accessible to the parties involved.
``(f) Training.--The Family Court of the Superior Court
shall ensure that all magistrate judges of the Family Court
receive training to enable them to fulfill their
responsibilities, including specialized training in family
law and related matters.''.
(b) Conforming Amendments.--(1) Section 11-1732(a),
District of Columbia Code, is amended by inserting after
``the duties enumerated in subsection (j) of this section''
the following: ``(or, in the case of magistrate judges for
the Family Court of the Superior Court, the duties enumerated
in section 11-1732A(d))''.
(2) Section 11-1732(c), District of Columbia Code, is
amended by striking ``No individual'' and inserting ``Except
as provided in section 11-1732A(b), no individual''.
(3) Section 11-1732(k), District of Columbia Code, is
amended--
(A) by striking ``subsection (j),'' and inserting the
following: ``subsection (j) (or proceedings and hearings
under section 11-1732A(d), in the case of magistrate judges
for the Family Court of the Superior Court),''; and
(B) by inserting after ``appropriate division'' the
following: ``(or, in the case of an order or judgment of a
magistrate judge of the Family Court of the Superior Court,
by a judge of the Family Court)''.
(4) Section 11-1732(l), District of Columbia Code, is
amended by inserting after ``responsibilities'' the
following: ``(subject to the requirements of section 11-
1732A(f) in the case of magistrate judges of the Family Court
of the Superior Court)''.
(c) Clerical Amendment.--The table of sections for
subchapter II of chapter 17 of title 11, District of
Columbia, is amended by inserting after the item relating to
section 11-1732 the following new item:
[[Page S8958]]
``11-1732A. Special rules for magistrate judges of Family Court of the
Superior Court.''.
(d) Effective Date.--
(1) In general.--The amendments made by this section shall
take effect on the date of the enactment of this Act.
(2) Expedited initial appointments.--
(A) In general.--Not later than 30 days after the date of
the enactment of this Act, the chief judge of the Superior
Court of the District of Columbia shall appoint not more than
5 individuals to serve as magistrate judges for the Family
Division of the Superior Court in accordance with the
requirements of sections 11-1732 and 11-1732A, District of
Columbia Code (as added by subsection (a)).
(B) Appointments made without regard to selection panel.--
Sections 11-1732(b) and 11-1732A(a), District of Columbia
Code (as added by subsection (a)) shall not apply with
respect to any magistrate judge appointed under this
paragraph.
(C) Priority for certain actions and proceedings.--The
chief judge of the Superior Court and the presiding judge of
the Family Division of the Superior Court (acting jointly)
shall first assign and transfer to the magistrate judges
appointed under this paragraph actions and proceedings
described as follows:
(i) The action or proceeding involves an allegation of
abuse or neglect.
(ii) The judge to whom the action or proceeding is assigned
as of the date of the enactment of this Act is not assigned
to the Family Division.
(iii) The action or proceeding was initiated in the Family
Division prior to the 2-year period which ends on the date of
the enactment of this Act.
SEC. 7. SENSE OF CONGRESS REGARDING BORDER AGREEMENT WITH
MARYLAND AND VIRGINIA.
It is the sense of Congress that the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia should
promptly enter into a border agreement to facilitate the
timely and safe placement of children in the District of
Columbia's welfare system in foster and kinship homes and
other facilities in Maryland and Virginia.
SEC. 8. SENSE OF THE SENATE REGARDING THE USE OF COURT
APPOINTED SPECIAL ADVOCATES.
It is the sense of the Senate that the Chief Judge of the
Superior Court and the Presiding Judge of the Family Division
should take all steps necessary to encourage and support the
use of Court Appointed Special Advocates (CASA) in family
court actions or proceedings.
SEC. 9. INTERIM REPORTS.
Not later than 12 months after the date of enactment of
this Act, the chief judge of the Superior Court and the
presiding judge of the Family Court--
(1) in consultation with the General Services
Administration, shall submit to Congress a feasibility study
for the construction of appropriate permanent courts and
facilities for the Family Court; and
(2) shall submit to Congress an analysis of the success of
the use of magistrate judges under the expedited appointment
procedures established under section 6(d) in reducing the
number of pending actions and proceedings within the
jurisdiction of the Family Court (as described in section 11-
902(d), District of Columbia).
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Courts of
the District of Columbia and the District of Columbia such
sums as may be necessary to carry out the amendments made by
this Act.
SEC. 11. EFFECTIVE DATE.
The amendments made by section 4 shall take effect upon the
expiration of the 18 month period which begins on the date of
the enactment of this Act.
______
By Mrs. CLINTON (for herself and Mr. Roberts):
S. 1383. A bill to amend the Internal Revenue Code of 1986 to clarify
the treatment of incentive stock options and employee stock purchases;
to the Committee on Finance.
Mrs. CLINTON. Mr. President, I am pleased to introduce today a bill
to support the efforts of the many companies in New York and elsewhere
who grant stock options to their employees. Over the past three
decades, companies have increasingly used stock options to attract and
motivate employees. These companies give their workers the right to
purchase company stock, at a small discount from the listed price,
through Employee Stock Purchase Plans, ESPP and Incentive Stock
Options, ISO. Employees stock ownership has been shown to motivate
workers and enhance relationship between management and workers.
Indeed, for many workers, these plans are the only way to amass any
assets.
For nearly thirty years, the Internal Revenue Service, IRS has taken
the position that income from these stock options is not subject to
employment taxes. However, recent audits and rulings on individual
companies have raised the troubling prospect that the IRS may now
reverse its policy.
ESPPs and ISOs were created by Congress to provide tools to build
strong companies through increased employee ownership of company stock.
The purpose of the bipartisan bill I am introducing today, with Senator
Roberts, is to clarify that it was not the intent of Congress to dilute
these incentives by requiring employment tax withholding when the stock
is purchased. While the IRS has in place a moratorium until January 1,
2003 on assessing employment taxes on stock options, we must take
action to eliminate any uncertainty for companies and workers as to
whether options are subject to withholding taxes.
Again, the legislation I am introducing would clarify that the
difference between the exercise price and the fair market value of
stock offered by the ISO and ESPP is excluded from employment taxes. In
addition, wage withholding is not required on disqualifying
dispositions of ISO stock or on the fifteen percent discount offered to
employees by ESPPs.
I urge my colleagues to join me in cosponsoring this legislation.
______
By Mr. SMITH of Oregon:
S. 1384. A bill to amend the Robert T. Stafford Disaster Relief and
Emergency Assistance Act to expand the definition of the term ``Major
disaster'' to include an application of the Endangered Species Act of
1973 that souses severe economic hardship; to the Committee on
Environment and Public Works.
Mr. SMITH of Oregon. Mr. President, earlier this month I went to the
Santiam Canyon community of Detroit. Along with my visit to Klamath
Falls in May, it was probably one of the most emotional days I have had
as a Senator.
This beautiful community, located on one of Oregon's most popular
recreational lakes, has been devastated by a combination of natural and
man-made disasters. I stood next to one of the Detroit Lake marinas,
which in past years had been the busiest spot on the lake, provided
services to hundreds of boaters. I was amazed to see this marina was
high and dry. Now there are only tree stumps and mud flats in the
reservoir. Again, a result of both natural and man-made disasters. I
hosted a town hall where 350 community residents, nearly the entire
population of the City of Detroit, came to share their desperate
concerns.
I need to tell you what brought the community of Detroit, OR, to this
point.
Over 50 years ago, the town was forced by the Federal Government to
move from its original location so that Detroit Dam & Reservoir could
be built. The original city site was buried under several feet of
water. Detroit was a hearty community of strong-willed men and women.
Instead of giving up, they moved their community to higher ground, and
they survived. Years later, the Federal Government again came to
Detroit. Like a number of other timber dependent communities in Santiam
Canyon, the timber supply from the surrounding Federal land was cut off
and the mills were forced to close. Again, the residents of Detroit
refused to be broken, and instead retooled their economy from timber to
tourism.
Now, the Federal Government is visiting Detroit, Oregon again. This
time, as a result of drought and the government's decision to drain
Detroit Reservoir, upon which that new economy was based, the community
is once again facing extinction. Even with economic losses estimated at
$1.75 million, the Small Business Administration and the Federal
Emergency Management Agency tell me that according to their
regulations, there is no disaster in Detroit, OR, today.
I am here to tell you that there is a disaster in Detroit, it was
caused by the Federal Government, and it should be made right by the
Federal Government.
The Corps of Engineers drained Detroit Lake this summer before it
ever had a chance to fill. The Corps tells me that under a negotiated
agreement with the Oregon Department of Fish and Wildlife, NMFS and
other State and Federal agencies, it devised an operating plan to drain
the reservoir in order to meet far downstream needs for water quality
under the Clean Water Act and the Endangered Species Act, and even to
meet the power needs of California. Once again, the needs of rural
communities were left out of the equation.
[[Page S8959]]
I hope that the Senate will work with me to find more effective ways
of addressing drought. Detroit Lake is the prime example of how Federal
programs fail to prepare and assist non-agricultural communities
through drought disasters. This must change. The Federal Government
must engage the States in preparing comprehensive drought contingency
plans that address all those who are affected, agricultural and non-
agricultural communities alike.
Areas like Detroit Lake and the Klamath Basin also portray in bold
proportion the Federal Government's failure to take responsibility for
its own actions, actions it deems necessary to meet environmental
goals. I do not believe, however, that commitment to shared
environmental values means leaving dustbowls, wastelands, and paralyzed
communities in the wake of Federal actions. There must be a better way.
Therefore, I am introducing legislation today that would qualify
government-induced disasters for Disaster relief under the same
guidelines as natural disasters. It seems only fitting that if the
Government causes the disaster, it should provide the same relief as
when nature causes the problem.
I understand our environmental ethic, and I believe in our
environmental stewardship obligations. But I know that I am not alone
when I say this Government of the people and by the people, must also
be for the people. Including those people hurting in Detroit, OR,
today.
______
By Ms. CANTWELL (for herself and Mrs. Murray):
S. 1385. A bill to authorize the Secretary of the Interior, pursuant
to the provisions of the Reclamation Wastewater and Groundwater Study
and Facilities Act to participate in the design, planning, and
construction of the Lakehaven water reclamation project for the
reclamation and reuse of water; to the Committee on Energy and Natural
Resources.
Ms. CANTWELL. Mr. President, I rise today to introduce important
legislation to improving the capacity and reliability of wastewater
systems in the State of Washington.
I thank my friend, Washington state's senior Senator, Patty Murray,
who worked on this legislation in the last Congress and who has been a
champion of clean water as a member of this body. I look forward to
working with her as we build on those efforts in the years to come.
The United States economy, the strongest economy in the world, is
built on our human infrastructure and our physical infrastructure. We
have among the most comprehensive air traffic, public transit, highway,
and navigable waterway transportation systems; perhaps the most
sophisticated energy transmission grids and communication networks; and
the most effective drinking water and wastewater systems in the world.
However, in the face of the natural aging and deterioration of these
resources, combined with significant population growth, our Nation has
a massive need for investment in the maintenance and improvement of our
resources. Our Nation's economic health, and literally the physical
health of our constituents, depends on that investment.
In March, the American Society of Civil Engineers released a ``Report
Card for America's Infrastructure.'' After an extensive survey of the
Nation's infrastructure, the group of professionals perhaps most
familiar with the technical capabilities of the roads, bridges, dams,
runways, and water treatment plants, gave our Nation a cumulative grade
of D+. The group estimated that our Nation needs to invest $1.3
trillion over the next five years to bring our infrastructure up to the
standards that keep our overall economy out of the gridlock that has
gripped many of our metropolitan areas, that will keep our families
safe, and that simply befits the nature of this great Nation in
striving to be the best in the world.
The legislation that my colleague and I are introducing today
addresses only a small piece of this infrastructure, but it is
nonetheless important in addressing the growth of our region and the
impacts of that growth on the water systems of one part of Washington.
This legislation will authorize one project, in one area of our state,
but it is essential to maintaining water quality in the Puget Sound
region for fish habitat, for wetland restoration, and for meeting the
growing demands for water in the many communities served by the
Lakehaven Utility District.
Since 1972 the Federal Government has spent about $73 billion on
wastewater treatment programs. That's certainly no minor contribution,
and we have made progress, the elimination of nearly 85 percent of
wastewater. Unfortunately, with aging water collection and treatment
systems across the Nation, it is still estimated that between 35
percent and 45 percent of U.S. surface waters do not meet current
water-quality standards. Our Nation's 16,000 wastewater systems still
face enormous infrastructure funding needs.
While last year Congress appropriated $1.35 billion for wastewater
infrastructure, and another $1.35 billion in the legislation for fiscal
year 2002 that this body passed yesterday, EPA has estimated that we
will need to spend $126 billion by 2016 to fully achieve secondary
treatment improvements of existing facilities. So we still have a long
way to go, and I intend to keep working on increasing that Federal
commitment with my colleagues.
Again, the legislation that we are introducing today will take steps
toward solving some of these infrastructure needs in the Puget Sound
area and I will take a moment to explain the legislation.
The Lakehaven Utility District is one of Washington State's largest
water and sewer utilities providing 10.5 million gallons of water a day
to over 100,000 residents and numerous corporate facilities in south
King county and parts of Pierce county. The demand for water from these
sources has increased to a point that the district may soon exceed safe
water production limits and has resulted in reduction of water levels
in all local aquifers.
The District has two secondary wastewater treatment plants that
currently discharge more than 6 million gallons of water a day to Puget
Sound and the district is certain that techniques successfully used in
many parts of this Nation to utilize reclaimed water to manage
groundwater levels could be used in this region. The district has
prepared a plan to construct additional treatment systems at the two
wastewater treatment plants in the district, to improve pipeline
distribution systems for transporting water to the reuse areas, and
systems to direct water back to the aquifer system. if we make these
improvements, the district will be able to better maintain stream
levels during droughts and recharge the aquifers without using
additional surface water.
The legislation authorizes the Bureau of Reclamation to assist in the
planning, land acquisition and construction of this important water
reclamation project. The bill limits the Federal contribution to 25
percent and would comply with other limitations and obligations of the
Reclamation Wastewater and Groundwater Study and Facilities Act.
This project would begin to meet the needs of improving the
wastewater systems serving a large segment of the Northwest population,
and will provide additional protection for vital natural resources,
using economically feasible and proven technologies. The Federal
Government has a role in maintaining these systems and assisting in
building additional infrastructure to handle our nation's massive
needs.
Thus I urge my colleagues to join with us in support of this critical
legislation for the state of Washington and our Nation, I look forward
to working with my colleagues to expeditiously take up and pass this
bill.
______
By Mr. SANTORUM:
S. 1386. A bill to amen the Internal Revenue Code of 1986 to provide
for the equitable operation of welfare benefit plans for employees, and
for other purposes; to the Committee on Finance.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the text of
bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1386
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S8960]]
SECTION 1. SHORT TITLE; TABLE OF CONTENTS; AMENDMENT TO 1986
CODE.
(a) Short Title.--This Act may be cited as the ``Employee
Welfare Benefit Equity Act of 2001''.
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title; table of contents; amendment to 1986 Code.
TITLE I--CERTAIN WELFARE BENEFIT PLANS
Sec. 101. Modification of definition of ten-or-more employer plans.
Sec. 102. Clarification of deduction limits for certain collectively
bargained plans.
Sec. 103. Clarification of standards for section 501(c)(9) approval.
Sec. 104. Tax shelter provisions not to apply.
Sec. 105. Effective dates.
TITLE II--ENFORCEMENT PROVISIONS
Sec. 201. Clarification of section 4976.
Sec. 202. Effective date.
(c) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or a repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.
TITLE I--CERTAIN WELFARE BENEFIT PLANS
SEC. 101. MODIFICATION OF DEFINITION OF TEN-OR-MORE EMPLOYER
PLANS.
(a) Additional Requirements.--Paragraph (6)(B) of section
419A(f) (relating to the exception for 10 or more employer
plans) is amended by striking ``and'' at the end of clause
(i), by striking the period at the end of clause (ii) and
inserting a comma, and by adding at the end the following new
clauses:
``(iii) which meets the requirements of section 505(b)(1)
with respect to all benefits provided by the plan,
``(iv) which has obtained a favorable determination from
the Secretary that such plan (or a predecessor plan) is an
organization described in section 501(c)(9), and
``(v) under which no severance pay benefit is provided.''
(b) Clarification of Experience Rating.--
(1) In general.--Paragraph (6)(A) of section 419A(f)
(relating to the exception for 10 or more employer plans) is
amended by striking the second sentence and inserting the
following: ``The preceding sentence shall not apply to any
plan which is an experience-rated plan.''
(2) Experience-rated plan.--Section 419A(f)(6) is amended
by adding at the end the following new subparagraph:
``(C) Experience-rated plan.--For purposes of this
paragraph--
``(i) In general.--The term `experience-rated plan' means a
plan which determines contributions by individual employers
on the basis of actual gain or loss experience.
``(ii) Exception for guaranteed benefit plan.--
``(I) In general.--The term `experience-rated plan' shall
not include a guaranteed benefit plan.
``(II) Guaranteed benefit plan.--The term `guaranteed
benefit plan' means a plan the benefits of which are funded
with insurance contracts or are otherwise determinable and
payable to a participant without reference to, or limitation
by, the amount of contributions to the plan attributable to
any contributing employer. A plan shall not fail to be
treated as a guaranteed benefit plan solely because benefits
may be limited or denied in the event a contributing employer
fails to pay premiums or assessments required by the plan as
a condition of continued participation.''
(c) Single Plan Requirement.--Section 419A(f)(6), as
amended by subsections (a) and (b), is amended--
(1) by striking ``means a plan'' in subparagraph (B) and
inserting ``means a single plan'', and
(2) by adding at the end the following:
``(D) Single plan.--For purposes of this paragraph, the
term `single plan' means a written plan or series of related
written plans the terms of which provide that--
``(i) all assets of the plan or plans, whether maintained
under 1 or more trusts, accounts, or other arrangements and
without regard to the method of accounting of the plan or
plans, are available to pay benefits of all participants
without regard to the participant's contributing employer,
and
``(ii) the method of accounting of the plan or plans may
not operate to limit or reduce the benefits payable to a
participant at any time before the withdrawal of the
participant's employer from the plan or the termination of
any benefit arrangement under the plan.''
SEC. 102. CLARIFICATION OF DEDUCTION LIMITS FOR CERTAIN
COLLECTIVELY BARGAINED PLANS.
Paragraph (5) of section 419A(f) (relating to the
deductions limits for certain collectively bargained plans)
is amended by adding at the end the following flush
sentences:
``Subparagraph (B) shall not apply to any plan maintained
pursuant to an agreement between employee representatives and
1 or more employers unless the taxpayer applies for, and the
Secretary issues, a determination that such agreement is a
bona fide collective bargaining agreement and that the
welfare benefits provided under the agreement were the
subject of good faith bargaining between employee
representatives and such employer or employers. The Secretary
may issue regulations to carry out the purposes of the
preceding sentence.''
SEC. 103. CLARIFICATION OF STANDARDS FOR SECTION 501(C)(9)
APPROVAL.
Section 505 is amended by adding at the end the following
new subsection:
``(d) Clarification of Standards for Exemption.--
``(1) Membership.--An organization shall not fail to be
treated as an organization described in paragraph (9) of
section 501(c) solely because its membership includes
employees or other allowable participants who--
``(A) reside or work in different geographic locales, or
``(B) do not work in the same industrial or employment
classification.
``(2) Funding.--An organization described in paragraph (9)
or (20) of section 501(c) shall not be treated as
discriminatory solely because life insurance or other
benefits provided by the organization are funded with
different types of products, contracts, investments, or other
funding methods of varying costs, but only if the plan under
which such benefits are provided meets the requirements of
subsection (b).''
SEC. 104. TAX SHELTER PROVISIONS NOT TO APPLY.
Section 419 (relating to treatment of funded welfare
benefit plans) is amended by adding at the end the following:
``(h) Tax Shelter Rules Not To Apply.--For purposes of this
title, a welfare benefit fund meeting all applicable
requirements of this title shall not be treated as a tax
shelter or corporate tax shelter.''
SEC. 105. EFFECTIVE DATES.
(a) In General.--The amendments made by this title shall
apply to contributions to a welfare benefit fund made after
the date of the enactment of this Act.
(b) Tax Shelter Rules.--The amendment made by section 104
shall take effect as if included in the amendments made by
section 1028 of the Taxpayer Relief Act of 1997.
TITLE II--ENFORCEMENT PROVISIONS
SEC. 201. CLARIFICATION OF SECTION 4976.
Section 4976 (relating to excise taxes with respect to
funded welfare benefit plans) is amended to read as follows:
``SEC. 4976. TAXES WITH RESPECT TO FUNDED WELFARE BENEFIT
PLANS.
``(a) Imposition of Tax.--
``(1) General rule.--If--
``(A) an employer maintains a welfare benefit fund, and
``(B) there is--
``(i) a disqualified benefit provided or funded during any
taxable year, or
``(ii) a premature termination of such plan,
there is hereby imposed on such employer a tax in the amount
determined under paragraph (2).
``(2) Amount of tax.--The amount of the tax imposed by
paragraph (1) shall be equal to--
``(A) in the case of a taxable event under paragraph
(1)(B)(i), 100 percent of--
``(i) the amount of the disqualified benefit provided, or
``(ii) the amount of the funding of the disqualified
benefit, and
``(B) in the case of a taxable event under paragraph
(1)(B)(ii), 100 percent of all contributions to the fund
before the termination.
``(b) Disqualified Benefit.--For purposes of subsection
(a)--
``(1) In general.--The term `disqualified benefit' means--
``(A) any post-retirement medical benefit or life insurance
benefit provided with respect to a key employee if a separate
account is required to be established for such employee under
section 419A(d) and such payment is not from such account,
``(B) any post-retirement medical benefit or life insurance
benefit provided or funded with respect to an individual in
whose favor discrimination is prohibited unless the plan
meets the requirements of section 505(b) with respect to such
benefit (whether or not such requirements apply to such
plan), and
``(C) any portion of a welfare benefit fund reverting to
the benefit of the employer.
``(2) Exception for collective bargaining plans.--Paragraph
(1)(B) shall not apply to any plan maintained pursuant to an
agreement between employee representatives and 1 or more
employers if the Secretary finds that such agreement is a
collective bargaining agreement and that the benefits
referred to in paragraph (1)(B) were the subject of good
faith bargaining between such employee representatives and
such employer or employers.
``(3) Exception for nondeductible contributions.--Paragraph
(1)(C) shall not apply to any amount attributable to a
contribution to the fund which is not allowable as a
deduction under section 419 for the taxable year or any prior
taxable year (and such contribution shall not be included in
any carryover under section 419(d)).
``(4) Exception for certain amounts charged against
existing reserve.--Subparagraphs (A) and (B) of paragraph (1)
shall not apply to post-retirement benefits charged against
an existing reserve for post-retirement medical or life
insurance benefits (as defined in section 512(a)(3)(E)) or
charged against the income on such reserve.
``(c) Premature Termination.--For purposes of subsection
(a)--
``(1) In general.--The term `premature termination' means a
termination event which occurs on or before the date which is
6 years after the first contribution to a welfare benefit
fund which benefits any highly compensated employee.
[[Page S8961]]
``(2) Exception for insolvency, etc.--Paragraph (1) shall
not apply to any termination event which occurs by reason of
the insolvency of the employer or for such other reasons as
the Secretary may by regulation determine are not likely to
result in abuse.
``(3) Termination event.--For purposes of this subsection--
``(A) In general.--The term `termination event' means--
``(i) the termination of a welfare benefit fund,
``(ii) the withdrawal of an employer from a welfare benefit
fund to which more than 1 employer contributes, or
``(iii) any other action which is designed to cause,
directly or indirectly, a distribution of any asset from a
welfare benefit fund to a highly compensated employee.
``(B) Exception for bona fide benefits.--Subparagraph (A)
shall not apply to any bona fide benefit (other than a
severance benefit) paid from a welfare benefit fund which is
available to all employees on a nondiscriminatory basis and
payable pursuant to the terms of a written plan.
``(d) Definitions.--For purposes of this section--
``(1) In general.--Except as otherwise provided, the terms
used in this section shall have the same respective meanings
as when used in subpart D of part I of subchapter D of
chapter 1.
``(2) Post-retirement benefit.--
``(A) In general.--The term `post-retirement benefit' means
any benefit or distribution which is reasonably determined to
be paid, provided, or made available to a participant on or
after normal retirement age.
``(B) Normal retirement age.--The term `normal retirement
age' shall have the same meaning given the term in section
3(24) of the Employee Retirement Income Security Act of 1974,
but in no event shall such date be later than the latest
normal retirement age defined in any qualified retirement
plan of the employer maintaining the welfare benefit fund
which benefits such individual.
``(C) Presumption in the case of permanent life
insurance.--In the case of a welfare benefit fund which
provides a life insurance benefit for an employee, any
contributions to the fund for life insurance benefits in
excess of the cumulative projected cost of providing the
employee permanent whole life insurance, calculated on the
basis level premiums for each for each year before a normal
retirement age, shall be treated as funding a post-retirement
benefit.''
SEC. 202. EFFECTIVE DATE.
The amendments made by this title shall apply to benefits
provided, and terminations occurring, after the date of the
enactment of this Act.
______
By Mr. BINGAMAN (for himself, Mr. Domenici and Mr. Rockefeller):
S. 1387. A bill to conduct a demonstration program to show that
physician shortage, recruitment, and retention problems may be
ameliorated in rural States by developing comprehensive program that
will result in statewide physician population growth, and for other
purposes; to the Committee on Finance.
Mr. BINGAMAN. Mr. President, I rise today to introduce legislation,
the ``Rural States Physician Recruitment and Retention Demonstration
Act of 2001,'' with Senators Domenici and Rockefeller. This Act would
create a demonstration program to show that physician shortage,
recruitment, and retention problems may be ameliorated in demonstration
States by developing a training program and loan repayment program that
will result in statewide physician population growth.
The problem of recruiting and retaining physicians, particularly in
some specialties, has reached crisis proportions in my State. There are
very few small town residents who don't have a story to tell about
losing a cherished doctor or traveling vast distances to see a
specialist. And even in New Mexico's most populous city, Albuquerque,
the number of practicing neurosurgeons can be counted on one hand. Not
so long ago there were 11 of them practicing there. We know that the
surgeons in Santa Fe are struggling to recruit a new general surgeon,
as are many other communities throughout the State. We know that the
thought of having an additional psychiatrist in Las Cruces would be
considered by many to be an unrealistic fantasy. I am certain that many
Senators from States that are demographically more similar to New
Mexico than they are to Washington, D.C. can truly understand the
discrepancy in physician recruitment and retention.
Anyone representing a rural State knows that a certain amount of
physician turn over is inevitable and understandable. It is very
important, however, to anticipate how we can ensure an adequate supply
of physicians in the future. Payment for Graduate Medical Education
slots has been frozen at the number of physicians who were being
trained in 1996. Within the past six months we have been told that the
funding for training family physicians, general internists,
pediatricians, dentists, nurse practitioners, physician assistants, and
other health professionals should be drastically cut because ``today a
physician shortage no longer exists''. Although aggregate data appears
to support the notion that we need not be concerned about a physician
shortage, this does not reflect what is happening at home.
Health professional shortages continue to exist in geographically
isolated and economically disadvantaged areas. This maldistribution
problem is exacerbated by market forces that often entice physicians to
urban or suburban areas where higher income levels can be achieved. The
Medicare payment formula further contributes to the problem by
assessing a lower cost of living adjustment in rural areas and,
accordingly, decreasing the Medicare payment rate in the very area
where the physician shortage exists in the first place. Fortunately we
know that economics is only one of the many factors that physicians
consider when they are choosing a place to practice. Family
considerations and lifestyle issues also play a vital role in this
important decision. One of the best predictors of where a physician
will practice is directly related to the location of their post-
graduate medical education--they are likely to stay within a sixty-mile
radius of where they did their residency training. This fact, provides
us with a focus for this demonstration project.
This particular piece of legislation creates a demonstration program
in nine States that will correct the flaws in the system in two ways,
and then will track health professionals in each demonstration State
through a state-specific health professions database. Demonstration
States would be identified using three criteria including an uninsured
rate above the U.S. average, lack of primary care access above the U.S.
average, and a combined Medicare and Medicaid population above 20
percent.
The first flaw in the system is the capitation limit placed on all
residency graduate medical education positions in 1996. Whereas this
action may have been appropriate for some States, maybe even most
States, it has been extremely damaging to rural States where we know
physicians are in short supply. This bill allows a sponsoring
institution to increase the number of residency and fellowship
positions by up to 50 percent if the sponsoring institution agrees to
require that each resident or fellow in the affected training programs
would spend an aggregate of 10 percent of their time during training
providing supervised specialty services to underserved and rural
community populations outside of their training institution. A waiver
from this rural outreach requirement can be granted by the Secretary
for certain hospital-based subspecialists, like neurosurgeons, if the
demonstration State can demonstrate a shortage of physicians in that
specialty statewide.
The second flaw in the system revolves around the debt load carried
by many physicians when they finish their training program. Currently
there are several Federal and State programs that will help repay
education loans. The problem lies in the fact that only primary care
specialties currently qualify for these loan repayment programs. This
legislation creates a similar loan repayment program for underserved
specialists who agree to practice for one year in the demonstration
State for each year of education loans that are repaid.
Thus, this demonstration project does two critical things for
recruitment and retention in rural States. It exposes to underserved
areas that they may never have otherwise been exposed to, which
increases the possibility that they will stay and practice there. It
also relieves some of their economic burden from loans which may help
to moderate the effect of lower Medicare reimbursement rates in rural
areas.
I request unanimous consent that the text of this bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
[[Page S8962]]
S. 1387
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Rural
States Physician Recruitment and Retention Demonstration Act
of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Rural States Physician Recruitment and Retention Demonstration
Program.
Sec. 4. Establishment of the Health Professions Database.
Sec. 5. Evaluation and reports.
Sec. 6. Contracting flexibility.
SEC. 2. DEFINITIONS.
In this Act:
(1) COGME.--The term ``COGME'' means the Council on
Graduate Medical Education established under section 762 of
the Public Health Service Act (42 U.S.C. 294o).
(2) Demonstration program.--The term ``demonstration
program'' means the Rural States Physician Recruitment and
Retention Demonstration Program established by the Secretary
under section 3(a).
(3) Demonstration states.--The term ``demonstration
States'' means each State identified by the Secretary, based
upon data from the most recent year for which data are
available--
(A) that has an uninsured population above 16 percent (as
determined by the Bureau of the Census);
(B) for which the sum of the number of individuals who are
entitled to benefits under the medicare program and the
number of individuals who are eligible for medical assistance
under the medicaid program under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) equals or exceeds 20
percent of the total population of the State (as determined
by the Centers for Medicare & Medicaid Services); and
(C) that has an estimated number of individuals in the
State without access to a primary care provider of at least
17 percent (as published in ``HRSA's Bureau of Primary Health
Care: BPHC State Profiles'').
(4) Eligible residency or fellowship graduate.--The term
``eligible residency or fellowship graduate'' means a
graduate of an approved medical residency training program
(as defined in section 1886(h)(5)(A) of the Social Security
Act (42 U.S.C. 1395ww(h)(5)(A))) in a shortage physician
specialty.
(5) Health professions database.--The term ``Health
Professions Database'' means the database established under
section 4(a).
(6) Medicare program.--The term ``medicare program'' means
the health benefits program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(7) MedPAC.--The term ``MedPAC'' means the Medicare Payment
Advisory Commission established under section 1805 of the
Social Security Act (42 U.S.C. 1395b-6).
(8) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(9) Shortage physician specialty.--The term ``shortage
physician specialty'' means a medical or surgical specialty
identified in a demonstration State by the Secretary based
on--
(A) an analysis and comparison of national data and
demonstration State data; and
(B) recommendations from appropriate Federal, State, and
private commissions, centers, councils, medical and surgical
physician specialty boards, and medical societies or
associations involved in physician workforce, education and
training, and payment issues.
SEC. 3. RURAL STATES PHYSICIAN RECRUITMENT AND RETENTION
DEMONSTRATION PROGRAM.
(a) Establishment.--
(1) In general.--The Secretary shall establish a Rural
States Physician Recruitment and Retention Demonstration
Program for the purpose of ameliorating physician shortage,
recruitment, and retention problems in rural States in
accordance with the requirements of this section.
(2) Consultation.--For purposes of establishing the
demonstration program, the Secretary shall consult with--
(A) COGME;
(B) MedPAC;
(C) a representative of each demonstration State medical
society or association;
(D) the health workforce planning and physician training
authority of each demonstration State; and
(E) any other entity described in section 2(9)(B).
(b) Duration.--The Secretary shall conduct the
demonstration program for a period of 10 years.
(c) Conduct of Program.--
(1) Funding of additional residency and fellowship
positions.--
(A) In general.--As part of the demonstration program, the
Secretary (acting through the Administrator of the Centers
for Medicare & Medicaid Services) shall--
(i) notwithstanding section 1886(h)(4)(F) of the Social
Security Act (42 U.S.C. 1395ww(h)(4)(F)) increase, by up to
50 percent of the total number of residency and fellowship
positions approved at each medical residency training program
in each demonstration State, the number of residency and
fellowship positions in each shortage physician specialty;
and
(ii) subject to subparagraph (C), provide funding under
subsections (d)(5)(B) and (h) of section 1886 of the Social
Security Act (42 U.S.C. 1395ww) for each position added under
clause (i).
(B) Establishment of additional positions.--
(i) Identification.--The Secretary shall identify each
additional residency and fellowship position created as a
result of the application of subparagraph (A).
(ii) Negotiation and consultation.--The Secretary shall
negotiate and consult with representatives of each approved
medical residency training program in a demonstration State
at which a position identified under clause (i) is created
for purposes of supporting such position.
(C) Contracts with sponsoring institutions.--
(i) In general.--The Secretary shall condition the
availability of funding for each residency and fellowship
position identified under subparagraph (B)(i) on the
execution of a contract containing such provisions as the
Secretary determines are appropriate, including the provision
described in clause (ii) by each sponsoring institution.
(ii) Provision described.--
(I) In general.--Except as provided in subclause (II), the
provision described in this clause is a provision that
provides that, during the residency or fellowship, the
resident or fellow shall spend not less than 10 percent of
the training time providing specialty services to underserved
and rural community populations other than an underserved
population of the sponsoring institution.
(II) Exceptions.--The Secretary, in consultation with
COGME, shall identify shortage physician specialties and
subspecialties for which the application of the provision
described in subclause (I) would be inappropriate and the
Secretary may waive the requirement under clause (i) that
such provision be included in the contract of a resident or
fellow with such a specialty or subspecialty.
(D) Limitations.--
(i) Period of payment.--The Secretary may not fund any
residency or fellowship position identified under
subparagraph (B)(i) for a period of more than 5 years.
(ii) Reassessment of need.--The Secretary shall reassess
the status of the shortage physician specialty in the
demonstration State prior to entering into any contract under
subparagraph (C) after the date that is 5 years after the
date on which the Secretary establishes the demonstration
program.
(2) Loan repayment and forgiveness program.--
(A) In general.--As part of the demonstration program, the
Secretary (acting through the Administrator of the Health
Resources and Services Administration) shall establish a loan
repayment and forgiveness program, through the holder of the
loan, under which the Secretary assumes the obligation to
repay a qualified loan amount for an educational loan of an
eligible residency or fellowship graduate--
(i) for whom the Secretary has approved an application
submitted under subparagraph (D); and
(ii) with whom the Secretary has entered into a contract
under subparagraph (C).
(B) Qualified loan amount.--
(i) In general.--Subject to clause (ii), the Secretary
shall repay the lesser of--
(I) 25 percent of the loan obligation of a graduate on a
loan that is outstanding during the period that the eligible
residency or fellowship graduate practices in the area
designated by the contract entered into under subparagraph
(C); or
(II) $25,000 per graduate per year of such obligation
during such period.
(ii) Limitation.--The aggregate amount under this
subparagraph may not exceed $125,000 for any graduate and the
Secretary may not repay or forgive more than 30 loans per
year in each demonstration State under this paragraph.
(C) Contracts with residents and fellows.--
(i) In general.--Each eligible residency or fellowship
graduate desiring repayment of a loan under this paragraph
shall execute a contract containing the provisions described
in clause (ii).
(ii) Provisions.--The provisions described in this clause
are provisions that require the eligible residency or
fellowship graduate--
(I) to practice in a health professional shortage area of a
demonstration State during the period in which a loan is
being repaid or forgiven under this section; and
(II) to provide health services relating to the shortage
physician specialty of the graduate that was funded with the
loan being repaid or forgiven under this section during such
period.
(D) Application.--
(i) In general.--Each eligible residency or fellowship
graduate desiring repayment of a loan under this paragraph
shall submit an application to the Secretary at such time, in
such manner, and accompanied by such information as the
Secretary may reasonably require.
(ii) Reassessment of need.--The Secretary shall reassess
the shortage physician specialty in the demonstration State
prior to accepting an application for repayment of any loan
under this paragraph after the date that is 5 years after the
date on which the demonstration program is established.
(E) Construction.--Nothing in the section shall be
construed to authorize any refunding of any repayment of a
loan.
[[Page S8963]]
(F) Prevention of double benefits.--No borrower may, for
the same service, receive a benefit under both this paragraph
and any loan repayment or forgiveness program under title VII
of the Public Health Service Act (42 U.S.C. 292 et seq.).
(d) Waiver of Medicare Requirements.--The Secretary is
authorized to waive any requirement of the medicare program,
or approve equivalent or alternative ways of meeting such a
requirement, if such waiver is necessary to carry out the
demonstration program, including the waiver of any limitation
on the amount of payment or number of residents under section
1886 of the Social Security Act (42 U.S.C. 1395ww).
(e) Appropriations.--
(1) Funding of additional residency and fellowship
positions.--Any expenditures resulting from the establishment
of the funding of additional residency and fellowship
positions under subsection (c)(1) shall be made from the
Federal Hospital Insurance Trust Fund under section 1817 of
the Social Security Act (42 U.S.C. 1395i).
(2) Loan repayment and forgiveness program.--There are
authorized to be appropriated such sums as may be necessary
to carry out the loan repayment and forgiveness program
established under subsection (c)(2).
SEC. 4. ESTABLISHMENT OF THE HEALTH PROFESSIONS DATABASE.
(a) Establishment of the Health Professions Database.--
(1) In general.--Not later than 7 months after the date of
enactment of this Act, the Secretary (acting through the
Administrator of the Health Resources and Services
Administration) shall establish a State-specific health
professions database to track health professionals in each
demonstration State with respect to specialty certifications,
practice characteristics, professional licensure, practice
types, locations, education, and training, as well as
obligations under the demonstration program as a result of
the execution of a contract under paragraph (1)(C) or (2)(C)
of section 3(c).
(2) Data sources.--In establishing the Health Professions
Database, the Secretary shall use the latest available data
from existing health workforce files, including the AMA
Master File, State databases, specialty medical society data
sources and information, and such other data points as may be
recommended by COGME, MedPAC, the National Center for
Workforce Information and Analysis, or the medical society of
the respective demonstration State.
(b) Availability.--
(1) During the program.--During the demonstration program,
data from the Health Professions Database shall be made
available to the Secretary, each demonstration State, and the
public for the purposes of--
(A) developing a baseline with respect to a State's health
professions workforce and to track changes in a demonstration
State's health professions workforce;
(B) tracking direct and indirect graduate medical education
payments to hospitals;
(C) tracking the forgiveness and repayment of loans for
educating physicians; and
(D) tracking commitments by physicians under the
demonstration program.
(2) Following the program.--Following the termination of
the demonstration program, a demonstration State may elect to
maintain the Health Professions Database for such State at
its expense.
(c) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary for the
purpose of carrying out this section.
SEC. 5. EVALUATION AND REPORTS.
(a) Evaluation.--
(1) In general.--COGME and MedPAC shall jointly conduct a
comprehensive evaluation of the demonstration program.
(2) Matters evaluated.--The evaluation conducted under
paragraph (1) shall include an analysis of the effectiveness
of the funding of additional residency and fellowship
positions and the loan repayment and forgiveness program on
physician recruitment, retention, and specialty mix in each
demonstration State.
(b) Progress Reports.--
(1) COGME.--Not later than 1 year after the date on which
the Secretary establishes the demonstration program, 5 years
after such date, and 10 years after such date, COGME shall
submit a report on the progress of the demonstration program
to the Secretary and Congress.
(2) MedPAC.--MedPAC shall submit biennial reports on the
progress of the demonstration program to the Secretary and
Congress.
(c) Final Report.--Not later than 1 year after the date on
which the demonstration program terminates, COGME and MedPAC
shall submit a final report to the President, Congress, and
the Secretary which shall contain a detailed statement of the
findings and conclusions of COGME and MedPAC, together with
such recommendations for legislation and administrative
actions as COGME and MedPAC consider appropriate.
(d) Authorization of Appropriations.--There are authorized
to be appropriated to COGME such sums as may be necessary for
the purpose of carrying out this section.
SEC. 6. CONTRACTING FLEXIBILITY.
For purposes of conducting the demonstration program and
establishing and administering the Health Professions
Database, the Secretary may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code.
______
By Ms. LANDRIEU:
S. 1388. A bill to make election day a Federal holiday; to the
Committee on the Judiciary
Ms. LANDRIEU. 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. 1388
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress finds that--
(1) democracy is an invaluable birthright of American
citizens and each generation must sustain and improve the
democratic process for its successors;
(2) the Federal Government must actively create and enforce
laws that protect the voting rights of all Americans, and
further create an equal opportunity for all Americans to
participate in the voting process;
(3) the Federal Government should encourage the value of
the right to vote;
(4) 22.6 percent of Americans who do not vote in elections
give the reasoning that they are too busy and have a
conflicting work or school schedule;
(5) the creation of a legal public holiday on election day
will increase the availability of poll workers and suitable
polling places; and
(6) the creation of a legal public holiday on election day
might make voting easier for some workers and increase voter
participation by the American public.
SEC. 2. ESTABLISHMENT OF ELECTION DAY IN FEDERAL ELECTION
YEARS AS A LEGAL PUBLIC HOLIDAY.
Section 6103(a) of title 5, United States Code, is amended
by inserting immediately below the item relating to Veterans
Day the following:
``Election Day, the Tuesday next after the first Monday in
November in each even-numbered year.''.
______
By Mr. DASCHLE (for himself and Mr. Johnson):
S. 1389. A bill to provide for the conveyance of certain real
property in south Dakota to the State of South Dakota with
indemnification by the United States government, and for other
purposes; to the Committee on Environment and Public Works.
Mr. DASCHLE. Mr. President, today Senator Johnson and I are
introducing the Homestake Mine Conveyance Act of 2001 to enable the
construction of a new, world-renowned science laboratory in the Black
Hills of South Dakota.
Last Year, the Homestake Mining Company announced it is closing its
gold mine in Lead, SD after 125 years of operation. This mine has been
an important part of the economy in the Black Hills, and its closure
presented South Dakota with a serious challenge.
New opportunities for Lead became possible, however, when we learned
that a group of prominent scientists had identified the mine as a
potential site to establish a national underground science laboratory.
Composed of some of the foremost researchers in the country, the
National Underground Science Laboratory Committee found that
Homestake's unique combination of depth, geologic stability and
outstanding infrastructure made it an ideal location for an underground
laboratory that could support groundbreaking new scientific research.
In just the last few months, a $281 million proposal to construct the
laboratory has been submitted to the National Science Foundation.
As I learned, tiny particles known as neutrinos hold the answer to
fundamental questions about the nature of the universe. These particles
cannot be detected on the surface of the Earth due to the immense
amount of interference coming in from outer space. However, research
laboratories located deep underground, where detectors are shielded by
thousand of feet of rock, have been able to detect these particles and
provide important new information to scientists. Because the Homestake
mine in Lead is over 8,000 feet deep, it offers outstanding
opportunities for such research. In fact one neutrino experiment has
been operating there since the 1960s.
I have never seen such excitement in Lead as I have seen in relation
to this proposal. Banners welcoming visiting scientists to Lead have
been hung over the streets. The local chamber of commerce held a
``Neutrino Day'' in February and reported the highest attendance for
any even in recent memory. Students, teachers, miners, business
[[Page S8964]]
owners, people from every walk of life, have contacted me to express
their excitement about the possibility of building a laboratory. The
support for this proposal is overwhelming.
In order to make the mine available for research, it is necessary for
the facility to be transferred to the State of South Dakota and for the
United States to assume a portion of the liability currently associated
with the property. The purpose of the legislation Senator Johnson and I
are introducing today is to ensure that this transfer takes places in a
way that is fair to taxpayers, that protects the environment, and that
ensures this facility can ultimately become available for research.
This legislation establishes a number of steps that must be taken to
meet these goals. First it requires that an independent inspection of
the property take place to identify any condition that could pose a
threat to human health or the environment. The Environmental Protection
Agency must review the report accompanying this inspection and ensure
that any problematic conditions are mitigated before transfer may be
allowed to take place. Second, it requires that the State of South
Dakota purchase environmental insurance to protect the taxpayers
against any issue that may arise as a result of acquiring the mine.
Third, it establishes a trust fund to provide a permanent source of
revenue to finance any clean-up that may be necessary. Finally, this
bill would take effect only if the National Science Foundation approves
the construction of the laboratory.
To be clear, only a portion of Homestake's existing facilities that
are required for the laboratory are being considered for transfer.
These include the underground portion of the mine and a small
``footprint'' on the surface. The legislation specifically prohibits
any tailings storage sites, waste rock dumps or other areas from being
transferred, as these sites must be reclaimed by Homestake Mining
Company.
The final point I want to make is that this legislation is time-
sensitive. Homestake's current plan to reclaim the underground mine is
to let it slowly flood with water once the mine closes in January of
2001. If that happens, we will forever lose the opportunity to create
this laboratory.
This legislation has been developed over a period of months in close
consultation with Homestake Mining Company, the environmental
community, the scientific community, the State of South Dakota and the
South Dakota School of Mines and Technology. I want to thank all the
individuals involved with this effort for their help. In particular,
I'd like to thank Governor Bill Janklow, whose help and support is this
process have been invaluable.
I believe the resulting legislation is fair to all involved, and that
it will ensure the success of the laboratory while protecting the
environment. Moreover, by enabling the construction of this laboratory,
it ultimately will bring significant benefits to the United States and
make an important contribution to human knowledge. I look forward to
working with all interested parties to make additional improvements to
this legislation when we return in September, and I am personally
committed to passing this legislation in a timely manner this fall.
I urge my colleagues to give this legislation their support. I ask
unanimous consent that the text of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1389
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 ``Homestake Mine Conveyance
Act of 2001''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the United States is among the leading nations in the
world in conducting basic scientific research;
(2) that leadership position strengthens the economy and
national defense of the United States and provides other
important benefits;
(3) the Homestake Mine in Lead, South Dakota, owned by the
Homestake Mining Company of California, is approximately
8,000 feet deep and is situated in a unique physical setting
that is ideal for carrying out certain types of particle
physics and other research;
(4) the Mine has been selected by the National Underground
Science Laboratory Committee, an independent panel of
distinguished scientists, as the preferred site for the
construction of a national underground laboratory;
(5) such a laboratory would be used to conduct scientific
research that would be funded and recognized as significant
by the United States;
(6) the establishment of the laboratory is in the national
interest, and would substantially improve the capability of
the United States to conduct important scientific research;
(7) for economic reasons, Homestake intends to cease
operations and close the Mine in 2001;
(8) on cessation of operations of the Mine, Homestake
intends to implement reclamation actions that would preclude
the establishment of a laboratory at the Mine;
(9) Homestake has advised the State that, after cessation
of operations at the Mine, instead of carrying out those
reclamation actions, Homestake is willing to donate the
underground portion of the Mine and certain other real and
personal property of substantial value at the Mine for use as
the underground science laboratory;
(10) use of the Mine as the site for the laboratory,
instead of other locations under consideration, would result
in a savings of millions of dollars;
(11) if the National Science Foundation selects the Mine as
the site for the laboratory, it is essential that Homestake
not complete certain reclamation activities that would
preclude the location of the laboratory at the Mine;
(12) Homestake is unwilling to donate, and the State is
unwilling to accept, the property at the Mine for the
laboratory if Homestake and the State would continue to have
potential liability with respect to the transferred property;
and
(13) to secure the use of the Mine as the location for the
laboratory, and to realize the benefits of the proposed
laboratory, it is necessary for the United States to--
(A) assume a portion of any potential future liability of
Homestake concerning the Mine; and
(B) address potential liability associated with the
operation of the laboratory.
SEC. 3. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Affiliate.--
(A) In general.--The term ``affiliate'' means any
corporation or other person that controls, is controlled by,
or is under common control with Homestake.
(B) Inclusions.--The term ``affiliate'' includes a
director, officer, or employee of an affiliate.
(3) Conveyance.--The term ``conveyance'' means the
conveyance of the Mine to the State under section 4(a).
(4) Fund.--The term ``Fund'' means the Environment and
Project Trust Fund established under section 7.
(5) Homestake.--
(A) In general.--The term ``Homestake'' means the Homestake
Mining Company of California, a California corporation.
(B) Inclusion.--The term ``Homestake'' includes--
(i) a director, officer, or employee of Homestake; and
(ii) an affiliate of Homestake.
(6) Laboratory.--
(A) In general.--The term ``laboratory'' means the national
underground science laboratory proposed to be established at
the Mine after the conveyance.
(B) Inclusion.--The term ``laboratory'' includes operating
and support facilities of the laboratory.
(7) Mine.--
(A) In general.--The term ``Mine'' means the portion of the
Homestake Mine in Lawrence County, South Dakota, proposed to
be conveyed to the State for the establishment and operation
of the laboratory.
(B) Inclusions.--The term ``Mine'' includes--
(i) real property, mineral and oil and gas rights, shafts,
tunnels, structures, in-Mine backfill, in-Mine broken rock,
fixtures, and personal property to be conveyed for
establishment and operation of the laboratory, as agreed upon
by Homestake, the State, and the Director of the laboratory;
and
(ii) any water that flows into the Mine from any source.
(C) Exclusions.--The term ``Mine'' does not include--
(i) the feature known as the ``Open Cut'';
(ii) any tailings or tailings storage facility (other than
in-Mine backfill); or
(iii) any waste rock or any site used for the dumping of
waste rock (other than in-Mine broken rock).
(8) Person.--The term ``person'' means--
(A) an individual;
(B) a trust, firm, joint stock company, corporation
(including a government corporation), partnership,
association, limited liability company, or any other type of
business entity;
(C) a State or political subdivision of a State;
(D) a foreign governmental entity; and
(E) any department, agency, or instrumentality of the
United States.
(9) Project sponsor.--The term ``project sponsor'' means an
entity that manages or
[[Page S8965]]
pays the costs of 1 or more projects that are carried out or
proposed to be carried out at the laboratory.
(10) State.--
(A) In general.--The term ``State'' means the State of
South Dakota.
(B) Inclusions.--The term ``State'' includes an
institution, agency, officer, or employee of the State.
SEC. 4. CONVEYANCE OF REAL PROPERTY.
(a) In General.--
(1) Delivery of documents.--Subject to paragraph (2) and
subsection (b) and notwithstanding any other provision of
law, on the execution and delivery by Homestake of 1 or more
quit-claim deeds or bills of sale conveying to the State all
right, title, and interest of Homestake in and to the Mine,
title to the Mine shall pass from Homestake to the State.
(2) Condition of mine on conveyance.--The Mine shall be
conveyed as is, with no representations as to the conditions
of the property.
(b) Requirements for Conveyance.--
(1) In general.--As a condition precedent of conveyance and
of the assumption of liability by the United States in
accordance with this Act, the Administrator shall accept the
final report or certification of the independent entity under
subparagraphs (A) through (E) of paragraph (3).
(2) Due diligence inspection.--
(A) In general.--As a condition precedent of conveyance and
of Federal participation described in this Act, Homestake
shall permit an independent entity that is selected jointly
by Homestake, the South Dakota Department of Environment and
Natural Resources, and the Administrator to conduct a due
diligence inspection of the Mine to determine whether any
condition of the Mine poses a substantial risk to human
health or the environment.
(B) Consultation.--As a condition precedent of the conduct
of a due diligence inspection, Homestake, the South Dakota
Department of Environment and Natural Resources, the
Administrator, and the independent entity shall consult and
agree upon the methodology and standards to be used, and
other factors to be considered, by the independent entity
in--
(i) the conduct of the due diligence inspection;
(ii) the scope of the due diligence inspection; and
(iii) the time and duration of the due diligence
inspection.
(3) Report to administrator.--
(A) In general.--The independent entity shall submit to the
Administrator a report that--
(i) describes the results of the due diligence inspection
under paragraph (2); and
(ii) identifies any condition of or in the Mine that poses
a substantial risk to human health or the environment.
(B) Procedure.--
(i) Draft report.--Before finalizing the report under this
paragraph, the independent entity shall--
(I) issue a draft report;
(II) submit to the Administrator a copy of the draft
report;
(III) issue a public notice requesting comments on the
draft report that requires all such comments to be filed not
later than 45 days after issuance of the public notice; and
(IV) during that 45-day public comment period, conduct at
least 1 public hearing in Lead, South Dakota, to receive
comments on the draft report.
(ii) Final report.--In the final report submitted to the
Administrator under this paragraph, the independent entity
shall respond to, and incorporate necessary changes suggested
by, the comments received on the draft report.
(4) Review and approval by administrator.--
(A) In general.--Not later than 60 days after receiving the
final report under paragraph (3), the Administrator shall--
(i) review the report; and
(ii) notify the State in writing of acceptance or rejection
of the final report.
(B) Conditions for rejection.--The Administrator may reject
the final report only if the Administrator identifies 1 or
more conditions of the Mine that--
(i) pose a substantial risk to human health or the
environment, as determined by the Administrator; and
(ii) require response action to correct each condition
causing the substantial risk to human health or the
environment identified in clause (i) before conveyance and
assumption by the Federal Government of liability concerning
the Mine under this Act.
(C) Remedial measures and certification.--
(i) Remediation.--
(I) In general.--If the Administrator rejects the final
report, Homestake may carry out, or permit the State to carry
out, such measures as are necessary to remove or remediate
any condition identified by the Administrator under
subparagraph (B)(i) as posing a substantial risk to human
health or the environment.
(II) Long-term remediation.--
(aa) In general.--In a case in which the Administrator
determines that a condition identified by the Administrator
under subparagraph (B)(i) requires continuing remediation, or
remediation that can only be completed as part of the final
closure of the Mine, it shall be a condition of conveyance
that Homestake or the National Science Foundation shall
deposit into the Fund such funds as are necessary to pay the
costs of that remediation.
(bb) Source of funds.--Any funds deposited by the National
Science Foundation under this paragraph shall be made
available from grant funding provided for the construction of
the Laboratory.
(ii) Certification.--After the remedial measures described
in clause (i)(I) are carried out and funds are deposited
under clause (i)(II), the independent entity may certify to
the Administrator that the conditions for rejection
identified by the Administrator under subparagraph (B) have
been corrected.
(iii) Acceptance or rejection of certification.--Not later
than 60 days after an independent entity makes a
certification under clause (ii), the Administrator shall
accept or reject the certification.
SEC. 5. LIABILITY.
(a) Assumption of Liability.--Notwithstanding any other
provision of law, on completion of the conveyance in
accordance with this Act, the United States shall assume any
and all liability relating to the Mine and laboratory,
including liability for--
(1) damages;
(2) reclamation;
(3) the costs of response to any hazardous substance (as
defined in section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601)), contaminant, or other material on, under, or relating
to the Mine and laboratory; and
(4) closure of the Mine and laboratory.
(b) Liability Protection.--On completion of the conveyance,
neither Homestake nor the State shall be--
(1) liable to any person or the United States for injuries,
costs, injunctive relief, reclamation, damages (including
damages to natural resources or the environment), or
expenses, or liable under any other claim (including claims
for indemnification or contribution, claims by third parties
for death, personal injury, illness, or loss of or damage to
property, or claims for economic loss), under any law
(including a regulation) for any claim arising out of or in
connection with contamination, pollution, or other condition,
use, or closure of the Mine and laboratory, regardless of
when a condition giving rise to the liability originated or
was discovered; or
(2) subject to any claim brought by or on behalf of the
United States under section 3730 of title 31, United States
Code, relating to negligence on the part of Homestake in
carrying out activities for the conveyance of, and in
conveying, the Mine.
(c) Indemnification.--Notwithstanding any other provision
of law, on completion of the conveyance in accordance with
this Act, the United States shall indemnify, defend, and hold
harmless Homestake and the State from and against any and all
liabilities and claims described in subsections (a) and (b).
(d) Waiver of Sovereign Immunity.--For the purposes of this
Act, the United States waives any claim to sovereign
immunity.
(e) Timing for Assumption of Liability.--If the conveyance
is effectuated by more than 1 legal transaction, the
assumption of liability, liability protection,
indemnification, and waiver of sovereign immunity provided
for under this section shall apply to each legal transaction,
as of the date on which the transaction is completed and with
respect to such portion of the Mine as is conveyed under that
transaction.
(f) Exceptions for Homestake Claims.--Nothing in this
section constitutes an assumption of liability by the United
States, or relief of liability of Homestake, for--
(1) any unemployment, worker's compensation, or other
employment-related claim of an employee of Homestake that
arose before the date of conveyance;
(2) any claim or cause of action, other than an
environmental claim or a claim concerning natural resources,
that arose before the date of conveyance;
(3) any violation of any provision of criminal law; or
(4) any claim, injury, damage, liability, or reclamation or
cleanup obligation with respect to any property or asset that
is not conveyed under this Act, except to the extent that any
such claim, injury, damage, liability, or reclamation or
cleanup obligation arises out of the continued existence or
use of the Mine subsequent to the date of conveyance.
SEC. 6. INSURANCE COVERAGE.
(a) Property and Liability Insurance.--
(1) In general.--To the maximum extent practicable, subject
to the requirements described in paragraph (2), the State
shall purchase property and liability insurance for the Mine
and the operation of the laboratory to provide coverage
against the liability described in subsections (a) and (b) of
section 5.
(2) Requirements.--The requirements referred to in
paragraph (1) are the following:
(A) Terms of insurance.--In determining the type, extent of
coverage, and policy limits of insurance purchased under this
subsection, the State shall--
(i) periodically consult with the Administrator and the
Director of the National Science Foundation; and
(ii) consider certain factors, including--
(I) the nature of the projects and experiments being
conducted in the laboratory;
(II) the availability of commercial insurance; and
(III) the amount of funding available to purchase
commercial insurance.
[[Page S8966]]
(B) Additional terms.--The insurance purchased by the State
under this subsection may provide coverage that is--
(i) secondary to the insurance purchased by project
sponsors; and
(ii) in excess of amounts available in the Fund to pay any
claim.
(3) Financing of insurance purchase.--
(A) In general.--Subject to section 7, the State may
finance the purchase of insurance required under this
subsection by using--
(i) funds made available from the Fund; and
(ii) such other funds as are received by the State for the
purchase of insurance for the Mine and laboratory.
(B) No requirement to use state funds.--Nothing in this Act
requires the State to use State funds to purchase insurance
required under this subsection.
(4) Additional insured.--Any insurance purchased by the
State under this subsection shall--
(A) name the United States as an additional insured; or
(B) otherwise provide that the United States is a
beneficiary of the insurance policy having the primary right
to enforce all rights of the United States under the policy.
(5) Termination of obligation to purchase insurance.--The
obligation of the State to purchase insurance under this
subsection shall terminate on the date on which--
(A) the Mine ceases to be used as a laboratory; or
(B) sufficient funding ceases to be available for the
operation and maintenance of the Mine or laboratory.
(b) Project Insurance.--
(1) In general.--The State, in consultation with the
Administrator and the Director of the National Science
Foundation, may require, as a condition of approval of a
project for the laboratory, that a project sponsor provide
property and liability insurance or other applicable coverage
for potential liability associated with the project described
in subsections (a) and (b) of section 5.
(2) Additional insured.--Any insurance obtained by the
project sponsor under this section shall--
(A) name the State and the United States as additional
insureds; or
(B) otherwise provide that the State and the United States
are beneficiaries of the insurance policy having the primary
right to enforce all rights under the policy.
(c) State Insurance.--
(1) In general.--To the extent required by State law, the
State shall purchase, with respect to the operation of the
Mine and the laboratory--
(A) unemployment compensation insurance; and
(B) worker's compensation insurance.
(2) Prohibition on use of funds from fund.--A State shall
not use funds from the Fund to carry out paragraph (1).
SEC. 7. ENVIRONMENT AND PROJECT TRUST FUND.
(a) Establishment.--On completion of the conveyance, the
State shall establish, in an interest-bearing account at an
accredited financial institution located within the State, an
Environment and Project Trust Fund.
(b) Amounts.--The Fund shall consist of--
(1) an annual deposit from the operation and maintenance
funding provided for the laboratory in an amount to be
determined--
(A) by the State, in consultation with the Director of the
National Science Foundation and the Administrator; and
(B) after taking into consideration--
(i) the nature of the projects and experiments being
conducted at the laboratory;
(ii) available amounts in the Fund;
(iii) any pending costs or claims that may be required to
be paid out of the Fund; and
(iv) the amount of funding required for future actions
associated with the closure of the facility;
(2) an amount determined by the State, in consultation with
the Director of the National Science Foundation and the
Administrator, and to be paid by the appropriate project
sponsor, for each project to be conducted, which amount--
(A) shall be used to pay--
(i) costs incurred in removing from the Mine or laboratory
equipment or other materials related to the project;
(ii) claims arising out of or in connection with the
project; and
(iii) if any portion of the amount remains after paying the
expenses described in clauses (i) and (ii), other costs
described in subsection (c); and
(B) may, at the discretion of the State, be assessed--
(i) annually; or
(ii) in a lump sum as a prerequisite to the approval of the
project;
(3) interest earned on amounts in the Fund, which amount of
interest shall be used only for a purpose described in
subsection (c); and
(4) all other funds received and designated by the State
for deposit in the Fund.
(c) Expenditures From Fund.--Amounts in the Fund shall be
used only for the purposes of funding--
(1) waste and hazardous substance removal or remediation,
or other environmental cleanup at the Mine;
(2) removal of equipment and material no longer used, or
necessary for use, in conjunction with a project conducted at
the laboratory;
(3) a claim arising out of or in connection with the
conducting of such a project;
(4) purchases of insurance by the State as required under
section 6;
(5) payments for and other costs relating to liability
described in section 5; and
(6) closure of the Mine and laboratory.
(d) Federal Payments From Fund.--The United States--
(1) to the extent the United States assumes liability under
section 5--
(A) shall be a beneficiary of the Fund; and
(B) may direct that amounts in the Fund be applied to pay
amounts and costs described in this section; and
(2) may take action to enforce the right of the United
States to receive 1 or more payments from the Fund.
(e) No Requirement of Deposit of Public Funds.--Nothing in
this section requires the State to deposit State funds as a
condition of the assumption by the United States of
liability, or the relief of the State or Homestake from
liability, under section 5.
SEC. 8. REQUIREMENTS FOR OPERATION OF LABORATORY.
After the conveyance, nothing in this Act exempts the
laboratory from compliance with any law (including a Federal
environmental law).
SEC. 9. CONTINGENCY.
This Act shall be effective contingent on the selection, by
the National Science Foundation, of the Mine as the site for
the laboratory.
SEC. 10. PAYMENT AND REIMBURSEMENT OF COSTS.
The United States may seek payment--
(1) from the Fund, under section 7(d), to pay or reimburse
the United States for amounts payable or liabilities incurred
under this Act; and
(2) from available insurance, to pay or reimburse the
United States and the Fund for amounts payable or liabilities
incurred under this Act.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
______
By Mr. BINGAMAN (for himself, Mr. Lugar, Mr. Torricelli, and Mr.
Corzine):
S. 1390. A bill to amend title XXI of the Social Security Act to
require the Secretary of Health and Human Services to make grants to
promote innovative outreach and enrollment efforts under the State
children's health insurance program, and for other purposes; to the
Committee on Finance.
Mr. BINGAMAN. Mr. President, the bipartisan legislation I am
introducing today with Senators Lugar, Torricelli, and Corzine entitled
the ``Children's Health Coverage Improvement Act of 2001'' would
improve outreach and enrollment efforts targeted at children to
dramatically reduce the number of uninsured children in this country.
This legislation is a companion bill to S. 1016, the ``Start Healthy,
Stay Healthy Act of 2001,'' which would expand and improve coverage to
children and pregnant women through Medicaid and the State Children's
Health Insurance Program, CHIP.
The legislation provides $100 million in grants annually from the
unspent allocations in CHIP to community-based public or non-profit
organizations, including community health centers, children's
hospitals, disproportionate share hospitals, local and county
government, and public health departments, for the purposes of
conducting innovative outreach and enrollment efforts.
The bill further clarifies that the outstationed workers requirement
in Medicaid, which requires that eligibility workers be available in
the public in our nation's community health centers and safety net
hospitals, shall also enroll children in CHIP if they are eligible for
coverage under that program as well.
As you are aware, the State Children's Health Insurance Program,
which was passed as part of the Balanced Budget Act of 1997, was the
largest expansion of health coverage since the enactment of Medicare
and Medicaid in 1965. The program, designed to cover low-income
children under age 18, provides on average $4 billion a year to the
states to either expand Medicaid, establish a separate state program
apart from Medicaid, or a combination of the two approaches.
Unfortunately, according to an Urban Institute report entitled How
Familiar Are Low-Income Parents with Medicaid and SCHIP?, it is
estimated that up to 80 percent of the 11 million uninsured children in
the country are eligible for but unenrolled in Medicaid or SCHIP. Thus,
ineligibility for coverage is no longer a barrier for the vast majority
of uninsured children. Instead, as the report notes, ``A major
challenge today is how to reach and enroll the millions of children who
are eligible but who remain uninsured.''
[[Page S8967]]
The biggest problems are knowledge gaps, confusion about program
rules, and problems created by bureaucratic barriers to coverage.
According to the study, ``Only 38 percent of low-income uninsured
children have parents who have heard of Medicaid or SCHIP programs and
who also understand the basic eligibility rules,'' Moreover, less than
half of parents, 47 percent, of low income uninsured children were even
aware of the separate SCHIP program.
As the authors conclude, ``For SCHIP expansions to reduce uninsurance
among children, it is critical that families know about the coverage
available through separate non-Medicaid SCHIP programs . . . .''
In addition, senior health researcher Peter J. Cunningham at the
Center for Studying Health System Change recently published an article
in Health Affairs entitled ``Targeting Communities With High Rates of
Uninsured Children'' that highlights that the ``key to getting children
insured'' is improved ``enrollment outreach.''
As the article notes, ``Policymakers have understood from the
beginning that the key to the success of SCHIP is in getting eligible
children to enroll . . . The results of this study suggest that
outreach activities and other efforts to stimulate enrollment need to
be especially focused in high-uninsurance areas, both because they
include a large concentration of the nation's uninsured children and
because take-up rates of public and private coverage have historically
been lower in these areas.''
Cunningham particularly notes that children in high-uninsured
communities are disproportionately Hispanic. As he points out,
``Hispanics typically have lower take-up rates for health insurance
programs for which they are eligible. This could be attributable to
immigration concerns, language barriers, lack of awareness of public
programs, or not understanding the roll that insurance coverage plays
in the United States in securing access to high-quality health care.''
As a result, the legislation also contains a provision giving
priority to community-based organizations in communities with high
rates of eligible but unenrolled children and in areas with high rates
of families for whom English is not their primary language. It is
certainly my desire for programs such as ``promotoras'' or community
health advisors to receive these grants, as they have been incredibly
effective in New Mexico in improving health insurance coverage to
children.
An estimated 11 million children under age 19 were without health
insurance in 1999, including 129,000 in New Mexico, representing 15
percent of all children in the United States and 22 percent of children
in New Mexico, the fourth highest rate of uninsured children in the
country. An estimated 103,000 of those children are in families with
incomes below 200 percent of poverty, so the majority of those children
are already eligible for but unenrolled in Medicaid.
Why is this important? According to the American College of
Physicians-American Society of Internal Medicine, uninsured children,
compared to the insured, are: up to 6 times more likely to have gone
without needed medical, dental or other health care; 2 times more
likely to have gone without a physician visit during the previous year;
up to 4 times more likely to have delayed seeking medical care; up to
10 times less likely to have a regular source of medical care; 1.7
times less likely to receive medical treatment for asthma; and, up to
30 percent less likely to receive medical attention for any injury.
In fact, one study has ``estimated that the 15 percent rise in the
number of children eligible for Medicaid between 1984 and 1992
decreased child mortality by 5 percent.'' This expansion of coverage
for children occurred, I would add, during the Reagan and Bush
Administrations, so this is clearly a bipartisan issue that deserves
further bipartisan action.
Mr. President, I urge this legislation's immediate passage. We can
and must do better for our children.
I ask unanimous consent for the text of the bill to be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1390
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 ``Children's Health Coverage
Improvement Act of 2001''.
SEC. 2. GRANTS TO PROMOTE INNOVATIVE OUTREACH AND ENROLLMENT
EFFORTS UNDER SCHIP.
(a) In General.--Section 2104(f) of the Social Security Act
(42 U.S.C. 1397dd(f)) is amended--
(1) by striking ``The Secretary'' and inserting the
following:
``(1) In general.--Subject to paragraph (2), the
Secretary''; and
(2) by adding at the end the following:
``(2) Grants to promote innovative outreach and enrollment
efforts.--
``(A) In general.--Prior to any redistribution under
paragraph (1) of unexpended allotments made to States under
subsection (b) or (c) for fiscal year 2000 and any fiscal
year thereafter, the Secretary shall--
``(i) reserve from such unexpended allotments the lesser of
$100,000,000 or the total amount of such unexpended
allotments for grants under this paragraph for the fiscal
year in which the redistribution occurs; and
``(ii) subject to subparagraph (B), use such reserved funds
to make grants to local and community-based public or
nonprofit organizations (including organizations involved in
pediatric advocacy, local and county governments, public
health departments, Federally-qualified health centers,
children's hospitals, and hospitals defined as
disproportionate share hospitals under the State plan under
title XIX) to conduct innovative outreach and enrollment
efforts that are consistent with section 2102(c) and to
promote parents' understanding of the importance of health
insurance coverage for children.
``(B) Priority for grants in certain areas.--In making
grants under subparagraph (A)(ii), the Secretary shall give
priority to grant applicants that propose to target the
outreach and enrollment efforts funded under the grant to
geographic areas--
``(i) with high rates of eligible but unenrolled children,
including such children who reside in rural areas; or
``(ii) with high rates of families for whom English is not
their primary language.
``(C) Applications.--An organization that desires to
receive a grant under this paragraph shall submit an
application to the Secretary in such form and manner, and
containing such information, as the Secretary may decide.''.
(b) Extending Use of Outstationed Workers To Accept Title
XXI Applications.--Section 1902(a)(55) of such Act (42 U.S.C.
1396a(a)(55)) is amended by inserting ``, and applications
for child health assistance under title XXI'' after
``(a)(10)(A)(ii)(IX)''.
______
By Mr. SCHUMER (for himself and Mr. DeWine):
S. 1391. A bill to establish a grant program for Sexual Assault
Forensic Examiners, and for other purposes; to the Committee on the
Judiciary.
Mr. SCHUMER. Mr. President, I rise today to introduce the Sexual
Assault Forensic Examiners Act of 2001, which is being co-sponsored by
Senator DeWine. This bill aims to vastly improve the care of victims of
sexual assault and help see to it that their attackers end up behind
bars.
Over 300,000 women are sexually assaulted each year in the United
States. Unlike all other violent crimes, rape is not declining in
frequency. When a woman suffers the horrific crime of sexual assault,
there are two minimal things our system owes her. First, we owe it to
her to do everything in our power to find and put her assailants behind
bars. Second, we owe her prompt and caring treatment when she's
reported the crime, which in itself is often an act of great courage.
Yet, all too often, we fail in these basic obligations.
Most rape victims who seek treatment go to hospital emergency rooms,
where they often wait hours in public waiting rooms. Some leave the
hospital altogether rather than endure extended delay, decreasing the
likelihood the offense will ever be reported or prosecuted. Once
victims are finally attended to, most victims are treated by a series
of rushed emergency room nurses, doctors and lab technicians who often
lack specialized training in the particular physical and psychological
care rape victims need. Emergency room nurses and doctors also
typically have little training in collecting, correctly handling and
preserving forensic evidence from rape victims. Moreover, many
hospitals lack the last forensic tools, such as dye that reveals
microscopic scratches, and colposcopes, which detect and photograph
otherwise invisible pelvic injuries. As a result, evidence is
mishandled or never uncovered in the first place--jeopardizing
prosecutions. Finally, emergency room personnel, already overworked,
are sometimes reluctant to cooperate with police and prosecutors in
sexual assault cases,
[[Page S8968]]
knowing this entails time-consuming interviews, witness preparation and
court appearances--to say nothing of unpleasant cross-examinations.
SAFE programs dramatically improve the situation. SAFE examiners are
specially trained in the latest techniques of forensic evidence
gathering. They cooperate fully with police and prosecutors, and their
specialized training and experience makes them better witnesses in
court. When defendants claim consent, physical evidence of force, which
can be difficult to uncover and explain to juries--can make all the
difference. Prosecutors support SAFE programs because they lead to more
prosecutions and convictions.
SAFE programs also provide better care to victims. Rather than face a
long public wait and a revolving door of emergency room care-givers,
victims treated by SAFEs are seen immediately in private, tell their
story to and receive care from a single attendant, and are treated with
greater sensitivity by examiners with specialized psychological
training.
There are now fewer than 750 SAFE programs in the United States,
serving less than 5 percent of all victims. Our bill aims to expand
SAFE programs by providing $10 million a year from 2002 to 2006 in
grants to new or existing SAFE programs. SAFE programs currently have
to compete against a myriad of other law enforcement and victims'
programs for federal funding under the Violence Against Women Act and
the Victims of Crime Act; by contrast, the SAFE Grant Act of 2001 will
provide a unique and direct source of Federal funding for SAFEs. The
Department of Justice, which is already responsible for developing
national standards for SAFE programs, will administer the grants,
ensure that recipients conform to the national standards, and give
priority to SAFE programs in currently undeserved areas.
Being the victims of a sexual assault is bad enough. We have to see
to it that the system doesn't exacerbate the problem with shoddy care
and mishandled cases. This bill should provide some help and I'm proud
to introduce it today.
Mr. DeWINE. Mr. President, today I rise as a cosponsor of the Sexual
Assault Forensic Examiners Act of 2001, sponsored by my colleague,
Senator Charles Schumer, to whom I am grateful for introducing this
important legislation. The purpose of this legislation is to
appropriate $10 million annually for the support of programs that
utilize Sexual Assault Forensic Nurses in the treatment and counseling
of rape victims.
Somewhere in America, a woman is sexually assaulted every two
minutes. In the past year alone, 307,000 women were sexually assaulted
in this country, and unlike other violent crimes, rape is not
decreasing in frequency. Unfortunately, the treatment that many rape
victims presently receive is far from adequate. Most victims of sexual
assault who report their crimes do so in a hospital emergency room,
where they frequently wait hours for treatment only to see doctors
without specialized training who lack the proper forensic tools for
evidence collection. Many victims report that their post-traumatic
experiences in hospitals constitute another humiliating victimization.
Victims of sexual assault should not be traumatized twice, especially
when there are better programs in place that could help them.
A Sexual Assault Forensic Examiner, often referred to as a SAFE, is a
registered nurse who has received advanced training and clinical
preparation in the forensic examination of sexual assault victims. As
opposed to rape survivors seen by typical emergency room personnel,
patients seen by these SAFEs rarely wait for treatment, see a single
specially trained examiner instead of any number of different doctors,
and receive sensitive, specialized care. The intervention of SAFEs in a
sex crimes case bolsters the odds of prosecution and conviction of
offenders, as these nurses are trained in the proper methods to utilize
``rape kits'' and collect forensic evidence. Furthermore, the expertise
of SAFE nurses renders them better witnesses than most emergency room
personnel during trials, which can make the difference between a
conviction and an acquittal. The Department of Justice reports that in
areas where SAFE programs have been established for more than 10 years,
there is a 96 percent rape conviction rate, as opposed to the 4%
average conviction rate in areas without SAFE facilities.
Five hundred SAFE programs currently exist in the United States, but
these programs treat less than 5 percent of all sexual assault victims.
Financial hurdles hinder the growth of SAFE programs, which frequently
compete with other law enforcement and victims' programs to obtain the
limited Federal funds available from existing sources. By creating a
specific and substantial source of Federal funding for SAFE programs,
more SAFE programs will be established, improving both the quality of
care provided to victims and the conviction rate of their assailants.
In the short time that I have been speaking here, two women became
victims of sexual violence. By lending your support to the ``Sexual
Assault Forensic Examiner Grant Act of 2001,'' you can help assure that
the hundreds of thousands of women who are raped each year receive the
sensitive medical care that hey both require and deserve.
______
By Mr. DODD (for himself and Mr. Lieberman):
S. 1392. A bill to establish procedures for the Bureau of Indian
Affairs of the Department of the Interior with respect to tribal
recognition; to the Committee on Indian Affairs.
______
By Mr. DODD (for himself and Mr. Lieberman):
S. 1393. A bill to provide grants to ensure full and fair
participation in certain decisionmaking processes at the Bureau of
Indian Affairs; to the Committee on Indian Affairs.
Mr. DODD. Mr. President, I rise today to introduce two pieces of
legislation intended to help reform and improve the process by which
the Federal Government acknowledges the sovereign rights of American
Indian tribes and their Governments.
I offer these bills with a sense of hope and with the expectation
that they will contribute to the larger national conversation about how
the Federal Government can best fulfill its obligations to America's
native peoples. Senator Inouye and Senator Campbell have provided
invaluable leadership on this issue and I hope that the bills I am
introducing today will serve as a modest, but useful contribution that
will help move us toward a more speedy and more fair recognition
process.
Currently there are more than 150 Indian groups that have petitions
for recognition as sovereign tribes pending before the Bureau of Indian
Affairs, BIA. No fewer than nine of those petitions are from groups
based in Connecticut.
Several recent actions by the BIA have generated considerable debate
about the timeliness, accuracy, and fairness of the BIA's actions. I
believe that careful reform of the recognition process can help prevent
future doubts before they emerge.
As we consider how best to reform the process for tribal recognition,
we ought to be guided by several firm principles: fairness, openness,
respect, and a common interest in bettering the quality of life for all
Americans. The two bills that I am introducing today are based on these
principles and I believe will bring us closer to our shared objectives.
Problems with the current recognition process have been well
documented. It is widely recognized that the process is taking too long
to resolve the claims of many Indian groups. It is also known that
towns and other interested parties often believe that their input is
ignored.
Last year, the then-Assistant Secretary for Indian Affairs testified
before the Senate Indian Affairs Committee on the BIA's tribal
recognition process. In a remarkable statement, he called for an
overhaul of that process. I do not disagree. In fact, I believe that we
have an obligation to restore public confidence in the recognition
process.
I have proposed a three-part legislative initiative to make the
process more accurate, more fair, and more timely. Those parts are:
one, provide more money to the Bureau of Indian Affairs. I have
previously called for increases in the budget for the BIA so it can
upgrade its recognition process. For several years, I have sought and
supported additional funding for the BIA's branch of acknowledgment and
[[Page S8969]]
research. The legislation that I am introducing today would
dramatically increase the BIA's budget for this office. Right now, the
BIA has about 150 recognition petitions pending. At the current pace,
it takes an average of eight to ten years for a tribe's petition to be
decided upon. It seems to me that is an unacceptably long amount of
time. Indeed, I can think of no other area of law where Americans must
wait as long to have their rights adjudicated and vindicated. Under any
scenario for reform, the BIA should have more resources to get the job
done efficiently, thoroughly, and most importantly, accurately. The
tribal recognition and Indian Bureau Enhancement Act, which I am
introducing would authorize $10 million to help BIA quickly address its
backlog. This funding increase is critical to help remedy deficiencies
in the process by which Indian groups are evaluated and recommended for
acknowledgment as sovereign legal entities.
Two, this legislation will provide assistance grants to local
governments and tribes so that they can fully participate in the
recognition process and other BIA proceedings. Any government or tribe
would have to demonstrate financial need as a condition of receiving
these funds. And they would have to demonstrate that a grant would
promote the interests of just administration at the BIA. My intention
here is to help improve the fact-finding process and ensure that the
Bureau's recognition decisions are based on the best available
information.
Three, I propose that we make the recognition process more
transparent. It bears noting that there has never been an unambiguous
grant of authority from Congress to the Bureau of Indian Affairs to
administer a program for the recognition of Indian Tribes. I believe
that it is time for Congress to make such a clear grant of authority.
The legislation I am proposing would essentially codify many of the
regulations that the BIA has been operating under for years. I believe
that it is in the interest of the general public and American's
sovereign tribes to ensure that those parts of the BIA regulations that
are working well will have the full force of statutory law. Relying on
statutory authority, rather than regulations, will afford the public
and tribes with a measure of certainty and permanency that has
heretofore been lacking. Anchoring the BIA's authority in legislation
will also restore Congress to an appropriate position where it can more
effectively monitor and oversee execution of its law.
Let me stress something about these proposed reforms: We should seek
not to dictate an outcome, but to ensure a process that is fair, open,
and respectful to all. That is the best guarantee of an outcome that is
just whatever it may be.
In concluding, I appreciate that the steps I announced today may
appear modest to some, excessive to others. I know they will not please
everyone. But they do, I believe, outline a series of actions that can
bring greater fairness, openness, and respect to this area of Federal
policy. That is my sincere hope, in any event.
I look forward to discussing these and other ideas with Chairman
Inouye, Senator Campbell, and their colleagues on the Indians Affairs
Committee. I submit these bills to them in humble recognition of their
wealth of wisdom and understanding about these matters. I also look
forward to discussing them with our other colleagues here in the Senate
and with members of the communities that may be impacted by these
proposals.
I ask unanimous consent that the text of both bills be printed in the
Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:
S. 1392
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Tribal
Recognition and Indian Bureau Enhancement Act of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. Definitions.
Sec. 5. Effect of acknowledgment of tribal existence.
Sec. 6. Scope.
Sec. 7. Letter of intent.
Sec. 8. Duties of the Department.
Sec. 9. Requirements for the documented petition.
Sec. 10. Mandatory criteria for Federal acknowledgment.
Sec. 11. Previous Federal acknowledgment.
Sec. 12. Notice of receipt of a letter of intent or documented
petition.
Sec. 13. Processing of the documented petition.
Sec. 14. Testimony and the opportunity to be heard.
Sec. 15. Written submissions by interested parties.
Sec. 16. Publication of final determination.
Sec. 17. Independent review, reconsideration, and final action.
Sec. 18. Implementation of decision acknowledging status as an Indian
tribe.
Sec. 19. Authorization of appropriations.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The United States has an obligation to recognize and
respect the sovereignty of Native American peoples who have
maintained their social, cultural, and political identity.
(2) All Native American tribal governments that represent
tribes that have maintained their social, cultural, and
political identity, to the extent possible within the context
of history, are entitled to establish government-to-
government relations with the United States and are entitled
to the rights appertaining to sovereign governments.
(3) The Bureau of Indian Affairs of the Department of the
Interior exercises responsibility for determining whether
Native American groups constitute ``Federal Tribes'' and are
therefore entitled to be recognized by the United States as
sovereign nations.
(4) In recent years, the decisionmaking process used by the
Bureau of Indian Affairs to resolve claims of tribal
sovereignty has been widely criticized.
(5) In order to ensure continued public confidence in the
Federal Government's decisions pertaining to tribal
recognition, it is necessary to reform the recognition
process.
SEC. 3. PURPOSES.
The purposes of this Act are as follows:
(1) To establish administrative procedures to extend
Federal recognition to certain Indian groups.
(2) To extend to Indian groups that are determined to be
Indian tribes the protection, services, and benefits
available from the Federal Government pursuant to the Federal
trust responsibility with respect to Indian tribes.
(3) To extend to Indian groups that are determined to be
Indian tribes the immunities and privileges available to
other federally acknowledged Indian tribes by virtue of their
status as Indian tribes with a government-to-government
relationship with the United States.
(4) To ensure that when the Federal Government extends
acknowledgment to an Indian group, the Federal Government
does so based upon clear, factual evidence derived from an
open and objective administrative process.
(5) To provide clear and consistent standards of
administrative review of documented petitions for Federal
acknowledgment.
(6) To clarify evidentiary standards and expedite the
administrative review process by providing adequate resources
to process petitions.
SEC. 4. DEFINITIONS.
In this Act:
(1) Bureau.--The term ``Bureau'' means the Bureau of Indian
Affairs of the Department of the Interior.
(2) Department.--The term ``Department'' means the
Department of the Interior.
(3) Documented petition.--The term ``documented petition''
means the detailed arguments made by a petitioner to
substantiate the petitioner's claim to continuous existence
as an Indian tribe, together with the factual exposition and
all documentary evidence necessary to demonstrate that the
arguments address the mandatory criteria set forth in section
10.
(4) Historically, historical, or history.--The term
``historically'', ``historical'', or ``history'' means dating
from the first sustained contact with non-Indians.
(5) Indian group or group.--The term ``Indian group'' or
``group'' means any Indian or Alaska Native aggregation
within the continental United States that the Secretary does
not acknowledge to be an Indian tribe.
(6) Indian tribe; tribe.--The terms ``Indian tribe'' and
``tribe'' mean any group that the Secretary determines to
have met the mandatory criteria set forth in section 10.
(7) Petitioner.--The term ``petitioner'' means any entity
that has submitted a letter of intent to the Secretary
requesting acknowledgment that the entity is an Indian tribe.
(8) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
SEC. 5. EFFECT OF ACKNOWLEDGMENT OF TRIBAL EXISTENCE.
Acknowledgment of an Indian tribe under this Act--
(1) confers the protection, services, and benefits of the
Federal Government available to Indian tribes by virtue of
their status as tribes;
(2) means that the tribe is entitled to the immunities and
privileges available to other
[[Page S8970]]
federally acknowledged Indian tribes by virtue of their
government-to-government relationship with the United States;
(3) means that the United States recognizes that the tribe
has the responsibilities, powers, limitations, and
obligations of a federally acknowledged Indian tribe; and
(4) subjects the Indian tribe to the same authority of
Congress and the United States to which other federally
acknowledged tribes are subjected.
SEC. 6. SCOPE.
(a) In General.--This Act applies only to those Native
American Indian groups indigenous to the continental United
States which are not currently acknowledged as Indian tribes
by the Department. It is intended to apply only to groups
that can present evidence of a substantially continuous
tribal existence and which have functioned as autonomous
entities throughout history until the date of the submission
of the documented petition.
(b) Exclusions.--The procedures established under this Act
shall not apply to any of the following:
(1) Any Indian tribe, organized band, pueblo, Alaska Native
village, or community that, as of the date of enactment of
this Act, has been acknowledged as such and is receiving
services from the Bureau.
(2) An association, organization, corporation, or group of
any character that has been formed after December 31, 2002.
(3) Splinter groups, political factions, communities, or
groups of any character that separate from the main body of a
currently acknowledged tribe, except that any such group that
can establish clearly that the group has functioned
throughout history until the date of the submission of the
documented petition as an autonomous tribal entity may be
acknowledged under this Act, even though the group has been
regarded by some as part of or has been associated in some
manner with an acknowledged North American Indian tribe.
(4) Any group which is, or the members of which are,
subject to congressional legislation terminating or
forbidding the Federal relationship.
(5) Any group that previously petitioned and was denied
Federal acknowledgment under part 83 of title 25 of the Code
of Federal Regulations prior to the date of enactment of this
Act, including reorganized or reconstituted petitioners
previously denied, or splinter groups, spinoffs, or component
groups of any type that were once part of petitioners
previously denied.
(c) Pending Petitions.--Any Indian group whose documented
petition is under active consideration under the regulations
referred to in subsection (b)(5) as of the date of enactment
of this Act, and for which a determination is not final and
effective as of such date, may opt to have their petitioning
process completed in accordance with this Act. Any such group
may request a suspension of consideration in accordance with
the provisions of section 83.10(g) of title 25 of the Code of
Federal Regulations, as in effect on the date of enactment of
this Act, of not more than 180 days in order to provide
additional information or argument.
SEC. 7. LETTER OF INTENT.
(a) In General.--Any Indian group in the continental United
States that desires to be acknowledged as an Indian tribe and
that can satisfy the mandatory criteria set forth in section
10 may submit a letter of intent to the Secretary. A letter
of intent may be filed in advance of, or at the same time as,
a group's documented petition.
(b) Approval of Governing Body.--A letter of intent must be
produced, dated, and signed by the governing body of the
Indian group submitting the letter.
SEC. 8. DUTIES OF THE DEPARTMENT.
(a) Publication of List of Indian Tribes.--The Department
shall publish in the Federal Register, no less frequently
than every 3 years, a list of all Indian tribes entitled to
receive services from the Bureau by virtue of their status as
Indian tribes. The list may be published more frequently, if
the Secretary deems it necessary.
(b) Guidelines for Preparation of Documented Petitions.--
(1) In general.--The Secretary shall make available
guidelines for the preparation of documented petitions. Such
guidelines shall include the following:
(A) An explanation of the criteria and other provisions
relevant to the Department's consideration of a documented
petition.
(B) A discussion of the types of evidence which may be used
to demonstrate satisfaction or particular criteria.
(C) General suggestions and guidelines on how and where to
conduct research.
(D) An example of a documented petition format, except that
such example shall not preclude the use of any other format.
(2) Supplementation and revision.--The Secretary may
supplement or update the guidelines as necessary.
(c) Assistance.--The Department shall, upon request,
provide petitioners with suggestions and advice regarding
preparation of the documented petition. The Department shall
not be responsible for any actual research necessary to
prepare such petition.
(d) Notice Regarding Current Petitions.--Any Indian group
whose documented petition is under active consideration as of
the date of enactment of this Act shall be notified of the
opportunity under section 6(c) to choose whether to complete
their petitioning process under the provisions of this Act or
under the provisions of part 83 of title 25 of the Code of
Federal Regulations, as in effect on the day before such
date.
(e) Notice to Groups With a Letter of Intent.--Any group
that has submitted a letter of intent to the Department as of
the date of enactment of this Act shall be notified that any
documented petition submitted by the group shall be
considered under the provisions of this Act.
SEC. 9. REQUIREMENTS FOR THE DOCUMENTED PETITION.
(a) In General.--The documented petition may be in any
readable form that contains detailed, specific evidence in
support of a request to the Secretary to acknowledge tribal
existence.
(b) Approval of Governing Body.--The documented petition
must include a certification, signed and dated by members of
the group's governing body, stating that it is the group's
official documented petition.
(c) Satisfaction of Mandatory Criteria.--A petitioner must
satisfy all of the mandatory criteria set forth in section 10
in order for tribal existence to be acknowledged. The
documented petition must include thorough explanations and
supporting documentation in response to all of such criteria.
(d) Standards for Denial.--
(1) In general.--Subject to paragraphs (2) and (3), a
petitioner shall not be acknowledged if the evidence
presented by the petitioner or others is insufficient to
demonstrate that the petitioner meets each of the mandatory
criteria in section 10.
(2) Reasonable likelihood of validity.--A criterion shall
be considered met if the Secretary finds that it is more
likely than not that the evidence presented demonstrates the
establishment of the criterion.
(3) Conclusive proof not required.--Conclusive proof of the
facts relating to a criterion shall not be required in order
for the criterion to be considered met.
(e) Consideration of Historical Situations.--Evaluation of
petitions shall take into account historical situations and
time periods for which evidence is demonstrably limited or
not available. The limitations inherent in demonstrating the
historical existence of community and political influence or
authority shall also be taken into account. Existence of
community and political influence or authority shall be
demonstrated on a substantially continuous basis, but such
demonstration does not require meeting these criteria at
every point in time. Fluctuations in tribal activity during
various years shall not in themselves be a cause for denial
of acknowledgment under these criteria.
SEC. 10. MANDATORY CRITERIA FOR FEDERAL ACKNOWLEDGMENT.
The mandatory criteria for Federal acknowledgment are the
following:
(1) Identification on a substantially continuous basis.--
The petitioner has been identified as an American Indian
entity on a substantially continuous basis since 1900.
Evidence that the group's character as an Indian entity has
from time to time been denied shall not be considered to be
conclusive evidence that this criterion has not been met.
Evidence to be relied upon in determining a group's Indian
identity may consist of any 1, or a combination, of the
following, as well as other evidence of identification by
other than the petitioner itself or its members:
(A) Identification as an Indian entity by Federal
authorities.
(B) Relationships with State governments based on
identification of the group as Indian.
(C) Dealings with a county, parish, or other local
government in a relationship based on the group's Indian
identity.
(D) Identification as an Indian entity by anthropologists,
historians, or other scholars.
(E) Identification as an Indian entity in newspapers and
books.
(F) Identification as an Indian entity in relationships
with Indian tribes or with national, regional, or State
Indian organizations.
(2) Distinct community.--
(A) In general.--A predominant portion of the petitioning
group comprises a distinct community and has existed as a
community from historical times until the date of the
submission of the documented petition. This criterion may be
demonstrated by some combination of the following evidence or
other evidence:
(i) Significant rates of marriage within the group, or, as
may be culturally required, patterned out-marriages with
other Indian populations.
(ii) Significant social relationships connecting individual
members.
(iii) Significant rates of informal social interaction
which exist broadly among the members of a group.
(iv) A significant degree of shared or cooperative labor or
other economic activity among the membership.
(v) Evidence of strong patterns of discrimination or other
social distinctions by nonmembers.
(vi) Shared sacred or secular ritual activity encompassing
most of the group.
(vii) Cultural patterns shared among a significant portion
of the group that are different from those of the non-Indian
populations with whom it interacts. Such patterns must
function as more than a symbolic identification of the group
as Indian, and may include language, kinship organization, or
religious beliefs and practices.
[[Page S8971]]
(viii) The persistence of a named, collective Indian
identity continuously over a period of more than 50 years,
notwithstanding changes in name.
(ix) A demonstration of historical political influence
under the criterion in paragraph (3) shall be evidence for
demonstrating historical community.
(B) Sufficient evidence.--A petitioner shall be considered
to have provided sufficient evidence of community at a given
point in time if evidence is provided to demonstrate any 1 of
the following:
(i) More than 50 percent of the members reside in a
geographical area exclusively or almost exclusively composed
of members of the group, and the balance of the group
maintains consistent interaction with some members of the
community.
(ii) At least 50 percent of the marriages in the group are
between members of the group.
(iii) At least 50 percent of the group members maintain
distinct cultural patterns such as language, kinship
organization, or religious beliefs and practices.
(iv) There are distinct community social institutions
encompassing most of the members, such as kinship
organizations, formal or informal economic cooperation, or
religious organizations.
(v) The group has met the criterion in paragraph (3) using
evidence described in paragraph (3)(A).
(3) Political influence or authority.--
(A) In general.--The petitioner has maintained political
influence or authority over its members as an autonomous
entity from historical times until the date of the submission
of the documented petition. This criterion may be
demonstrated by some combination of the following evidence or
by other evidence:
(i) The group is able to mobilize significant numbers of
members and significant resources from its members for group
purposes.
(ii) Most of the membership considers issues acted upon or
actions taken by group leaders or governing bodies to be of
importance.
(iii) There is widespread knowledge, communication, and
involvement in political processes by most of the group's
members.
(iv) The group meets the criterion in paragraph (2) at more
than a minimal level.
(v) There are internal conflicts which show controversy
over valued group goals, properties, policies, processes, or
decisions.
(B) Sufficient evidence.--
(i) In general.--A petitioning group shall be considered to
have provided sufficient evidence to demonstrate the exercise
of political influence or authority at a given point in time
by demonstrating that group leaders or other mechanisms exist
or existed that--
(I) allocate group resources such as land and residence
rights on a consistent basis;
(II) settle disputes between members or subgroups by
mediation or other means on a regular basis;
(III) exert strong influence on the behavior of individual
members, such as the establishment or maintenance of norms
and the enforcement of sanctions to direct or control
behavior; or
(IV) organize or influence economic subsistence activities
among the members, including shared or cooperative labor.
(ii) Presumptive evidence.--A group that has met the
requirements in paragraph (2)(A) at a given point in time
shall be considered to have provided sufficient evidence to
meet this criterion at that point in time.
(4) Governing document and membership criteria.--Submission
of a copy of the group's governing document and membership
criteria. In the absence of a written document, the
petitioner must provide a statement describing in full its
membership criteria and current governing procedures.
(5) Descendants from a historical indian tribe.--
(A) In general.--The petitioner's membership consists of
individuals who descend from a historical Indian tribe or
from historical Indian tribes which combined and functioned
as a single autonomous political entity. Evidence acceptable
to the Secretary which can be used for this purpose includes
the following:
(i) Rolls prepared by the Secretary on a descendancy basis
for purposes of distributing claims money, providing
allotments, or other purposes.
(ii) Federal, State, or other official records or evidence
identifying group members or ancestors of such members as
being descendants of a historical tribe or tribes that
combined and functioned as a single autonomous political
entity.
(iii) Church, school, and other similar enrollment records
identifying group members or ancestors of such members as
being descendants of a historical tribe or tribes that
combined and functioned as a single autonomous political
entity.
(iv) Affidavits of recognition by tribal elders, leaders,
or the tribal governing body identifying group members or
ancestors of such members as being descendants of a
historical tribe or tribes that combined and functioned as a
single autonomous political entity.
(v) Other records or evidence identifying members or
ancestors of such members as being descendants of a
historical tribe or tribes that combined and functioned as a
single autonomous political entity.
(B) Certified membership list.--The petitioner must provide
an official membership list, separately certified by the
group's governing body, of all known current members of the
group. The list must include each member's full name
(including maiden name), date of birth, and current
residential address. The petitioner shall also provide a copy
of each available former list of members based on the group's
own defined criteria, as well as a statement describing the
circumstances surrounding the preparation of the current list
and, insofar as possible, the circumstances surrounding the
preparation of former lists.
(6) Membership is composed principally of individuals who
are not members of an acknowledged tribe.--
(A) In general.--The membership of the petitioning group is
composed principally of individuals who are not members of
any acknowledged North American Indian tribe.
(B) Exception.--A petitioning group may be acknowledged
even if its membership is composed principally of individuals
whose names have appeared on rolls of, or who have been
otherwise associated with, an acknowledged Indian tribe, if
the group establishes that it has functioned throughout
history until the date of the submission of the documented
petition as a separate and autonomous Indian tribal entity,
that its members do not maintain a bilateral political
relationship with the acknowledged tribe, and that its
members have provided written confirmation of their
membership in the petitioning group.
(7) No legislation terminates or prohibits the federal
relationship.--Neither the petitioner nor its members are the
subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship.
SEC. 11. PREVIOUS FEDERAL ACKNOWLEDGMENT.
The provisions of section 83.8 of title 25 of the Code of
Federal Regulations, as in effect on the date of enactment of
this Act, shall apply with respect to petitioners claiming
previous Federal acknowledgment under this Act.
SEC. 12. NOTICE OF RECEIPT OF A LETTER OF INTENT OR
DOCUMENTED PETITION.
(a) Notice and Publication.--
(1) In general.--Within 30 days after receiving a letter of
intent, or a documented petition if a letter of intent has
not previously been received and noticed, the Secretary shall
acknowledge such receipt in writing and shall have published
within 60 days in the Federal Register a notice of such
receipt.
(2) Requirements.--The notice published in the Federal
Register shall include the following:
(A) The name, location, and mailing address of the
petitioner and such other information as will identify the
entity submitting the letter of intent or documented
petition.
(B) The date the letter or petition was received.
(C) Information regarding how interested and informed
parties may submit factual or legal arguments in support of,
or in opposition to, the petitioner's request for
acknowledgment or to request to be kept informed of all
general actions affecting the petition.
(D) Information regarding where a copy of the letter of
intent and the documented petition may be examined.
(b) Other Notification.--The Secretary shall notify, in
writing, the chief executive officer, members of Congress,
and attorney general of the State in which a petitioner is
located and of each State in which the petitioner
historically has been located. The Secretary shall also
notify any recognized tribe and any other petitioner which
appears to have a relationship with the petitioner, including
a historical relationship, or which may otherwise be
considered to have a potential interest in the acknowledgment
determination. The Secretary shall also notify the chief
executive officers of the counties and municipalities located
in the geographic area historically occupied by the
petitioning group.
(c) Other Publication.--The Secretary shall also publish
the notice of receipt of the letter of intent, or documented
petition if a letter of intent has not been previously
received, in a major newspaper or newspapers of general
circulation in the town or city nearest to the petitioner.
Such notice shall include the information required under
subsection (a)(2).
SEC. 13. PROCESSING OF THE DOCUMENTED PETITION.
The provisions of section 83.10 of title 25 of the Code of
Federal Regulations, as in effect on the date of enactment of
this Act, shall apply with respect to the processing of a
documented petition under this Act.
SEC. 14. TESTIMONY AND THE OPPORTUNITY TO BE HEARD.
(a) In General.--The Secretary shall consider all relevant
evidence from any interested party including neighboring
municipalities that possess information bearing on whether to
recognize an Indian group or not.
(b) Hearing Upon Request.--Upon an interested party's
request, and for good cause shown, the Secretary shall
conduct a formal hearing at which all interested parties may
present evidence, call witnesses, cross-examine witnesses, or
rebut evidence in the record or presented by other parties
during the hearing.
(c) Transcript Required.--A transcript of any hearing held
under this section shall be made and shall become part of the
administrative record upon which the Secretary is entitled to
rely in determining whether to recognize an Indian group.
[[Page S8972]]
SEC. 15. WRITTEN SUBMISSIONS BY INTERESTED PARTIES.
The Secretary shall consider any written materials
submitted to the Bureau from any interested party, including
neighboring municipalities, that possess information bearing
on whether to recognize an Indian group.
SEC. 16. PUBLICATION OF FINAL DETERMINATION.
The Secretary shall publish in the Federal Register a
complete and detailed explanation of the Secretary's final
decision regarding a documented petition under this Act,
including express finding of facts and of law with regard to
each of the critera listed in section 10.
SEC. 17. INDEPENDENT REVIEW, RECONSIDERATION, AND FINAL
ACTION.
The provisions of section 83.11 of title 25 of the Code of
Federal Regulations, as in effect on the date of enactment of
this Act, shall apply with respect to the independent review,
reconsideration, and final action of the Secretary on a
documented petition under this Act.
SEC. 18. IMPLEMENTATION OF DECISION ACKNOWLEDGING STATUS AS
AN INDIAN TRIBE.
The provisions of section 83.12 of title 25 of the Code of
Federal Regulations, as in effect on the date of enactment of
this Act, shall apply with respect to the implementation of a
decision under this Act acknowledging a petitioner as an
Indian tribe.
SEC. 19. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to carry out this
Act, $10,000,000 for fiscal year 2002 and each fiscal year
thereafter.
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S. 1393
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. GRANT PROGRAM.
(a) In General.--To the extent that amounts are
appropriated and acceptable requests are submitted, the
Secretary shall award grants to eligible local governments
and eligible Indian groups to promote the participation of
such governments and groups in the decisionmaking process
related to the actions described in subsection (b), if the
Secretary determines that the assistance provided under such
a grant is necessary to protect the interests of the
government or group and would otherwise promote the interests
of just administration within the Bureau of Indian Affairs.
(b) Actions For Which Grants May Be Available.--The
Secretary may award grants under this section for
participation assistance related to the following actions:
(1) Acknowledgment.--An Indian group is seeking Federal
acknowledgment or recognition, or a terminated Indian tribe
is seeking to be restored to Federally-recognized status.
(2) Trust status.--A Federally-recognized Indian tribe has
asserted trust status with respect to land within the
boundaries of an area over which a local government currently
exercises jurisdiction.
(3) Trust land.--A Federally-recognized Indian tribe has
filed a petition with the Secretary of the Interior
requesting that land within the boundaries of an area over
which a local government is currently exercising jurisdiction
be taken into trust.
(4) Land claims.--An Indian group or a Federally-recognized
Indian tribe is asserting a claim to land based upon a treaty
or a law specifically applicable to transfers of land or
natural resources from, by, or on behalf of any Indian,
Indian tribe, or group, or band of Indians (including the
Acts commonly known as the Trade and Intercourse Acts (1
Stat. 137; 2 Stat. 139; and 4 Stat. 729).
(5) Other actions.--Any other action or proposed action
relating to an Indian group or Federally-recognized Indian
tribe if the Secretary determines that the action or proposed
action is likely to significantly affect the citizens
represented by a local government.
(c) Amount of Grants.--Grants awarded under this section to
a local government or eligible Indian group for any one
action may not exceed $500,000 in any fiscal year.
(d) Definitions.--In this section:
(1) Acknowledged indian tribe.--The term ``acknowledged
Indian tribe'' means any Indian tribe, band, nation, pueblo,
or other organized group or community which is recognized as
eligible for the special programs and services provided by
the United States to Indians because of their status as
Indians.
(2) Eligible indian group.--The term ``eligible Indian
group'' means a group that--
(A) is determined by the Secretary to be in need of
financial assistance to facilitate fair participation in a
pending action described in subsection (b);
(B) is an acknowledged Indian Tribe or has petitioned the
Secretary to be acknowledged as a Indian Tribe; and
(C) petitions the Secretary for a grant under subsection
(a).
(3) Eligible local government.--The term ``eligible local
government'' means a municipality or county that--
(A) is determined by the Secretary to be in need of
financial assistance to facilitate fair participation in a
pending action described in subsection (b); and
(B) petitions the Secretary for a grant under subsection
(a).
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(e) Effective Date.--Grants awarded under this section may
only be applied to expenses incurred after the date of
enactment of this Act.
(f) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $8,000,000 for
each fiscal year that begins after the date of the enactment
of this Act.
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