[Congressional Record: November 19, 1999 (Senate)]
[Page S14986-S15059]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr19no99pt2-163]


   DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2000--CONFERENCE REPORT--
                                Resumed

                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will state.
  The legislative assistant read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the
     provisions of rule XXII of the Standing Rules of the Senate,
     do hereby move to bring to a close debate on the conference
     report to accompany the District of Columbia appropriations
     bill.
         Trent Lott, Ted Stevens, Larry E. Craig, Judd Gregg, Tim
           Hutchinson, Don Nickles, Mike Crapo, Connie Mack, Slade
           Gorton, Ben Nighthorse Campbell, Arlen Specter, Pat
           Roberts, Chuck Hagel, Richard Shelby, Thad Cochran, and
           John Warner.
  The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that the conference report accompanying H.R. 3194, an act making
appropriations for the government of the District of Columbia and other
activities chargeable in whole or in part against revenues of said
District for the fiscal year ending September 30, 2000, shall be
brought to a close?
  The yeas and nays are required under the rule. The clerk will call
the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oregon (Mr. Smith), the
Senator from Arizona (Mr. McCain), and the Senator from Washington (Mr.
Gorton) are necessarily absent.
  I further announce that, if present and voting, the Senator from
Oregon (Mr. Smith) would vote yea.
  Mr. REID. I announce that the Senator from Washington (Mrs. Murray)
is absent attending a funeral.
  The yeas and nays resulted--yeas 87, nays 9, as follows:

                      [Rollcall Vote No. 373 Leg.]

                                YEAS--87

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bunning
     Burns
     Byrd
     Campbell
     Chafee, L.
     Cleland
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Domenici
     Edwards
     Enzi
     Feinstein
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McConnell
     Mikulski
     Moynihan
     Murkowski
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wyden

                                NAYS--9

     Conrad
     Dorgan
     Durbin
     Feingold
     Fitzgerald
     Graham
     Grams
     Kohl
     Wellstone

                             NOT VOTING--4

     Gorton
     McCain
     Murray
     Smith (OR)
  The PRESIDING OFFICER. On this vote, the ayes are 87, the nays are 9.
Three-fifths of the Senators duly chosen and sworn having he voted in
the affirmative, the motion is agreed to.

                       FISHERIES RESEARCH VESSEL

  Mr. LOTT. Mr. President, the NOAA budget includes $51.56 million in
funds to procure the first of four state-of-the-art fishery research
vessels to conduct critical research on our Nation's fishery resources.
This is an important step in providing for sustainable fisheries for
our fishermen, U.S. trade, and U.S. consumers. It is my understanding
that these ships will be some of the most technically complex research
vessels in the world. It Is critical that the procurement of thee ships
reflect this complexity, and that all U.S. shipbuilders with technical
expertise in oceanographic research ships will have the opportunity to
offer their expertise to the Government. Is it the Senator's
understanding that this solicitation will be open to all U.S.
shipbuilders, without set-asides that limit competition?
  Mr. STEVENS. The Majority Leader is correct. In providing for the
first of these ships to be built, we understood that the public will
benefit from free and unrestricted competition on this vessel. The
demands placed on our fishery management system dictate that

[[Page S14987]]

we procure the most technically sophisticated ship possible from our
U.S. shipbuilding industry. The only way to guarantee this result is to
conduct a free and open competition among all U.S. shipbuilders and
meet with Dr. Baker, the Director of NOAA, who has agreed to homeport
this vessel in Kodiak. By locating it mid way between the Gulf of
Alaska and the Bering Sea, it will have ready access to the Nation's
two largest fisheries.
  Mr. CRAIG. Mr. President, my friends from Alaska, Senator Murkowski,
and Nevada, Senator Reid, have worked hard to protect the mining jobs
in their States and in mine, and I extend my thanks to them for working
with me to keep the Department of Interior from mindlessly destroying
jobs and lives by trying to rewrite the Mining Law. We want to make
sure the intent of the provision on mill sites included in the
Department of Interior portion of the appropriations bill is clear, and
would like to ask your clarification on a few points.
  Mr. REID. I thank my friend from Idaho for his hard work. I want to
confirm my understanding of one absolutely critical thing with respect
to the language in Section 337 protecting plans of operations submitted
prior to November 7, 1997. It is my understanding that the language
covers revisions, modifications, and amendments to such plans that are
made before such plans are fully approved by the BLM or Forest Service.
If an as yet unapproved plan of operations was submitted prior to
November 7, 1997 and revised earlier this year, for instance, then the
proposed operation, as revised, would be protected. It is the
operation, not a specific property position--whether mining claims or
mill sites--that is protected. This is very important to my State and I
ask the chairman to specifically confirm my understanding.
  Mr. STEVENS. I can say unequivocally that your understanding is
correct. We all know that plans and operations are often revised by the
applicant before being finally approved. Indeed, some revisions are
required by the BLM or Forest Service during the plan review process.
It is the clear intent of the language to protect revisions made prior
to the plan's final approval. It is the operation, not a specific
property position (whether mining claims or mill sites), that is
protected. Anything less would be grossly inequitable and directly
contrary to the clear intent of the conference.
  Mr. MURKOWSKI. I thank my friends from Alaska and Nevada for that
clarification. It is also my understanding that the provision is
intended to protect large investments made in mining operations
approved by the Department of Interior under its old interpretation of
the law. Frankly, it would be shameful for us to endorse the actions of
a Federal agency that approves a project, allows the proponent to spend
millions of dollars to develop it, and then changes its mind about what
the law says and on that basis shuts the operation down. I understand
that the provision would protect these enormous investments and the
jobs they create from such arbitrary action by the Department of
Interior.
  Mr. STEVENS. My friend is right. In compromising the House and Senate
versions, our intention was to avoid the retroactive application of the
Solicitor's opinion of November 7, 1997 and the resulting destruction
of existing jobs and investments.
  Mr. MURKOWSKI. I thank the chairman for that clarification. Finally,
as my friend knows, mining operations are large, complex undertakings,
and circumstances change all the time, requiring changes in the plan of
operations. Miners must ask the BLM and Forest Service to approve
amendments to their plans all the time in order to keep operating. In
fact, the BLM and Forest Service often require these miners to amend
their plans. I'm concerned that unless these types of amendments to
existing plans are protected, the provision we are adopting would be of
very little value. The BLM or the Forest Service could simply require
an operator of a large existing mine to amend its plan of operations,
and then deny the plan amendment and shut down the operation on the
basis of the Solicitor's opinion. I would like clarification that
amendments to existing plans are protected by the provision.
  Mr. STEVENS. I assure my colleague that it was never our intent to
shut down existing operations under any circumstances. Applying the
opinion to these existing operations through the back door of a plan
amendment would undermine the entire provision and make it meaningless.
Anybody who knows the mining industry knows that plan amendments are
routine. We want operators to be able to amend their plans when
necessary to make them better. The provision covers such amendments,
and protects them from the legal interpretation contained in the
Solicitor's opinion.
  Mr. REID. I thank my friends from Alaska, the committee chairmen, for
these important clarifications.
  Mr. LOTT. Mr. President, for many years I have been working with the
Minority Leader, Senator Daschle, to develop and enact legislation to
provide liability relief for recyclers of scrap metal and other
material, under the Superfund program. I am pleased that we have been
able to work together to reach a successful resolution on this issue,
and that the legislation incorporates the agreement of a broad spectrum
of parties.
  Mr. DASCHLE. I have appreciated the hard work of the Majority Leader
on this issue, and I am pleased that this legislation has been included
as part of the omnibus appropriations bill. I hope that this provision
will serve to achieve our goal of encouraging recycling.
  It is also my understanding that the language of the bill is not
intended to exempt from liability parties who had reason to believe
that the recyclable material originated from the portion of a DOD, DOE,
NRC or Agreement State-licensed facility where source, byproduct or
special nuclear material, as defined in the Atomic Energy Act, was
processed, utilized or managed. Is it your understanding that the
agreement does not cover these materials?
  Mr. LOTT. Yes, that is correct.
  Mr. DASCHLE. Mr. President, this issue is of great significance to
many of my colleagues and to members of the public. In particular, it
is of great interest to the Senator from Arkansas, and I deeply
appreciate her leadership on this issue.
  Mrs. LINCOLN. Mr. President, for the last six years I have worked in
Congress to provide relief from liability to legitimate recyclers.
Congress never intended to create a disincentive to recycle when it
created the Superfund program, and for that reason, I am delighted that
this legislation was included in the omnibus appropriations bill.
  In addition, I agree with Senator Daschle's clarification of the
intent of this bill. I am very concerned about the possibility that
this legislation could be misinterpreted to relieve from Superfund
liability persons who release radioactive material to recyclers, such
as those in the steel industry in my home state of Arkansas, who may be
unaware of the danger of the products they are receiving, and who could
in turn pass it on to consumers. I believe it is critical that we
further clarify that this was not intended, and I am hopeful that the
Majority Leader and the Minority Leader will work with me to do so.
  Mr. DASCHLE. I agree completely with the Senator from Arkansas. Since
an explicit provision to this effect was inadvertently omitted, would
the Majority Leader agree to address this issue through a technical
correction to be enacted at the earliest possible opportunity next
session?
  Mr. LOTT. Yes. I would be happy to work with the Minority Leader and
the Senator from Arkansas early next year to pass a technical
correction to this legislation to achieve this goal.
  Mr. MURKOWSKI. Mr. President, on November 1 of this year, the
Committee on Energy and Natural Resources reported S. 623, the Dakota
Water Resources Act of 1999, to the Senate. The legislation amends
existing law in an effort to address the water needs of North Dakota.
The legislation, as is true of most water related legislation in the
arid West, is not without controversy.
  Proposals to divert water from the Missouri River to meet
agricultural, municipal and industrial, and other needs in North Dakota
have a long history. The Missouri, like the Colorado and the Columbia,
serves many States and a multitude of interests, including navigation.
The Missouri is also important to the management and operation

[[Page S14988]]

of the Mississippi. Although there are sufficient resources in each of
those Basins to meet all the water related needs if the resources were
developed using on-stream and off-stream storage, that development has
not occurred and for various reasons, including what I believe are
short sighted concerns by national organizations, are not likely to
occur in the near term. That being the case, it is not surprising that
whenever any Basin State manages to corral all the competing interests
in its State and even obtains support from the Administration that
other States that could be potentially affected want to examine the
agreement and reassure themselves that this particular solution does
not come at their expense.
  The best way to accomplish that is to bring all the parties together
to allow them to review their concerns and work out whatever
arrangement will best address their needs. Our Committee did just that
several years ago as part of the legislation to settle the water claims
of the Colorado Ute Tribes. Once we had revised the agreement in a
fashion that was acceptable to the Tribes, the State of Colorado, and
the other affected water users, we then had several weeks in intense
discussions with the other Colorado River Basin States. I want to point
to that process, because it did result in the passage of legislation
that was supported by all the parties and provided for the completion
of the Dolores and Animas projects.
  I rise today to speak and offer reassurance to the North Dakota
delegation and the Missouri delegation that the Energy and Natural
Resources Committee is committed to assisting these two delegations in
working out their difficulties regarding S. 623, the Dakota Water
Resources Act of 1999.
  I appreciate the hard work and good will expressed by both
delegations over the past several weeks, but we have just run out of
time in this session of Congress to address the concerns of all
affected states. To continue these discussions, I have proposed to my
colleagues that when Congress returns next year, the Energy Committee
will hold a workshop or other forum so that the Senate can fully
identify, discuss, and attempt to resolve the issues that have
prevented this legislation from moving this year.
  With the assistance of my colleagues, I propose that the Energy
Committee staff work with their staffs during the recess and that we
convene a meeting during the first week in February to bring all the
parties together. Hopefully, if we use the time well during the recess,
we can identify who the technical people are who need to be involved so
that the delegations will be able to have a constructive meeting. I
want to note that Senator Smith, the Chairman of the Subcommittee on
Water and Power, who held the hearings earlier this year on the
legislation has indicated that he is also willing to assist in this
process.

  Mr. DORGAN. I appreciate the Chairman's cooperation and assistance on
this bill and his willingness to work with me in the Energy Committee
to bring this legislation to the floor. His commitment to convene a
workshop to resolve outstanding issues provides the basis for moving
forward with this legislation, which would meet the outstanding Federal
commitment to our state.
  As the Senator from Alaska knows, North Dakota has significant water
quality and water quantity needs that must be addressed. In many parts
of my state, well water in rural communities resembles weak coffee or
strong tea; it is unfit for drinking and other domestic uses. Several
parts of my state, including the Red River Valley, do not have access
to reliable sources of water. This bill is designed to address those
needs and help provide clean, reliable water to families and businesses
across North Dakota. When the Senate attempted to consider this
legislation in recent days, objections were registered by other
Senators who had concerns about the bill. In response, Senator Conrad
and I have worked with those Senators to address their concerns.
  I am certain that with the Chairman's assistance and that of Senator
Smith we will be able to resolve these concerns expeditiously.
  Mr. BOND. I too, extend my thanks to the Chairman of the Energy
Committee for his willingness to help us on this very complex and
difficult issue. Missouri, and other States in the Missouri River Basin
are dependent on the flow of the Missouri River. Any legislation that
affects this flow must be thoroughly vetted by the people in our state
who have the knowledge and the expertise. Since this legislation came
up at the end of the session with no time for debate on the Senate
floor, we appreciate the opportunity the Chairman is providing us to
bring together those people from our States who know this issue well. A
forum with the free exchange of ideas is an excellent way to air very
serious concerns as well as explore possible solutions that can make
this a win-win situation for everyone. Representatives of the Missouri
Basin States are currently in deep negotiations to discuss water flow.
This forum should be held in the context of those negotiations.
  Mr. ASHCROFT. I would like to associate myself with the remarks of my
colleague from Missouri. We in Missouri are just as protective of our
water as any other State in the Missouri River Basin, or for that
matter, the rest of the United States. Before either of us can agree to
any legislation that has the potential to affect our State, we must
have the opportunity for our state experts to go over this legislation
with a fine-tooth comb. I welcome the chance that the Senator from
Alaska has offered and I know our state water experts will be happy to
participate. As I have repeatedly stated, I am willing to work with my
colleagues to try to resolve any concerns in a manner that will fully
protect the interests of Missouri.

  Mr. CONRAD. I also appreciate the Senator's continued willingness to
work with us. We will continue to work in good faith to develop a bill
that can be passed by the Congress.
  I want to be absolutely clear that it is not our intent or that of
anyone in North Dakota to harm any of our neighbors. This legislation
significantly reduces the amount of irrigated acreage from that
authorized by current law and completely eliminates any irrigated
acreage from this project in the Hudson River drainage. We have
significantly increased the levels of review by both the State
Department to ensure compliance with the Boundary Water Treaty and by
EPA to ensure compliance with the Clean Water Act on any trans-basin
diversion that might occur. There is no guarantee that such a diversion
will actually occur. I also want to make it clear that we are willing
to discuss the timing, amount, and source of any diversions to ensure
that the legitimate needs of our neighboring Basin States are met. The
Chairman's offer is helpful and I hope that with a full and frank
discussion we will be able to fully resolve all concerns.
  Mr. BINGAMAN. I agree with this proposal. I want to assure my
colleagues that I will work with the Chairman to provide a forum to
allow the North Dakota and Missouri delegations, along with adjacent
states, to resolve their concerns.

                            c-band industry

  Mr. STEVENS. Mr. President, I would like to engage the Senator from
Utah, the chairman of the Judiciary Committee, in a colloquy.
  As the Senator knows, the C-Band industry is declining and the
conferees correctly exempted existing C-Band consumers from numerous
provisions in this bill at my request. It is my understanding the
conferees sought to exempt the C-Band industry from the program
exclusivity rules that we are applying in the satellite bill. Complying
with the program exclusivity rules would be technically and
economically unreasonable for the C-Band industry and would only
deprive C-Band consumers with some of their favorite programming.
  Mr. HATCH. Yes, the Senator from Alaska is correct; that was the
intent of the conferees. And, I appreciate the Senators concerns and
pledge to work with him to ensure that when the FCC promulgates these
rules, the C-Band industry is exempt and C-Band consumers are
protected.
  Mr. STEVENS. I thank the Senator.
  Mr. GRASSLEY. I would like to ask the distinguished Chairman of the
Committee on Finance a question regarding a tax provision which
Congress adopted this summer as part of the vetoed Taxpayer Refund and
Relief Act of 1999.

[[Page S14989]]

  Mr. Chairman, section 1005 of that Act would have provided that the
principles of section 482 should be used to determine whether
transactions between tax-exempt organizations and related non-exempt
entities give rise to unrelated business income tax. This provision was
needed to insure that legitimate arms length transactions between these
entities are not penalized.
  Unfortunately, it appears that this session will end without our
having another opportunity to once again enact this vitally needed
protection for the tax exempt community. As a result, I would like to
ask the distinguished Chairman whether he would agree that this
provision should be included as a high priority in the first tax
vehicle that we adopt in the second session.
  Mr. ROTH. I can assure the distinguished Senator that the enactment
of this provision, which has already been agreed to by both the House
and Senate, is a high priority for our next tax bill.
  Mr. NICKLES. I want to join my distinguished colleague from Iowa in
his remarks, and also thank our distinguished Chairman for his
commitment to enact this provision next year. Tax exempt organizations
provide critical services to our communities, and this provision will
make it far easier for them to continue to perform these important
functions.
  Mr. ROTH. I look forward to working with both the Senators from Iowa
and Oklahoma next year to provide the relief that this provision would
give to the many fine exempt organizations that are awaiting its
enactment.

                           nurse anesthetists

  Mr. HARKIN. In 1994, the Health Care Financing Administration issued
a draft regulation deferring to State law on the issue of physician
supervision of certified registered nurse anesthetists (CRNA's). This
action was followed -in 1997 by a proposed HCFA rule deferring to State
law on this issue. HCFA's rule has been subject to great scrutiny and
numerous studies. Nevertheless, HCFA has to date failed to issue its
final rule on the matter, and defer this issue to State law. Would the
distinguished Chairman of the Senate Labor, Health and Human Services,
and Education Appropriations Subcommittee agree with this assessment?
  Mr. SPECTER. I agree with my distinguished colleague, the ranking
subcommittee member. States should have the authority to regulate
CRNA's in the same manner as States regulate other health care
providers. There is a wealth of information already in existence that
supports the view that the issue of supervision should be left to the
States, just as HCFA has proposed.
  Mr. HARKIN. Therefore, we agree that HCFA's proposed rule has been
extensively researched and that HCFA should move forward expeditiously.
  Mr. GORTON. I join with my distinguished colleagues to agree that
HCFA should move forward expeditiously to resolve this issue.
  Mr. SPECTER. Absolutely, HCFA should do what it has initially
proposed several years ago and defer to State law on this issue.
  Mr. GORTON. I thank the Senators. I look forward to working with them
both to resolve this matter.
  Mr. HOLLINGS. As you know, I initially objected to the movement of
this legislation because of my concerns about the manner in which it
preempted state law. As introduced, this bill would have nullified any
ability of state legislatures to adopt the Uniform Electronic
Transactions Act, (UETA), in a manner that varied from the provisions
of the bill, or in a manner that reserved the right of states to adopt
UETA in conformance with their consumer protection laws. When the bill
was reported by the Commerce Committee, provisions were included to
provide states this flexibility. Since the reporting of the bill, the
preemption language has been amended to provide that to avoid adherence
to the federal law, a state must adopt UETA ``in the form, or any
substantially similar variation'' as provided to the states by the
National Conference on Uniform State Law.
  Do you agree that notwithstanding this change, the purpose and intent
of the preemption provisions, either pursuant to the definitions in the
bill or otherwise, have not changed? And that the legislation, in its
current form, is intended to permit states the flexibility of adopting
and enacting UETA in a manner and form that ensures its conformance
with state consumer protection laws?
  Mr. ABRAHAM. Yes, Senator Hollings, that is certainly the intent of
the legislation in its current form, but I would note that there must
be a modicum of common sense involved in this approach. It is expected
that states will pass consumer protection provisions in conjunction
with the Electronic Transactions Act. It is important, however, that
states not use the heading of ``consumer protection'' to enact changes
which are inconsistent with the spirit of UETA and which threaten to
undermine the uniformity which UETA is intended to convey. I believe
the current language realizes these important goals.
  Mr. HOLLINGS. I would like to address another change to the bill
since its reporting by the Committee. As you know, the legislation has
been amended to incorporate language providing that the bill applies to
the business of insurance. This language has the effect of permitting
the validation of insurance contracts pursuant to electronic commerce.
As you know, state insurance commissioners have expressed reservations
about this provision. There is concern that the provision could
potentially adversely affect the ability of states to maintain their
full regulatory authority over these transactions. Do you agree that
insurance companies that enter into agreements via electronic commerce
are still required to meet all other state insurance regulatory
requirements?
  Mr. ABRAHAM. I agree wholeheartedly. The purpose of this section is
to permit insurance companies to use electronic signatures in the same
manner and extent as other market participants. Under no circumstances
is the legislation intended to allow insurance companies to evade state
insurance regulations.
  Mr. BURNS. As the sponsor of the low power television provisions
contained in the Intellectual Property and Communications Omnibus
Reform Act of 1999, I would like to take this opportunity to clarify
one of the provisions. Specifically, I want to ensure that a qualified
low power television (LPTV) station in New York City serving the
Korean-American community on Channel 17 (WEBR(LP), formerly W17BM) is
not prohibited from obtaining Class A licensing as a result of Sec.
5008(f)(7)(C)(ii) of the Act.
  As drafted, Section 5008(7)(C)(ii) requires a qualified LPTV station
to demonstrate the it will not interfere with land mobile radio
services operating on Channel 16 in New York City in order to obtain
the Class A license. However, in 1995, the Commission authorized public
safety agencies to use Channel 16 in New York City on a conditional
basis pursuant to a waiver of the Commission's rules. The Order
granting that waiver specifically stated that the low power television
station on Channel 17 would not have any responsibility to protect land
mobile televisions on adjacent Channel 16. Do you agree with my
understanding of Section 5008(f)(C)(ii), namely that this section is
not intended to prevent that low power station's qualification for the
Class A license?
  Mr. HATCH. Yes, it is also my understanding that the low power
station on Channel 17 in New York City should not be precluded from the
Class A license due to Section 5008(f)(7)(ii). The interference that is
currently permitted by the Commission is intended to continue. Is this
also your understanding Senator Moynihan?
  Mr. MOYNIHAN. Yes, it is. Otherwise, the Channel 17 LPTV station in
New York City will be permanently deprived of a Class A license,
notwithstanding the fact that it exemplifies exactly the type of low
power station that should have the opportunity to achieve Class A
status. WEBR(LP) has a demonstrated strong commitment to the local
Korean community in New York, providing locally originated programming
24 hours a day, 7 days a week. This station's worthwhile service to the
community has been a benefit to the public good, and this legislation
should not thwart such service from continuing.

   the scope of compulsory licenses for television broadcast signals

  Mr. HATCH. Mr. President, the measure before us contains some
technical amendments to various provisions of the Copyright Act,
including sections

[[Page S14990]]

111 and 119, which deal with the cable and satellite compulsory
licenses, respectively. It is important to emphasize that these
technical amendments make no change whatsoever in the key definitional
provisions of these two compulsory licenses. Section 111(f) defines
``cable systems,'' and section 119(d)(6) defines ``satellite carrier.''
Neither of these definitions is changed by the measure before us.
  Mr. LEAHY. Will the Senator from Utah yield for a question?
  Mr. HATCH. I am glad to yield to my friend from Vermont.
  Mr. LEAHY. I thank the Senator with whom I worked on this important
legislation. Does he agree that these definitions should be interpreted
in exactly the same way after enactment of this legislation as they
were interpreted before its enactment?
  Mr. HATCH. The Senator is correct. In other words, if a facility
qualified as a ``cable system'' under section 111(f) prior the
enactment of this measure, it should also qualify after enactment.
Conversely, if a facility did not meet the definition of ``cable
system'' before this measure was enacted, it still would not meet that
definition after enactment, and therefore the operations of that
facility could not rely upon the cable compulsory license established
by section 111. And an entity which was not entitled to claim the
section 119 compulsory license because it did not meet the definition
of a ``satellite carrier'' prior to enactment of the measure before us
would be in exactly the same position after enactment, that is, it
could not claim the satellite compulsory license under section 119.
  Mr. LEAHY. I appreciate that response.
  Mr. HATCH. I would point out that none of this is affected by the
fact that in any earlier version of this legislation, there were
technical amendments that would have affected these definitions. Those
particular amendments do not appear in this legislation, and neither
their inclusion in the earlier version nor their omission here has any
legal significance. Would the Senate from Vermont agree with that
statement?
  Mr. LEAHY. I would, and I would hope that both the Copyright Office
and the courts would take the same approach. In that regard, I would
ask my friend from Utah, the chairman of the Judiciary Committee, for
his understanding of the current state of the law concerning the
availability of these compulsory licenses to digital online
communications services?
  Mr. HATCH. In reply to that question, I would say that certainly
under current law, Internet and similar digital online communications
services are not, and have never been, eligible to claim the cable or
satellite compulsory licenses created by sections 111 or 119 of the
Copyright Act. To my knowledge, no court, administrative agency, or
authoritative commentator has ever held or even intimated to the
contrary.
  Mr. LEAHY. Is the distinguished chairman aware of the views of the
Copyright Office on this question? After all, since the Copyright
Office administers these compulsory licenses, their views are of
particular importance.
  Mr. HATCH. The Copyright Office studied this issue exhaustively in
1997 and came to the same conclusion which I have just stated. In fact,
in undertaking the study, the Copyright Office asked the fundamental
question whether a statutory license should be created for the
Internet. The underlying assumption of the question was that there was
not, and never was, a statutory license applicable to the Internet. In
response, there was little or no comment challenging that assumption.
And I would point out that valid exercises of the Office's statutory
authority to interpret the provisions of these compulsory licensing
schemes are binding on the courts.
  Mr. LEAHY. I recall the Copyright Office's 1997 study, entitled ``A
Review of the Copyright Licensing Regimes Covering Retransmission of
Broadcast Signals,'' which concluded that no existing statutory license
authorizes retransmission of television broadcast signals via the
Internet or any online service. We held a hearing on that report. I
recently received a letter from the Register of Copyrights reaffirming
this interpretation. Indeed, in that letter, dated November 10, 1999,
the Register stated that ``the compulsory license for secondary
transmissions of television broadcast signals by cable systems does not
apply to digital online communication services,'' and specifically that
``the section 111 license does not and should not apply to Internet
transmissions.''
  Mr. HATCH. I also received such a letter from the Register. And along
the same lines, I have received a letter on this issue from one of
America's most distinguished copyright scholars, Professor Arthur
Miller of Harvard Law School. Professor Miller's interpretation of the
scope of eligibility for these compulsory licenses under current law
appears to be very similar to the Register's, and his letter also
underscores the point I was making earlier, that there is no legal
significance to the fact that this legislation omits certain technical
amendments to the definition of ``cable system'' and ``satellite
carrier'' that appeared in earlier versions of this legislation. I ask
unanimous consent that these letters be printed in the Record.
  There being no objection, the material was ordered to be printed in
the Record, as follows:
                                        The Register of Copyrights

                              of the United States of America,

                                Washington, DC, November 10, 1999.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senator Hatch: I am writing to you today concerning
     pending proposals regarding the Satellite Home Viewer Act,
     and particularly the compulsory copyright licenses addressed
     by that Act. As the director of the Copyright Office, the
     agency responsible for implementing the compulsory licenses,
     I have followed the actions of the Congress with great
     interest.
       Let me begin by thanking you for all your hard work and
     dedication on these issues, and by congratulating you on your
     success in achieving a balanced compromise. Taken as a whole,
     the Conference Report on H.R. 1554, the Intellectual Property
     and Communications Omnibus Reform Act of 1999, represents a
     clear step forward for the protection of intellectual
     property. I particularly appreciate your support for
     provisions that improve the ability of the Copyright Office
     to administer its duties and protect copyrights and related
     rights.
       I was greatly concerned when I heard the statements of
     Members on the floor of the House suggesting that in the
     final few legislative days of this session, subsection
     1011(c) of the Conference Report should be amended or
     removed. Section 1011(c) makes unmistakable what is already
     true, that the compulsory license for secondary transmissions
     of television broadcast signals by cable systems does not
     apply to digital on-line communication services.
       It is my understanding that some services that wish to
     retransmit television programming over the Internet have
     asserted that they are entitled to do so pursuant to the
     compulsory license of section 111 of Title 17. I find this
     assertion to be without merit. The section 111 license,
     created 23 years ago in the Copyright Act of 1976, was
     tailored to a heavily-regulated industry subject to
     requirements such as must-carry, programming exclusivity and
     signal quota rules--issues that have also arisen in the
     context of the satellite compulsory license. Congress has
     properly concluded that the Internet should be largely free
     of regulation, but the lack of such regulation makes the
     Internet a poor candidate for a compulsory license that
     depends so heavily on such restrictions. I believe that the
     section 111 license does not and should not apply to Internet
     transmissions.
       I also question the desirability of permitting any existing
     or future compulsory license for Internet retransmission of
     primary television broadcast signals. In my comprehensive
     August 1, 1997 report to Congress, A Review of the Copyright
     Licensing Regimes Covering Retransmission of broadcast
     Signals, Internet transmissions were addressed in Chapter
     VIII, entitled ``Should the Cable Compulsory License Be
     Extended to the Internet?'' the report concluded that it was
     inappropriate to ``besto[w] the benefits of compulsory
     licensing on an industry so vastly different from the other
     retransmission industries now eligible for compulsory
     licensing under the Copyright Act.''
       The report observed that ``Copyright owners, broadcasters,
     and cable interests alike strongly oppose . . . arguments for
     the Internet retransmitters' eligibility for any compulsory
     license. These commenters uniformly decry that the
     instantaneous worldwide dissemination of broadcast signals
     via Internet poses major issues regarding the United States
     and international licensing of the signals, and that it would
     be premature fur Congress to legislate a copyright compulsory
     license to benefit Internet retransmitters at this time.''
     the Copyright Office believes that there would be serious
     international implications if the United States were to
     permit statutory licensing of Internet transmissions of
     television broadcasts.
       Therefore I urge that no action be taken to remove or alter
     section 1011(c) of the Conference Report. At this point, to
     do so could be construed as a statement that digital on-line
     communication services are eligible for

[[Page S14991]]

     the section 111 license. Such a conclusion would be
     reinforced in light of section 1011(a)(1), which replaces the
     term ``cable system'' in section 111 of Title 17 with the
     term ``terrestrial system.'' In the absence of section
     1011(c), section 1011(a)(1) might incorrectly be construed as
     implying a broadening of the section 111 license to include
     Internet transmissions.
       The Internet is unlike any other medium of communication
     the world has ever known. The application of copyright law to
     that medium is of utmost importance, and I know that you have
     personally invested a great deal of time and energy in recent
     years to assure that a balance of interests is reached.
     Permitting Internet retransmission of television broadcasts
     pursuant to the section 111 compulsory license would pose a
     serious threat to that balance.
       Please feel free to contact me if I can be of any
     assistance in this matter. Thank you.
            Sincerely,
                                                  Marybeth Peters,
     Register of Copyrights.
                                  ____

                                           Harvard Law School,

                                 Cambridge, MA, November 15, 1999.
     Hon. Orrin G. Hatch,
     Chairman, Judiciary Committee,
     U.S. Senate, Washington, DC.
     Hon. Henry J. Hyde,
     Chairman, Judiciary Committee,
     House of Representatives, Washington, DC.
       Dear Chairmen Hatch and Hyde: I am writing to you to
     express my views on a proposal to amend the cable and
     satellite compulsory licenses in Sections 111 and 119 of the
     Copyright Act. I have taught Copyright Law at Harvard Law
     School, as well as Michigan and Minnesota, for over thirty-
     five years and have written extensively and lectured
     throughout the world on this area of the law. In addition, I
     was very active in the legislative process that led to the
     Copyright Act of 1976 and was appointed by President Ford and
     served as a Commissioner on the Commission for New
     Technological Uses of Copyright Works (CONTU).
       The Conference Report on H.R. 1554, the Intellectual
     Property and Communications Omnibus Reform Act of 1999,
     included amendments to Sections 111 and 119 to state
     explicitly that digital online communication services do not
     fall within the definitions of ``satellite carrier'' and
     ``terrestrial system'' (currently ``cable system'') and,
     therefore, are not eligible for either compulsory license. I
     understand that Congress is currently considering deleting
     these amendments or enacting legislation that would not
     include them. I believe that the amendments were wholly
     unnecessary and that the deletion or exclusion of them will
     have no effect on the law, which is absolutely clear: digital
     online communication services are not entitled to the
     statutory license under either Section 111 or Section 119 of
     the Copyright Act.
       A compulsory license is an extraordinary departure from the
     basic principles underlying copyright law and a substantial
     and significant encroachment on a copyright owner's rights.
     Therefore, any ambiguity in the applicability of a compulsory
     license should be resolved against those seeking to take
     advantage of what was intended to be a very narrow exception
     to the copyright proprietor's exclusive rights. As the
     Fifth Circuit Court of Appeals has noted in a case
     involving another compulsory license: the compulsory
     license provision is a limited exception to the copyright
     holder's exclusive right to decide who shall make use of
     his (work). As such, it must be construed narrowly, lest
     the exception destroy, rather than prove, the rule.
       Fame Publishing Co. v. Alabama Custom Tape, Inc., 507 F.2d
     667, 670 (5th Cir. 1975).
       In this situation, however, there is absolutely no
     ambiguity as to the correct construction of the cable and
     satellite compulsory licenses. Neither the language of the
     Copyright Act, nor any statement of Congressional intent at
     the time of their enactment, nor any judicial interpretation
     of Section 111 or Section 119 in any way suggests that these
     compulsory licenses could apply to digital online
     communication services. And, as far as I know, the
     representatives of these services have not offered any
     substantive argument to the contrary--with good reason. No
     reasonable person--or court--could interpret these statutory
     licenses to embrace these services.
       And if there was any doubt left in anyone's mind, the
     federal agency charged with interpreting and implementing
     these statutory licenses, the United States Copyright Office,
     has addressed this issue directly: retransmitting broadcast
     signals by way of the Internet is clearly outside the scope
     of the current compulsory licenses. In fact, the Copyright
     Office recommended in 1997 that Congress not even create a
     new compulsory license, concluding that it would be
     ``inappropriate for Congress to grant Internet retransmitters
     the benefits of compulsory licensing.'' See U.S. Copyright
     Office, A Review of the Copyright Licensing Regimes Covering
     Retransmission of Broadcast Signals (August 1, 1997), at 99
     and Executive Summary at xiii.
       My work in the field of copyright over the past decades,
     especially my extensive activities in connection with the
     development of the legislation that became the Copyright Act
     of 1976, leads me to agree with the Office's conclusions that
     it would be far too premature to extend a compulsory license
     to the Internet. That conclusion seems sound given the
     enormous differences between the Internet and the industries
     embraced by the existing licensing provisions and the need to
     engage in extensive research and analysis regarding the
     potentially enormous implications of digital communications.
     We simply do not know enough to legislate effectively at this
     point. Doing so at this time--especially without hearing from
     numerous affected interests--would create a risk of upsetting
     the delicate balance between the rights of copyright
     proprietors and the interests of others.
       Thus, in any judicial action that might materialize by or
     against the providers of digital online communication
     services, the court would be bound by the Copyright Office's
     interpretation of the statutory licenses. See Cablevision
     Systems Development Co. v. Motion Picture Association of
     America, Inc., 836 F.2d 599, 609-610 (D.C. Cir. 1988)
     (deferring to the Copyright Office's interpretation of
     Section 111, noting Congress' grant of statutory authority to
     the Copyright Office to interpret the Copyrights Act, and the
     Supreme Court's indication that it also would defer to the
     Copyright Office's interpretation of the Copyright Act),
     Satellite Broadcasting and Communications Assoc v. Oman, 17
     F.3d 344, 345 (11th Cir. 1994) (holding that valid exercises
     of the Copyright Office's statutory authority to interpret
     the provisions of the compulsory licensing scheme are binding
     on the court).
       In summary, based on the unmistakable fact that digital
     online communication services are ineligible for the cable
     and satellite compulsory licenses and the identical,
     unequivocal interpretation by the Copyright Office,
     amendments to the existing statute reiterating this legal
     truth are unnecessary. Consequently, the status quo with
     respect to who is eligible for the statutory licenses will
     remain undisturbed whether Congress deletes these amendments
     from the pending legislation or excludes them from subsequent
     legislation.
           Respectfully yours,
                                                 Arthur R. Miller,
                                   Bruce Bromley Professor of Law.

  Mr. LEAHY. I thank my colleague from Utah for his responses. I
believe this colloquy should help to clarify that this legislation
leaves these crucial definitions unchanged, and also to clarify what is
the current state of the law, which this legislation does not disturb.
  Mr. HATCH. I think the Senator from Vermont. And I would clarify one
other point relating to a minor modification we made to the definition
of ``unserved household'' in the distant signal satellite statutory
license found in section 119 of Title 17 of the United States Code. The
conferees decided to add the word ``stationary'' to the phrase
``conventional outdoor rooftop receiving antenna'' in Section
119(d)(10) of the Copyright Act. As the Chairman of the Conference
Committee and of the Senate Judiciary Committee, which has jurisdiction
over copyright matters, I should make clear that this change should not
require any alteration in the methods used by the courts to enforce the
``unserved household'' limitation of Section 119. The new language
states only that the antenna is to be ``stationary''; it does not state
that the antenna is to be misoriented (i.e., pointed away from the
station in question). Any interpretation that assumed misorientation
would be inconsistent with the basic premise of the definition of
``unserved household,'' which defines that term in relation to an
individual TV station rather than to all network affiliates in a
market--and speaks to whether a household ``cannot'' receive a Grade B
intensity signal from a particular station. If a household can receive
a signal of Grade B intensity with a properly oriented stationary
conventional antenna, it is not ``unserved'' within the meaning of
Section 119. In addition, if station towers are located in different
directions, conventional over-the-air antennas can be designed so as to
point towards the different towers without requiring the antenna to be
moved. And reading the definition of ``unserved household'' to assume
misoriented antennas would mean that the ``unserved household''
limitation had no fixed meaning, since there are countless different
ways in which an antenna can be misoriented, but only one way to be
correctly oriented, as the Commission's rules make clear.
  With that clarification, I yield the floor.

                       patent reform legislation

  Mrs. FEINSTEIN. I want to thank the Chairman and the Ranking Member
for their tireless efforts on patent reform. I strongly support passage
of S. 1798, which is included in this omnibus measure, because so many
companies in California and across the nation depend on a strong and
well-functioning patent system.

[[Page S14992]]

  While S. 1798 will provide important protection for inventors and
innovators and help reduce needless patent litigation, I do have some
concerns regarding the compromise reached regarding the reexamination
procedure set forth in Title VI. As I understand it, this section will
reduce the burden of patent cases in our federal courts. However, we
need to be sure that the procedure fully and fairly protects the rights
of all parties, and some concerns about this process have been brought
to my attention over the last few weeks.
  Out of deference to the Chairman and the Ranking Member of the
Judiciary Committee, and being sensitive to the compromise that the
House reached, I did not seek amendments to this title of the bill.
Furthermore, I feel strongly that the bill should move forward without
further delay, so I support its final passage. This does not mean,
however, that I believe we should cease to be concerned about how the
new system will function. Accordingly, I would like to receive
assurances from Chairman Hatch that we will keep a close eye on how
well this new reexamination system works. In particular, I would like
to request that the Committee obtain an interim report from the Patent
and Trademark Office under the authority specified in section 606 of S.
1798 not later than 18 months after this bill becomes effective. I
would also invite Chairman Hatch to hold a hearing to consider this
information, and to obtain views from people who both supported and
opposed this compromise system.
  Mr. HATCH. I thank the Senator from California for her remarks and
appreciate her support for this important legislation. I agree that
Congress must closely monitor the effectiveness and fairness of the new
reexamination procedure. I also believe it would be very useful to
obtain the interim report she mentioned in a timely fashion and look
forward to continuing to work with her on this issue.

                       cpb list sharing provision

  Mr. McCONNELL. Mr. Chairman, I would like to engage with you in a
colloquy concerning the Corporation for Public Broadcasting (CPB) list-
sharing prohibition in the Intellectual Property and Communications
Reform Act.
  Mr. HATCH. I would be happy to.
  Mr. McCONNELL. The bill amends Section 396(h) of the Communications
Act to prevent public broadcasting entities that receive federal funds
from renting or exchanging lists with political candidates, parties or
committees.
  Mr. Chairman, am I correct in reading this language as providing that
the list-sharing restriction only applies to the CPB and not any other
organizations?
  Mr. HATCH. That is correct.
  Mr. McCONNELL. Mr. Chairman, in my view, CPB is a unique entity and
its unique nature may be used by supporters of this provision to
justify the restrictions on list sharing. CPB is unique because it is
created, controlled and funded by the government with a legal
obligation to be balanced and objective.
  Many non-profit organizations rely upon exchanges of lists with
political organizations as a way to attract new members to their
organizations to support their charitable works. A number of mainstream
non-profit organizations, such as the Disabled Veterans of America,
have expressed concern that this CPB provision may set a precedent for
future restrictions on list sharing by other non-profit organizations.
It is my understanding, however, that this list sharing restriction is
not a precedent for similar restrictions on other non-profits that are
not: (1) created by the federal government; (2) controlled by the
federal government; (3) funded by the federal government; and (4)
legally required to be balanced and objective. Thus, I do not think
this provision relating to CPB is a precedent for imposing such
restrictions on other non-profits. Does the Chairman agree with my
assessment?
  Mr. HATCH. Yes, the Senator's assessment is correct. The conferees
included the CPB list-sharing language in the bill because of concerns
related to CPB's unique status. This provision should in no way be
interpreted as precedent for restrictions on list sharing by other non-
profit organizations that may receive federal funds.
  Mr. MURKOWSKI. Mr. President, I would like to ask a question of the
senior Senator from Alaska, Mr. Stevens, in his capacity as chair of
the full Committee on Appropriations, and the senior senator from
Washington, Mr. Gorton, who is chair of the Interior Subcommittee,
regarding clarification of a vital issue facing the State of Alaska.
  The Year 2000 will be the 20th anniversary of the passage of the
Alaska National Interest Lands Conservation Act of 1980. ANILCA is the
most far-reaching piece of legislation ever passed--in the history of
the United States--in terms of creating massive set-asides for
conservation purposes.
  Last year, in the appropriations conference report, Congress passed
specific language requiring that the federal managers chosen from
around the United States to oversee the implementation of ANILCA's
Conservation Units receive adequate, in-depth training on its many
components and ramifications. The language read as follows:

       The Committees agree that the Secretary of the Interior and
     the Secretary of Agriculture should provide comprehensive
     training to land managers on the history and provisions of
     statutes affecting land and natural resource management in
     Alaska, including but not limited to Revised Statute 2477,
     the Act of May 17, 1906 (34 Stat. 197), the Alaska Statehood
     Act, the Mineral Leasing Act of 1920, the White Act, the
     Alaska National Interest Lands Conservation Act, the Alaska
     Native Claims Settlement Act, and the Magnuson-Stevens
     Fishery Conservation and Management Act.

  When this language passed it was our hope that this training would
also be provided to those employees who manage programs in Alaska and
to employees whose jobs entail knowledge of one or more of the laws
described above.
  I want to further clarify that it is our hope that the Secretary of
the Interior and the Secretary of Agriculture would enter into an
agreement with, and provide funding to, Alaska Pacific University, in
conjunction with University of Washington School of Law and
Northwestern School of Law, Lewis and Clark College, to develop and
conduct training.
  I feel training in these laws very specific to Alaska is badly
needed, as most federal employees arriving in the state know little
about Arctic and sub-Arctic environments. Many people coming to Alaska
imagine incorrectly that the statute governing Alaska's federal Parks
and Refuges is identical to those they have worked with in the South
49. This, of course, is  far from the truth.

  Because of the dimensions of ANILCA's reclassification of Alaska's
lands, encompassing more than 104 million acres, an area larger that
the State of California, the Congress rightfully tailored the law with
a series of Alaska-specific provisions, unfamiliar to other states. The
purpose of these provisions was clearly intended to ensure that these
land designations protect the natural glories of Alaska's most
beautiful regions but neither destroy the way of life of Alaska's
Native people nor violate the promises made to all Alaskans in the
Compact made between our people and the U.S. Government in the Alaska
Statehood Bill.
  During the August recess, I held hearings in Alaska to discover how
the federal managers of the federal Conservation Units in Alaska are
doing in carrying out and living by the provisions required in the law.
Sadly, I must report a long litany of abuses being suffered by Alaskans
as individuals, as outdoor sports participants, as business owners, and
as a community due to ignorance by federal managers. Much of this
ignorance is through honest misunderstanding of the Statute. I,
therefore, ask my honorable colleagues to respond to my query about the
status of the language passed last year that would fill this void.
  I also want to call to your attention that Alaska Pacific
University's Institute of the North has followed up on that language,
and is inaugurating a semester course this coming semester addressing
all of these issues on the 20th anniversary of ANILCA. All
stakeholders--from conservationists to Native peoples to resource
harvesters--will be part of the discussions and learning process. The
University is working with Lewis and Clark's Northwestern School of Law
to develop the needed legal research in this area. And while the
University was invited to participate at its own expense in the one-day
ANILCA training held here in Washington this spring, I believe the
Interior Department and the Department of Agriculture have done no more
than that to fulfill Congressional intent.

[[Page S14993]]

  I believe a good curriculum can be developed at a cost of some
$300,000, a small investment for an issue this important. The existing
course can be re-formatted in a thorough but intensive week-long
seminar and delivered specifically for the federal employees who
constantly are rotated into Alaska to serve on the front line of this
pioneering experiment in conservation and sustainable development.
  Mr. STEVENS. Mr. President, I agree with my colleague, the Chairman
of the Committee on Energy and Natural Resources. The Senator from
Alaska and the Senator from Washington will remember that I asked that
the language in the conference report be inserted last year. I, too, am
concerned that no action has taken place. It is my intent, as chairman
of this committee, that the training called for in last year's
conference report take place, and that the program led by Alaska
Pacific University, in conjunction with two of the closest law schools
in Washington and Oregon, take place. There are sufficient funds in the
training budgets of the several Interior agencies to make this happen,
and I believe it should happen in conjunction with the outside
resources who are developing this curriculum. While I participated in
the program held in Washington, DC, on this issue, I would hope that a
greater effort is put forth in the future.
  Mr. GORTON. Mr. President, I concur with the Alaska Senator's intent,
and I believe the Interior and Agriculture budgets are sufficient to
allow the Department to contract with these schools to provide the
training we called for. Each of these Alaska laws referred to in the
report language last year is important, is unique, and needs
appropriate training for our managers to ensure that Congressional
intent is followed.
  Mr. MURKOWSKI. Thank you, Mr. President, and through the chair, thank
you to my colleagues. We have considered making this a legal
requirement in an amendment to law, but I believe this year--in the
20th anniversary of ANILCA--we should see that the training gets
started. We will be following it closely in the year to come, and we
appreciate the comments provided by the committee chairman and the
manager of the bill.

            blm closure of twin falls airtanker reload base

  Mr. CRAIG. Mr. President, I would like to discuss with the Chairman
of the Interior Appropriations Subcommittee a problem that has come up
in Twin Falls in my State of Idaho. In July 1998, the Bureau of Land
Management's state office closed the tanker resupply base at the Twin
Falls airport, after an internal inspection indicated unsafe
conditions. At the time of that closing, the BLM Shoshone and state BLM
offices expressed their interest in re-opening the facility as soon as
possible. Over the following months, discussions between BLM and local
officials included mention of re-opening as early as during fiscal year
2000.
  Then, approval and timing of the project appeared to enter a twilight
zone somewhere between south Idaho and Washington, DC. In February of
this year, a project data sheet was produced showing a request for FY
2001. Local officials in Twin Falls were told that this delay was the
result of no prioritization decision being made at the national level,
and that FY 2001 was going to be the earliest year for which the
request could be made. Subsequently, local officials were told both,
that no final decisions had been made, and that the project had slipped
to a lower priority and would be delayed at least until FY 2002.
  Prompt replacement of this airtanker reload base is important for
several reasons. It is the only such base within 100 miles of most of
the Idaho-Nevada border and is therefore situated to provide the
fastest possible response in the area during the fire season. Because
of the location of the airport and its clear departure paths, it offers
fast, safe turnaround times. Many customers in addition to BLM need a
base in this area. If the base is not re-opened soon, it will hurt
airport operations and hurt the local economy.
  I am not suggesting to the Chairman that anyone is acting
inappropriately. But I do think it is important for us to look into the
matter, find out more about the decisionmaking process and what it is
producing, consider what the fairest, most prompt outcome should be,
and engage with BLM to arrive at that solution.
  Mr. GORTON. I appreciate the gentleman bringing this to the
Subcommittee's attention. I certainly can understand the Senator's
concern with the closure of this base and his constituents' frustration
with seemingly inexplicable delays in making progress toward a re-
opening. I look forward to working with the Senator and with BLM, to
look into this matter and arrive at the best, earliest possible
resolution.

                      desulfurization (bds) grant

  Mr. STEVENS. The FY 2000 Interior Appropriations conference report
provides a grant to a refinery in Alaska for a pilot project to
demonstrate the effectiveness of diesel biocatalytic desulfurization
technology, or BDS for short. This technology holds great promise for
helping our petroleum refining industry reduce the sulfur content of
diesel fuel in order to meet new EPA regulations. Would the Chairman of
the Subcommittee clarify a couple of points about this grant?
  Mr. GORTON. Certainly.
  Mr. STEVENS. It is my understanding that the Chairman intends for
this grant to be made available only to a refinery owned by a small
business in Alaska. Is that correct?
  Mr. GORTON. The Senator is correct. I understand that the BDS
technology is ideally suited to small refineries. Therefore, I believe
that the grant should be made available only to a refinery that meets
the Small Business Administration's definition of small; that is, less
than 75,000 barrels per day capacity of petroleum-based inputs and less
than 1,500 employees.
  Mr. STEVENS. Why is the BDS technology better suited to small
refineries?
  Mr. GORTON. It has to do with the nature of the technology itself. As
the Senator may know, diesel engine manufacturers currently are in the
process of developing new technologies with the potential to radically
reduce harmful diesel emissions, but which will require fuel with very
low sulfur content in order to work effectively. To reduce the
environmental impact of diesel emissions, the EPA is considering new
regulations which would require significant reductions in the sulfur
content of diesel fuel.
  Large-scale, fully-integrated refineries are capable of cost-
effectively producing low-sulfur diesel fuel using the traditional
technology for removing sulfur from gasoline and diesel fuel, called
hydrodesulfurization, or HDS. However, small refineries do not have
that capability. HDS is a highly complex, energy intensive, and
expensive process. As a result, it is not well-suited to small
refineries, which generally are much more simply configured and produce
a smaller variety and quantity of refined products than large
refineries, and therefore cannot justify the expense of building and
operating HDS units.
  BDS, on the other hand, is a simple, efficient, and low cost
technology which uses much less energy than the traditional HDS
technology. A BDS unit is likely to cost 50% less to construct and
operate than a traditional HDS unit. For these reasons, BDS technology
is particularly well-suited to small refineries and holds great promise
as a cost-effective alternative for producing low-sulfur diesel fuel.
Because small refineries will be the principal users of the BDS
technology if it works like we hope it will, it makes sense to first
try it out at a small refinery. Therefore, we believe that the grant
for a demonstration project should be directed to a small refinery.
  Mr. STEVENS. Thank you.
  Mr. CRAIG. Senator Gorton, I have in my hand a copy of an August 27
order from Judge William Dwyer instructing the parties in a lawsuit
over timber sales in the Pacific Northwest to negotiate a settlement
regarding a requirement to survey for 77 species of mollusks, lichens,
bryophytes, salamanders and slugs prior to conducting ground disturbing
activities. This lawsuit has held up over one quarter of a billion
board feet of federal timber sales.
  Let me read a single sentence from the Judge's order:

       Negotiations should now be resumed, should include the
     defendant-interveners, and should explore short-term
     solutions that would reduce the impact of injunctive relief

[[Page S14994]]

     on logging contractors and their employees while complying
     with the Northwest Forest Plan.

  I have been advised by media accounts that the settlement announced,
with great fanfare, by Under Secretary Jim Lyons yesterday did not
involve the ``defendant-interveners.'' Indeed, in his public comments
Mr. Lyons indicates that, the defendant-interveners were excluded from
discussions. Defendant-interveners have been unsuccessful in even
securing basic information that the government currently has available
about affected sales. Furthermore, the settlement did not ``reduce the
impact of injunctive relief on logging contractors and their
employees'' at all. Instead, it actually expanded the injunction by
adding four more sales to the dozens that are already either enjoined
by the Court, or not awarded by a decision of the Administration. Mr.
Lyons gave the environmental plaintiffs more than what Judge Dwyer
ordered in his original decision simply to settle the case and claim
that his Northwest Forest Plan was ``back on track.'' This seems more
like a capitulation, rather than a settlement.
  Mr. GORTON. The Senator is correct. Additionally, I also understand
that the day before this ``deal'' was announced, Judge Dwyer held a
status conference with all the parties, including the defendant-
interveners. The government attorneys told him that no agreement had
been reached, and that the next mediation session was to occur on
December 2. The Judge then set December 3 for the next status
conference. Apparently, this Administration has as much trouble
speaking with any probity to the Judicial Branch as they have recently
with the Congress. It appears that the Judge's admonition to include
the ``defendant-interveners'' in the discussions was ignored.
  Mr. CRAIG. Senator, I also understand that Section 334 of the
Interior Appropriations Bill was dropped, in part, because of concerns
by the Administration that the measure would disrupt the negotiations
that were underway, and could prevent the release of any of the
enjoined timber sales. But, the settlement announced yesterday will not
release any of the enjoined sales.
  To add insult to injury, Mr. Lyons is nevertheless claiming that the
settlement he announced yesterday will, indeed, allow the sales to go
forward. I understand that nothing could be further from the truth.
These sales are still on hold while the Forest Service tries to figure
out how to search for slugs, slime and salamanders. Most importantly,
the Administration is not willing to commit to a time-frame to complete
these surveys. I believe this is a wrong that must be corrected.
  Mr. GORTON. I concur with the observations of my colleague from
Idaho. The sales in question have not been made available to operate.
They are still subject to the impossible survey requirements that
caused the injunction to begin with. That is why I would urge the
Administration in the strongest terms to return to the negotiating
table with the defendant-interveners and address their concerns.
  Specifically, there should be an agreed-upon time-frame and a date
certain for the completion of the agreed-upon survey requirements.
Failure to conduct a good-faith effort to complete the settlement
process in the fashion ordered by the Judge should be grounds for
withholding final approval of the agreement.
  Mr. CRAIG. I agree. It seems to me that, based upon the
Administration's performance, Congress should reinstate Section 334 or
some similar measure in the FY2000 Supplemental Appropriations bill and
direct the Administration to release these sales immediately. The
Administration's present course will keep this conflict alive
interminably, and expose the taxpayers to the liability of damage
claims from contract holders. Moreover, this consistent record of
deceit and chicanery from the Administration must stop. We made a good
faith effort to respond to the Administration's concerns over Section
334 based, in part, on its promise to negotiate a fair settlement of
this legal dispute. Not only did they not do that, they now have the
audacity to claim publicly that they did, and spin their announcement
in the most shameful of ways. If truth is the coin of the realm, Mr.
Lyons and his cohorts are hopelessly bankrupt.
  Mr. SMITH of New Hampshire. I would like to ask the Chairman of the
Interior Appropriations subcommittee to clarify some matters concerning
the President's American Heritage Rivers initiative that concerns the
Interior and related agencies portion of the appropriations act.
Senator Gorton, is it your understanding that there is nothing in this
bill that authorizes the American Heritage Rivers initiative?
  Mr. GORTON. Yes, I would like to clarify that matter. There is no
language whatsoever in the Interior portion that provides an
authorization for the American Heritage Rivers Initiative.
  Mr. SMITH of New Hampshire. Thank you Mr. Chairman. In addition, is
it true that there is no separate appropriation for the American
Heritage Rivers initiative in the Interior portion of the bill?
  Mr. GORTON. Yes, it is true that there is no appropriation for the
American Heritage Rivers initiative in the appropriations act. In fact,
the bill includes in Title three a provision that clearly prohibits the
transfer of any funds from this act to the Council on Environmental
Quality (CEQ) for purposes related to the American Heritage Rivers
initiative.
  Mr. SMITH of New Hampshire. Thank you Mr. Chairman. In addition, can
you comment on some guidance that you have given the Forest Service in
your statement to the managers?
  Mr. GORTON. Yes, certainly. The statement of the managers provides a
limitation on spending for the Forest Service for purposes related to
designated American Heritage Rivers. This is not an appropriation, but
it provides a maximum that may be spent from funds appropriated for
other purposes on any efforts that are consistent with existing
authorized programs. I would also like to point out that the Interior
subcommittee has questioned this initiative previously. The Committee
reports accompanying the FY 1999 bill clearly stated that efforts on
this initiative by agencies covered by the Interior bill must complete
with, or be normal part of, the authorized program of work of the
agency.

                intellectual property and communications

  Mr. SCHUMER. Mr. President, I rise today in support of the revised
``Intellectual Property and Communications Omnibus Reform Act of 1999''
(H.R. 1554). As a Member of the Judiciary Committee, I am particularly
pleased that this legislation includes as Title IV, the ``American
Inventors Protection Act of 1999.'' This important patent reform
measure includes a series of initiatives intended to protect rights of
inventors, enhance patent protections and reduce patent litigation.
  Perhaps most importantly, subtitle C of title IV contains the so-
called ``First Inventor Defense.'' This defense provides a first
inventor (or ``prior user'') with a defense in patent infringement
lawsuits, whenever an inventor of a business method (i.e., a practice
process or system) uses the invention but does not patent it.
Currently, patent law does not provide original inventors with any
protections when a subsequent user, who patents the method at a later
date, files a lawsuit for infringement against the real creator of the
invention.
  The first inventor defense will provide the financial services
industry with important, needed protections in the face of the
uncertainty presented by the Federal Circuit's decision in the State
Street case. State Street Bank and Trust Company v. Signature Financial
Group, Inc. 149 F.3d 1368 (Fed. Cir. 1998). In State Street, the Court
did away with the so-called ``business methods'' exception to statutory
patentable subject matter. Consequently, this decision has raised
questions about what types of business methods may now be eligible for
patent protection. In the financial services sector, this has prompted
serious legal and practical concerns. It has created doubt regarding
whether or not particular business methods used by this industry--
including processes, practices, and systems--might now suddenly become
subject to new claims under the patent law. In terms of every day
business practice, these types of activities were considered to be
protected as trade secrets and were not viewed as patentable material.
  Mr. President, the first inventor defense strikes a fair balance
between patent law and trade secret law. Specifically, this provision
creates a defense for inventors who (1) acting in

[[Page S14995]]

good faith have reduced the subject matter to practice in the United
States at least one year prior to the patent filing date (``effective
filing date'') of another (typically later) inventor; and (2)
commercially used the subject matter in the United States before the
filing date of the patent. Commercial use does not require that the
particular invention be made known to the public or be used in the
public marketplace--it includes wholly internal commercial uses as
well.
  As used in this legislation, the term ``method'' is intended to be
construed broadly. The term ``method'' is defined as meaning ``a method
of doing or conducting business.'' thus, ``method'' includes any
internal method of doing business, a method used in the course of doing
or conducting business, or a method for conducting business in the
public marketplace. It includes a practice, process, activity, or
system that is used in the design, formulation, testing, or manufacture
of any product or service. The defense will be applicable against
method claims, as well as the claims involving machines or articles the
manufacturer used to practice such methods (i.e., apparatus claims).
New technologies are being developed every day, which include
technology that employs both methods of doing business and physical
apparatus designed to carry out a method of doing business. The first
inventor defense is intended to protect both method claims and
apparatus claims.
  When viewed specifically from the standpoint of the financial
services industry, the term ``method'' includes financial instruments,
financial products, financial transactions, the ordering of financial
information, and any system or process that transmits or transforms
information with respect to investments or other types of financial
transactions. In this context, it is important to point out the
beneficial effects that such methods have brought to our society. These
include the encouragement of home ownership, the broadened availability
of capital for small businesses, and the development of a variety of
pension and investment opportunities for millions of Americans.
  As the joint explanatory statement of the Conference Committee on
H.R. 1554 notes, the provision ``focuses on methods for doing and
conducting business, including methods used in connection with internal
commercial operations as well as those used in connection with the sale
or transfer of useful end results--whether in the form of physical
products, or in the form of services, or in the form of some other
useful results; for example, results produced through the manipulation
of data or other inputs to produce a useful result.'' H. Rept. 106-464
p. 122.
  The language of the provision states that the defense is not
available if the person has actually abandoned commercial use of the
subject matter. As used in the legislation, abandonment refers to the
cessation of use with no intent to resume. Intervals of non-use between
such periodic or cyclical activities such as seasonable factors or
reasonable intervals between contracts, however, should not be
considered to be abandonment.
  As noted earlier, Mr. President, in the wake of State Street,
thousands of methods and processes that have been and are used
internally are now subject to the possibility of being claimed as
patented inventions. Previously, the businesses that developed and used
such methods and processes thought that secrecy was the only protection
available. As the conference report on H.R. 1554 states: ``(U)nder
established law, any of these inventions which have been in commercial
use--public or secret--for more than one year cannot now be the subject
of a valid U.S. patent.'' H. Rept. 106-464, p. 122.
  Mr. President, patent law should encourage innovation, not create
barriers to the development of innovative financial products, credit
vehicles, and e-commerce generally. The patent law was never intended
to prevent people from doing what they are already doing. While I am
very pleased that the first inventors defense is included in H.R. 1554,
it should be viewed as just the first step in defining the appropriate
limits and boundaries of the State Street decision. This legal defense
will provide important protections for companies against unfair and
unjustified patent infringement actions. But, at the same time, I
believe that it is time for Congress to take a closer look at the
potentially broad and, perhaps, adverse consequences of the State
Street decision. I would hope that beginning early next year that the
Judiciary Committee will hold hearings on the State Street issue, so
that Senators can carefully evaluate its economic and competitive
consequences.
  Mr. TORRICELLI. My college is correct. The State Street decision may
have unintended consequences for the financial services community. By
explicitly holding that business methods are patentable, financial
service companies are finding that the techniques and ideas, that were
in wide use, are being patented by others.
  The Prior Inventor Defense of H.R. 1554 is an important step toward
protecting the financial services industry. By protecting early
developers and users of a business method, the defense allows U.S.
companies to commit resources to the commercialization of their
inventions with confidence that a subsequent patent holder will prevail
in a patent-infringement suit. Without this defense, financial services
companies face unfair patent-infringement suits over the use of
techniques and ideas (methods) they developed and have used for years.
  While I support the Prior Inventor Defense, as a member of the
Judiciary Committee, I hope that we will revisit this issue next year.
More must be done to address the boundaries of the State Street
decision with the realities of the constantly changing and developing
financial services industry.
  I look forward to working with Senator Schumer and my colleagues on
the committee on this important issue.
  Mr. JEFFORDS. Mr. President, I rise today to support an extremely
important provision in the budget agreement. A provision which will
mean the difference for many dairy farmers around the country on
whether they will stay in business or not.
  The dairy compromise that is included in the budget agreement will
help bring stability to the price dairy farmers around the country
receive for their product--as well as protect consumers and processors
by helping to maintain a fresh local supply of milk.
  The agreement extends the very successful Northeast Dairy Compact and
overturns Secretary Glickman's flawed pricing rule, saving dairy
farmers around the country millions of dollars in lost income.
  Take one look at this chart and you will know why the dairy
compromise in the budget agreement is so important to the survival of
this country's dairy farmers.
  Why, because every farmer in every state in the red would lose money
out of their pockets if Secretary Glickman's flawed pricing rule known
as option 1-B were to be put in place. The dairy compromise corrects
this and creates a pricing formula that is fair for both farmers and
consumers.
  For three years the farmers in New England have had a program that
works. It's called the Northeast Dairy Compact. Because the Dairy
Compact pilot program has worked so well--no less than twenty-five
states have approved Compacts and are now asking Congress for approval.
  Today, I am so pleased two of the people responsible for creating the
idea of the dairy compact are here in Washington today. Bobby Starr and
Dan Smith are two Vermonters that over 10 years ago put their heads
together in an effort to help protect the Vermont way of life.
  It was my hope and the hope of the majority of the Senate that we
could have expanded the compacts into other regions so other states
could benefit from having a means of stabilizing prices for both their
farmers and consumers.
  Unfortunately, this time we were not able to expand the dairy compact
into other regions. However, a great deal of progress has been made as
more and more states are seeing the benefits of protecting their dairy
farmers and rural economies through the use of Interstate Compacts.
  Given the broad support for compacts among the states, we all know
that the issue of regional pricing is one that will continue to be
debated. I am pleased with the tremendous progress the Southern states
and other Northeastern states have made to move their compacts forward.

[[Page S14996]]

  While the debate continues, this reasonable compromise allows the
Northeast Compact to continue as the pilot project for the concept of
regional pricing
  The Northeast Dairy Compact has given farmers and consumers hope. The
Compact, which was authorized by the 1996 farm bill as a three-year
pilot program, has been extremely successful.
  The Compact has been studied, audited, and sued but has always come
through with a clean bill of health. Because of the success of the
Compact it has served as a model for the entire country.
  Mr. President, I am of course aware that some of my colleagues oppose
our efforts to bring fairness to our states and farmers by continuation
of the Dairy Compact pilot project.
  Also, unfortunately, Congress has been bombarded with misinformation
from an army of lobbyists representing the national milk processors,
led by the International Dairy Foods Association (IDFA) and the Milk
Industry Foundation. These two groups, backed by the likes of Philip
Morris, have funded several front groups to lobby against this
compromise.
  Their handy work has been seen recently in misinformed newspaper
editorials, deceiving advertisements and uninformed television ads.
Yesterday Senator Leahy and I came to the floor to correct the
misinformation contained in the Wall Street Journal Editorial.
  Mr. President, I would like to take this opportunity to set the
record straight about the operation of the Northeast Compact. It is
crucial that Congress understand the issues presented by dairy compacts
on the merits, rather than based on misinformation.
  When properly armed with the facts, I believe you will conclude that
the Northeast Dairy Compact has already proven to be a successful
experiment and that the other states which have now adopted dairy
compacts should in the future be given the opportunity to determine
whether dairy compacts will in fact work for them as well.
  Contrary to the claims of the opposition, regional compact regulation
remain open to the interstate commerce of all producer milk and
processor milk products, from whatever source. Compacts establish
neither ``cartels'', ``tariffs'' nor ``barriers to trade'' and are not
``economic protectionism.''
  According to the opponents characterizations, dairy compacts somehow
establish a ``wall'' around the regions subject to compact regulation,
and thereby prohibit competition from milk produced and processed from
outside the regions.
  These are entirely misleading characterizations.
  It is really quite simple and straightforward: All fluid, or beverage
milk sold in a compact region is subject to uniform regulation,
regardless of its source within or outside the compact region.
  This means that all farmers, including farmers from the Upper
Midwest, providing milk for beverage sale in the region, receive the
same pay prices without discrimination. It can thus be seen that there
is no economic protectionism or the erection of barriers to trade.
  Except for uniform regulation, the market remains open to all, and
the benefits of the regulations are provided without discrimination to
all participating in the market, including those who participate in the
market from beyond the territorial boundaries of the region.
  Next, I would like to address the actual and potential impact of
dairy compacts on consumer prices. In short, opposition claims about
the actual and possible impact of dairy compacts on consumers,
including low income consumers, are unfounded and grossly distorted.
  Over the years, while farm milk prices have fluctuated wildly,
remaining constant overall during the last ten years, consumers prices
have risen sharply.
  The explanation for this is apparently that variations in store
prices do not mirror the wild fluctuations in farm prices.
  In other words, when farm prices go up, the store prices go up, but
when the farm prices recede, the store prices do not come back down as
quickly or at the same rate. Hence, and quite logically, if you take
away the fluctuations in farm prices, you take away the catalyst for
unwarranted increases in store prices.
  When the 1996 Farm Bill granted consent to the Northeast Dairy
Compact as a pilot program, Congress gave the six New England states
the right under the compact clause of the Constitution to join together
to help regulate the price paid to farmers for fluid milk in the New
England region.
  The six New England states realized that in order to maintain a
viable agriculture infrastructure and an adequate supply of milk for
the consumers they needed to work together.
  When the compact passed as part of the 1996 Farm Bill, the opponents
were so sure the compact would not operate as its supporters had
promised, they asked the Office of Management of Budget to conduct a
study on the economic effects of the Northeast Dairy Compact.
  The opponents of the dairy compact intended for the OMB study to
discredit the dairy compact. The study did just the opposite. Instead,
the OMB study proved just what we had thought--that the dairy compact
works and it works well.
  The OMB studied the economic effects of the Northeast Dairy Compact
and especially its effects on the federal food and nutrition programs.
The study also examined the impacts of milk prices at various levels on
utilization and shipment of milk, and on farm income both within and
outside the Compact region.
  Here's what the study concluded:
  The New England retail milk prices were $.05 cents per gallon lower
on average then retail milk prices nationally following the first six
months of operation of the Northeast Dairy Compact.
  The compact over-order payments made in New England through the
Compact Commission have had little impact on the price consumers pay as
a result of the compact. Consumers, who are well represented on the
Compact Commission, are very pleased with how the Dairy Compact has
operated.
  The Northeast Dairy Compact has not added any costs to federal
nutrition programs, such as the Women, Infants and Children (WIC) and
the school lunch and breakfast program, due to compensation procedures
implemented by the New England Compact Commission. A program that helps
protect farmers and consumers with no cost to the federal government.
  The OMB study found that the Dairy Compact was economically
beneficial to dairy producers. It increased their income from the milk
sales about six percent.
  The study concluded that the retail prices in New England were lower
than the national average and it increased the income of dairy
producers. No wonder twenty-five states are interested in having
compacts in their states. And it's no wonder why governors, state
legislatures, consumers and farmers alike support the continuation of
the Northeast dairy compact.
  Also, the OMB study concluded that there were no adverse affects for
dairy farmers outside the Compact region and the study noted that some
dairy producers outside the region actually received increased
financial benefits through the sale of their milk into New England.
  The OMB study helped Congress understand just how well the compact
works. The opponents of the compact did not get what they had hoped
for--instead we all have benefitted, both opponents and proponents of
the compact, with the facts.
  Despite what some of my colleagues have said, the Northeast Dairy
Compact is working as it was intended to.
  Instead of trying to destroy an initiative that works to help dairy
farmers with no cost to the federal government, I urge my colleagues
from the Upper Midwest to respect the states' interest and initiative
to help protect their farmers and encourage other regions of the
country to explore the possibility of forming their own interstate
dairy compact in the future.
  Mr. President, the Northeast Dairy Compact has worked well. Just
think if other commodities and other important resources around the
country developed a program that had no cost to the federal government
and benefitted both those who produce, sell, and purchase the product.
  Mr. FEINGOLD. Mr. President, I rise today in strong opposition to
this legislation, which would revive an arcane

[[Page S14997]]

and unjust federal dairy policy that has destroyed thousands of family
dairy farms.
  Once again, the Senate is faced with dairy riders that fly in the
face of recommendations from the Secretary of Agriculture, our nation's
dairy farmers, and numerous taxpayer and consumer groups. It seems that
political favors are more important to some in this Congress than
policy decisions that help our nation's dairy farmers.
  During the last four years neither of these two harmful provisions--
Option 1A or the Northeast dairy compact--has won Senate approval. I
ask my colleagues on the other side of the aisle: why must Senate and
House leaders continue to play political games at the expense of our
nation's dairy farmers?
  Mr. President, these backdoor deals must stop. America's dairy
farmers deserve a national dairy policy that ensures that all dairy
farmers receive a fair price for their milk.
  Unfortunately, the House and Senate leadership went into a back room,
and snuck in these two riders that step up the attack on our dairy
industry.
  These decisions were separate even from the eyes and ears of members,
and most members of the Senate Agriculture committee. With the
proliferation of these backroom deals, it is no wonder that the general
public is frustrated with Congress.
  The simple fact is that neither of these two dairy riders has been
approved by both chambers of Congress, or the President.
  I would like to make my colleagues aware of the history behind these
two provisions. During the last four years, the only Senate vote
explicitly on the Northeast dairy compact resulted in a resounding
rejection.
  This year, the Senate again voted on a package containing the
Northeast dairy compact, and it again failed to gain enough support to
invoke cloture.
  Mr. President, the House has yet to take a single vote specifically
on the Northeast dairy compact. Compared to the record of the House,
these two votes make the Senate look like experts on the Northeast
dairy compact.
  Furthermore, Mr. President, the 1996 farm bill required that the
Northeast dairy compact expire upon implementation of USDA's reforms.
Unfortunately these dairy riders seek to defy the will of Congress, and
give the back of their hand to America's dairy farmers.
  After tens of thousands of comments, USDA came up with a modest plan
to reform our 30-year-old milk marketing order structure.
  More than 59,000 dairy farmers from all over the United States
participated in a USDA national referendum and 96% voted in favor of
the United States Department of Agriculture's final rule to consolidate
the current 31 federal milk marketing orders into 11, and to reform the
price of Class I milk.
  USDA's proposal garnered nearly uniform support in each of the 11
regions, including the Southeast, Midwest, and Northeast.
  The second of these harmful dairy riders, would overturn these
reforms.
  Well, Mr. President, I take the floor today to deliver a simple
message: Congress should not renew a milk marketing order system that
devastates family farmers, and imposes higher costs on consumers and
taxpayers.
  There has been a great deal of confusion over the effects of these
harmful dairy provisions. Some say that mandating Option 1A and a two
year extension of the Northeast dairy compact simply preserves the
status quo.
  This legislation does much more than simply extend the 60-year milk
marketing system.
  A new forward contracting provision in this dairy rider enables
processors to pay farmers much less than the federal blend price for
their milk.
  This forward contracting provision will also make the market less
competitive for all other producers by reducing demand on the open
market. Since it is likely that forward contracts would be offered to
only the largest producers, this provision will result in losses to
small and medium-sized producers, who will become residual suppliers.
  Mr. President, these dairy provisions shift the attack on our
nation's dairy farmers into overdrive. This harmful legislation will
continue to push our nation's dairy farmers out of business, and off
their land.
  For sixty years, dairy farmers across America have been steadily
driven out of business, and disadvantaged by the very Federal dairy
policy this legislation seeks to revive.
  In 1950, Wisconsin had over 143 thousand dairy farms. After nearly 50
years of the current dairy policy, Wisconsin is left with only 23
thousand farms. Let me repeat: 23 thousand farms.
  Why would anyone seek to revive a dairy policy that has destroyed
over 110 thousand dairy farms in a single state? That's more than five
out of six farms in the last half-century.
  This devastation has not been limited to Wisconsin. Since 1950,
America has lost over three million dairy farms. And this trend is
accelerating, since 1985, America has lost over half of its dairy
producers.
  Day after day, season after season, we are losing small farmers at an
alarming rate. While these operations disappear, we are seeing the
emergence of larger dairy farms.
  The trend toward a few large dairy operations is mirrored in States
throughout the nation. The economic losses associated with the
reduction of small farms goes well beyond the impact on the individual
farm families that have been forced off their land.
  The loss of these farms has devastated rural communities where small
family-owned dairy farms are the key to economic stability.
  Option 1A also hurts these communities in other ways: through higher
costs passed on to both consumers and taxpayers.
  Option 1A would increase prices for milk and cheese in virtually
every state in the country. Low income families and federal nutrition
programs, which rely heavily on milk and cheese, will be seriously hurt
by the price increases mandated by this legislation.
  The poor and elderly will be especially burdened by higher costs.
Under Option 1A and the Compact food stamp recipients would lose $40
million a year due to increases in beverage milk prices and another $18
million a year due to increased cheese prices.
  This legislation also soaks taxpayers with a milk tax by imposing
higher costs on every taxpayer because we all pay for nutrition
programs such as food stamps and the national school lunch program.

  According to USDA, Option 1A alone would increase the average
beverage milk price by nearly five cents a gallon and the cost of milk
used for cheese by about two cents a gallon.
  If we add up these costs to all of the federal nutrition programs,
the costs mount up quickly.
  Option 1A would cost the school lunch and school breakfast programs
$19 million a year in higher beverage milk prices and cheese prices.
  The WIC program would face over $16 million in higher cheese and milk
prices.
  Mr. President, the loss caused by Option 1A to the three major
nutrition programs is $93 million. These regressive taxes unfairly
burden children and the elderly. These hidden penalties on America's
children and elderly must not be allowed to continue.
  The fact is, we need a new national dairy policy that stops
devastating small farmers, and imposing higher costs on taxpayers and
consumers.
  During my six years in the United States Senate, and twelve years in
the Wisconsin State Senate, the overwhelming message I hear from dairy
farmers in Wisconsin, Minnesota and throughout the Midwest, is that we
need milk marketing order reform.
  Congress recognized the need for a new national dairy policy, and in
1996, mandated that USDA reform the Federal milk marketing order
system.
  Well, let's take a look at why farmers across the U.S. support USDA's
reforms. This chart compares Class I milk prices under the final rule
and the current pricing system.
  Under USDA's final rule dairy farmers in New England would receive
19.29 per hundredweight, a $.26 increase over the current system.
Farmers in eastern New York and Northern New Jersey would receive
$19.04 per hundredweight, an $.11 per hundredweight increase. In
Northern Florida, farmers would receive $20.34, a $.97 increase over
the current system.
  These statistics underscore the importance of USDA's reforms for
dairy farmers across the nation.
  As this chart makes clear, USDA's reforms provide relief to America's

[[Page S14998]]

dairy farmers, and begin to re-institute fairness into our dairy
pricing structure.
  Perhaps even more compelling is this simple bar graph that
illustrates the national average Class I milk price that farmers
receive under the final rule and the current pricing system.
  As you can see farmers would have received 58 cents more per
hundredweight under USDA's final rule.
  Farmers, consumer advocates, and taxpayer groups support USDA's
reforms, and oppose these harmful dairy riders.
  Mr. President, America's farmers demanded USDA's reforms. We should
heed their call and support USDA's final rule.
  Unfortunately, supporters of this legislation feel that they know
better than America's dairy farmers, and wish to prevent USDA's
moderate reforms. Ironically, one of the few changes to Federal dairy
policy over the last 60 years has accelerated the attack on small
farmers.
  Despite the discrimination against Wisconsin dairy farmers under the
Eau Claire rule, backdoor politicking during the eleventh hour of the
conference committee for the 1996 farm bill, stuck America's dairy
farmers with the devastatingly harmful Northeast Dairy Compact. This
provision further aggravated the inequities of the Federal milk
marketing order system by establishing the Northeast Interstate Dairy
Compact. While the Compact may sound benign, it establishes a price
fixing entity for six Northeastern States--Vermont, Maine, New
Hampshire, Massachusetts, Rhode Island, and Connecticut.
  The Northeast Interstate Dairy Compact Commission is empowered to set
minimum prices for fluid milk higher than those established under
Federal milk marketing orders. Never mind that farmers in the Northeast
already receive higher minimum prices under the antiquated, 60 year old
Eau Claire rule.
  The compact not only allows these six States to set artificially high
prices for their producers, it permits them to block entry of lower-
priced milk from producers in competing States. Further distorting the
markets are subsidies given to processors in these six States to export
their higher-priced milk to non-compact States.
  Who can defend this system with a straight face? This compact amounts
to nothing short of government-sponsored price fixing. It is
outrageously unfair, and also bad policy.
  The compact interferes with interstate commerce and wildly distorts
the marketplace by erecting artificial barriers around one specially
protected region of the nation.
  The compact arbitrarily provides preferential price treatment for
farmers in the Northeast at the expense of farmers in other regions who
work just as hard, who love their homes just as much and whose products
are just as good or better.
  It also irresponsibly encourages excess milk production in one region
without establishing effective supply control. This practice flaunts
basic economic principles and ignores the obvious risk that it will
drive down milk prices for producers outside the compact region.
  Despite what some have argued, the Northeast Dairy Compact hasn't
even helped small Northeast farmers.
  Since the Northeast first implemented its compact in 1997, small
dairy farms in the Northeast, where this is supposed to help, have gone
out of business at a rate of 41 percent higher than they had in the
previous 2 years--41 percent higher.
  In fact, compacts often amount to a transfer of wealth to large farms
by affording large farms a per-farm subsidy that is actually 20 times
greater than the meager subsidy given to small farmers.
  We need to support USDA's moderate reforms, reject these harmful
dairy riders and let our dairy farmers get a fair price for their milk.
  Mr. President, I yield the floor.
  Mr. KYL. Mr. President, today we are considering the District of
Columbia appropriations bill, which includes not only funding for the
nation's capital, but also regular appropriations for seven cabinet-
level departments--the Departments of Labor, Health and Human Services,
Education, State, Justice, Commerce, and Interior.
  The package also includes four major authorization bills covering
Medicare, foreign operations, satellite television, dairy programs, and
scrap-metal recycling.
  Mr. President, under ordinary circumstances, legislation should not
be packaged this way. If I were to base my vote merely upon the process
that led us to combine these measures into one huge bill, I would vote
no, as I have on the other omnibus bills that have come before the
Senate during the last few years. However, I think there are some
important distinctions between the package before us this year and what
we have seen in the past.
  Unlike last year, for example, when free-for-all negotiations
resulted in an orgy of new spending and wholesale concessions to the
White House, this year the individual parts of the bill were negotiated
separately, in a largely orderly process. Unlike last year, any
additional spending won by the White House was required to be offset so
that net spending would not increase.
  With the exception of the dairy provisions, which I oppose, I have
concluded that I would vote for each of the measures included here if
we had the opportunity to vote on them separately. For this reason and,
because on balance, I believe the good in the rest of the package
outweighs the bad, I will vote aye.
  Mr. President, when we look back on this legislation five or 10 years
from now, I think we will see one aspect of it as truly historic.
  The legislation, despite its shortcomings, establishes a historic new
precedent against ever again raiding the Social Security trust fund for
other purposes--a precedent that future Presidents and Congresses will
deviate from only at their own peril.
  The package has been designed to avoid intentionally spending a dime
of the Social Security surplus. And if our estimates turn out to be
right, it will be the first time since 1960--the first time in nearly
40 years--that Congress did not tap the Social Security surplus to pay
for other programs. It also means that we will be able to pay down
publicly held debt by another $130 billion or so this year.
  Mr. President, I think everyone needs to recognize that estimates of
spending and revenues can be affected by even the slightest changes in
the economy, and so we will need to be prepared to adjust spending
levels early next year if it appears that that is necessary to take
further action to safeguard the Social Security surplus. We should even
consider putting an automatic mechanism in place, as proposed in
legislation I cosponsored with Senator Rod Grams, to make sure Social
Security is never again tapped.
  In any event, it is important to recognize just how far we have come
since 1995. That was the year Bill Clinton sent Congress a budget that
would have spent every penny of the Social Security surplus every year
for the foreseeable future, and still run $200 billion annual deficits
on top of that. The President's FY96 budget submission would have
resulted in actual deficits rising from about $259 billion in 1995 to
roughly $289 billion this year.
  We did not follow the President's recommendations. We charted an
entirely different course. The result: We now have a budget that sets
aside the entire Social Security surplus and even runs an estimated $1
billion surplus in the government's operating budget. That is progress.
  Because we do not raid Social Security, we had to do a better job of
setting priorities so that we could take care of those things the
American people care most about, and to a large degree, I think we
succeeded. This bill provides a substantial increase in funds for
medical research at the National Institutes of Health. We provide even
more resources for education than the President asked for, and we take
a modest first step in the direction of public school choice and
providing local school districts with increased flexibility in how they
will use federal funds to meet the particular needs of their students.
We restore funding for hospitals and nursing homes that care for
Medicare patients.
  We also include additional resources for law enforcement, including
funding for 1,000 new Border Patrol agents, and funds to combat the
scourge of methamphetamine in our communities. We are able to provide
more money than the President sought for the Violence

[[Page S14999]]

Against Women Act. And we provide money to make sure federal agencies
can be better stewards of our national parks, forests, and wildlife
refuges.
  We require that international family-planning money be used for just
that--family planning, not abortion or lobbying to liberalize the
abortion laws of other countries. Although the compromise provisions
would allow the President to waive the limitations and provide about
$15 million to groups that engage in such activity, about 96 percent of
the dollars would still remain subject to the restrictions.
  Of course, funding these various priorities means we had to limit
spending in other areas in order to keep our promise not to raid Social
Security. For example, the National Endowment for the Arts does not get
the increase it sought. There will not be as much foreign aid as
President Clinton wanted. We cut the President's Advanced Technology
Program. To make doubly sure we keep our pledge to stay out of Social
Security, we include a small across-the-board spending cut to force
agencies to ferret out waste and abuse.
  It is hard for me to conceal my disappointment in several regards.
First, I regret that Congress did not protect the projected surplus in
the non-Social Security part of the budget. This bill, combined with
the other appropriations bills that have already been signed into law,
will spend the entire $14 billion surplus that was projected in the
government's operating budget --excluding Social Security--and it will
bust the spending caps Congress and the President agreed to only two
years ago.
  Second, there is still far too much wasteful spending in the budget.
  And third, there is so much advance funding in the bill for FY2001
that it will be difficult for us to stay within our spending targets
for next year.
  On balance, though, it strikes me that the short-term cost of
exceeding the caps and spending the relatively small non-Social
Security surplus for this year is more than outweighed by the long-term
discipline that will be imposed by the precedent we have set with
regard to protecting Social Security.
  Mr. President, with that in mind, I intend to vote for this bill.

                    A BAD DEAL FOR WORKING AMERICANS

  Mr. GRAMS. Mr. President, a year ago I was here in this chamber
speaking on the 1998 Omnibus Appropriations legislation. I criticized
the abusive process that made the entire negotiations exclusive,
arbitrary, and conducted behind closed doors by only a few
congressional leaders and White House staff, and few Members of the
Congress had any idea what was in the bill but were asked to approve it
without adequate review and amendments. I also urged the Congress not
to repeat the mistake that we need to reform the process and start the
process early in the year to avoid appropriations pressure.
  Many of my colleagues shared my views at the time and agreed that the
federal budget process had become a reckless game, and it not only
weakened the nation's fiscal discipline but also undermined the system
of checks and balances established by the Constitution.
  At the beginning of the 106th Congress, I argued repeatedly in this
chamber that the key to a successful budget process was to pursue
comprehensive budget process reforms. I have introduced legislation to
achieve these goals which includes legislation that would force us to
pass a legally-binding federal budget, allow an automatic continuing
resolution to kick-in to prevent government shutdown, set aside funds
each year in the budget for true emergencies; strengthen the
enforcement of budgetary controls; enhance accountability for Federal
spending; mitigate the bias toward higher spending; modify Pay-As-You-
Go (PAYGO) procedures to accommodate budget surpluses; and establish a
look-back sequester mechanism to ensure the Social Security surplus
will be protected. We also need to pursue biennial budgeting and
getting rid of the so-called ``baseline budgeting.''
  We were assured by Senate leaders that we were going to pursue real
budget process reform early this year and that we would never have
another omnibus spending bill in the future.
  Mr. President, I believe what we have before us today is a repeat of
what was promised to never occur again. Once more, with inadequate time
to review. The Houses passed this omnibus bill with absolutely no
knowledge of what was in it. This is nearly a play-by-play of 1998
because we have not reformed our budget process. As a result, after
seven Continuing Resolutions, we have before us an omnibus spending
bill that is full of creative financing and earmarked pork programs.
  Mr. President, when will we ever learn our lessons?
  Mr. President, it is entirely irresponsible and reckless that
Congress has over-used advanced appropriations, used directed scoring,
emergency spending and many other budgetary smoke and mirrors to dodge
fiscal discipline and significantly increase government spending. Like
last year's omnibus bill, this legislation is heavily loaded with
irresponsible and inappropriate provisions. It is severely flawed by
new spending, no CBO scoring, gimmick offsets and billions of pork-
barrel programs. Many last-minute spending needs were loaded into this
omnibus bill just in the last few days. I still cannot even tell you
what they are, since we haven't been given enough time to review it.
The double whammy delivered to Minnesota dairy farmers by adding a two-
year extension of the Northeast dairy compact and 1 A order reform is
my main reason for opposing this bill. These outrageous last-minute
additions seriously hurt Mid-West dairy farmers and are the reason why
we are still here today.
  This omnibus bill has again proven that big government is well and
alive in Washington. The bill provides a total $385 billion for just
five spending bills, a significant increase over last year's levels.
Congress is recklessly and irresponsibly throwing more and more
taxpayers' money to help the President enlarge the government. Billions
of dollars were added to the spending legislation avoiding the normal
committee process, without any amendments and full debate. If hiring
more police officers and more elementary school teachers is the
solution to stop crime and improve education, let us have an open
debate on the merits of the policy through the usual democratic
process. Let's not cut deals behind the closed door in meetings by just
a few.
  Since we established statutory spending limits, Washington has
repeatedly broken them because of lack of fiscal discipline. We have
done so again this year.
  In my judgment, this omnibus spending bill and the other
appropriation bills have been enacted have spent billions of dollars
more than the spending caps if we would use honest numbers to score
them. To date, the Congressional Budget Office has not provided us with
its estimates on this bill. Because of the CBO's inability to score the
bill, we do not know what the real cost of it, or whether it stays
within the 302(b) allocations.
  But we do know many accounting rules have been bent in putting this
bill together to avoid the tighter spending caps. Let me explain: This
bill relies heavily on the so-called ``directed scoring'' technique for
it increased spending. Traditionally, Congress always uses the
Congressional Budget Office estimates for scorekeeping. However,
because the Office of Management and Budget (OMB) has more favorable
estimates for some government programs than the CBO, the Congress
simply directed CBO to use OMB numbers to keep score for this year's
spending bills.
  One of these OMB estimates the CBO was directed to use is the $2.4
billion spectrum sales revenue expected to be collected next year. We
all know that level of sales will not be reached. In fact, we
criticized the President for using this overoptimistic number in his
past budgets.

  Just by using the OMB's rosy estimates, without making any hard
choices, Congress has increased this year's 302(b) allocations by over
$17.4 billion. But the real danger is, by the end of the year, the CBO
will use its own estimates to score our budget surplus or deficit. If
OMB's numbers prove to be unrealistic and wrong, we end up spending the
Social Security surplus we have vowed to protect and it will be too
late to adjust the budget accordingly. This is the last thing we want
to

[[Page S15000]]

do. That is why I was disappointed my bill to provide an automatic
sequester triggered by spending of the Social Security surplus was not
passed. This procedure is absolutely essential to ensure we keep our
commitment to protect Social Security.
  Again and again, Washington lowers the fiscal bar and then jumps over
it, or finds ways around it, at the expense of the American taxpayers,
so all the spenders and those special interests who benefit at other
expenses go home happy.
  Mr. President, abusive use of emergency spending is another gimmick
applied in this omnibus spending bill, as well as in the other
appropriation bills we've passed. Last year alone, Congress
appropriated $35 billion for so-called emergencies. This year again,
over $24 billion of emergency spending was appropriated. Since 1991,
emergency spending has totaled over $145 billion. Most of these
``emergencies'' were used to fund regular government programs, not
unanticipated true emergencies. Emergency spending is sought as a
vehicle to add on even more spending priorities and thus to dodge
fiscal discipline because emergency spending is not counted against the
spending caps. This has gone too far. We need a better way to budget
for emergencies. Most of this spending can be planned within our budget
limits. Even natural disasters happen regularly--why not budget for
them, as I proposed in my budget process legislation.
  Mr. President, while I agree ``advance appropriations,'' ``advance
funding'' and ``forward funding'' are not uncommon practice here, it
does not mean they are the right thing to do, particularly when these
budget techniques are used to dodge much-needed fiscal discipline.
  In the past five years, ``advance appropriations'' have increased
dramatically, jumping from $1.9 billion in FY 1996 to $11.6 billion in
FY 2000, an increase of $9.7 billion over five years. This year, at
least $19 billion was advanced into FY 2001 and outyears which will
create even worse problems for us next year and in the future.
  I understand the upward spending pressure the Congress is facing this
year and in the outyears. But I believe we should, and can, meet this
challenge by prioritizing and streamlining government programs while
maintaining fiscal discipline. We can reduce wasteful, unnecessary,
duplicated, low-priority government programs to fund the necessary and
responsible function of government. But we need a Biennial Budget, as
Senator Domenici recommends, to give us time to do this.
  Instead of streamlining federal spending, we have thrown in more
money to please big spenders without the needed analysis to ensure the
spending will help us solve problems. Like last year's bill, this bill
looks like a Christmas tree full of pork projects. Many are added in
the last minute negotiation. But we don't know exactly what they are
and how much they cost, because again we have not been given enough
time to review this bill. Here are a few examples as identified by
Senator McCain:
  An entirely new title is included in the legislation during last
minute negotiations, the ``Mississippi National Forest Improvement Act
of 1999,'' which had not previously been considered in the previous
Senate or House bills. A half million dollars is added for the Salt
Lake City Olympic tree program. It earmarked $2 million for the
University of Mississippi Center for Sustainable Health Outreach and $3
million for the Center for Environmental Medicine and Toxicology at the
University of Mississippi Medical Center at Jackson. An earmark of $3
million is added for the Wheeling National Heritage Area and $3 million
for the Lincoln Library. It earmarked $2 million for Tupelo School
District in Mississippi for technology innovation. It includes an
earmark of $3 million for the Southwest Pennsylvania Heritage Area. It
also earmarked $1 million for the completion of the Easter Seal
Society's Early Childhood Development Project for the Mississippi River
Delta Region and $1 million for the Center for Literacy and Assessment
at the University of Southern Mississippi. It also includes an increase
of $3.6 million for Washington State Hatchery Improvement.
  As the result, we've ended up spending much more money than we should
have. My biggest fear, Mr. President, is this omnibus spending
legislation may allow Congress and the President to spend some of the
Social Security surplus by not imposing an adequate across-the-board
spending reduction.
  Even counting all the ``directed scoring,'' ``advanced
appropriations,'' every penny of the $14 billion on-budget surplus and
other budgetary gimmicks, it is estimated that Congress could still dip
into the Social Security surplus by nearly $5 billion. To fill that gap
we need to reduce government spending by 0.97 percent across-the-board.
But the agreement reached between congressional leaders and the White
House allows only a 0.38 percent reduction which would result in $1.3
billion savings. Clearly, this is done just for face-saving reason, and
will not ensure that the Social Security surplus is protected.
  The proponents of this omnibus bill may quickly point out that there
are offsets to fund the new spending. But we all know most of the
offsets are simply gimmicks. The best example is a $3.5 billion
transfer from the Federal Reserve surplus to the Treasury.
  As you know, there is nothing new about this proposal and it has been
around for quite a while. In the past, Chairman Greenspan called this
transfer of the Fed's surplus to the Treasury ``a gimmick that has no
real economic impact on the deficit.'' Because it is just an intra-
governmental transfer that would not change the government's true
economic and financial position.
  Other offsets such as a one-day delay in pay for our military and
civilians will cause enormous financial hardship for millions of
American families who depend on the regular paychecks to pay their
mortgage, daycare for their kids, and other priorities. Many small
businesses and contractors can be adversely affected by this offset as
well. Again, this has proven that the victims of Washington's spending
spree are the American taxpayers.
  Mr. President, there are many provisions in the omnibus
appropriations bill I support, such as the BBA Medicare fix which
includes reinstatement of Minnesota's DSH allotment, the State
Department Authorization which includes payment of the U.N. arrears and
my embassy security proposal, Home Satellite TV access and others. In
fact I have worked hard on many of these proposals. However, I believe
the dairy provisions and the general lack of fiscal discipline in the
bill have far overshadowed the good provisions. Overall, it is a bad
deal for working Americans in general and it is a bad deal for my
fellow Minnesotans in particular. I therefore cannot in good conscience
vote for this fiscally irresponsible legislation.
  Mr. GRASSLEY. Mr. President, I rise to express my deep disappointment
at the language affecting Federal dairy policy included in the Omnibus
appropriations bill before us. As the Members know, the Omnibus measure
includes an extension of the Northeast Dairy Compact and language on
reforming our Nation's Federal dairy policy which has been in place
since the Depression.
  It may seem unusual to some Members that a Senator from Iowa would
have an interest in this matter. While Iowa's reputation as an
agriculture powerhouse is well-established and well-deserved, I think
when many people think of agriculture in Iowa, they think of
commodities such as soybeans or pork. However, the dairy industry is
very important to Iowa as well. The total economic contribution of the
dairy industry to the Iowa economy is over $1.5 billion annually.
Nearly 10,000 Iowans are employed through dairy farming and processing.
Furthermore, Iowa ranks 12th in the Nation in Dairy Production. So the
State of Iowa has good reason to be concerned about Federal dairy
policy.
  I have long been concerned about the impact of the Northeast Dairy
Compact, which was authorized by the 1996 farm bill and which was due
to sunset in October of this year, has had, and how it will affect
producers in the future. I voted in 1996 to strip the language from the
farm bill which allowed for the formation of the Northeast Dairy
Compact. The only reason the language was included in the farm bill was
political trading at the last minute. Since the inception of the
Northwest Compact, it is clear that its consequences have not been
good.

[[Page S15001]]

  According to the International Dairy Foods Association, the Northeast
Compact has cost New England milk consumers nearly $65 million in
higher milk prices, at the same time costing child nutrition programs
$9 million more. Consumers have paid a price that is too high for the
Northeast Compact. We should not make more consumers suffer the same
consequences. I also believe that compacts are an abuse of the
Constitution. While the Constitution does allow for the formation of
compacts, it is usually invoked for transportation or public works
project.
  The Northeast Dairy Compact is the first time that compacts have been
used for the purpose of price fixing for regional interests. For the
most effective functioning of the U.S. economy, it must be unified.
Preventing economic protectionism is at the heart of our Constitution.
Renewing or expanding compacts flies in the face of that basic tenet.
Furthermore, neither the Judiciary Committee or the Agriculture
Committee, which have jurisdiction over such matters, has had the
opportunity to review this measure. Such a committee examination is
warranted and necessary.
  One of the things that worries me about dairy compacts is their
potential effect on other commodities. Higher prices mean more milk and
less demand. The key to increasing dairy producers' income is expanding
demand for milk and dairy products. If we take steps to expand dairy
compacts, we will be going in the opposite direction. It is also my
view that compacts are contradictory to the philosophy of freedom to
farm, which my friend, the senior Senator from Vermont, supported. The
whole philosophy behind freedom to farm was moving away from the old
``command and control'', government-run AG policies of the past. We
need more free markets and free trade, not less. which brings me to my
final point on compacts. As Chairman of the Finance Committee's
Subcommittee on Trade, maintaining a strong trade position for the
United States is my top priority. One of the reasons why the United
States is the only true superpower left in the world and why our Nation
remains economically strong while others have faltered is because we
function as one economically. Our economic prosperity is undeniable
proof of the superiority of free and open markets. If we were to allow
the perpetuation of dairy compacts, it would send a very damaging
signal to the rest of the world.

  It would send the message that we do not have the confidence that a
free and open economy will ensure that producers who come to the market
with a quality product will be able to support themselves. Not only is
the compact language in this bill unacceptable for dairy producers in
the Midwest, but the Omnibus bill also includes language on the
Nation's milk marketing orders that is detrimental to Iowa's dairy
producers. Members know that milk marketing orders are a system put in
place over 60 years ago to regulate milk handlers in a particular order
region to promote orderly marketing conditions.
  The 1996 farm bill required USDA to cut the number of marketing
orders by over half and implement an up-to-date market oriented system
of milk distribution. After a great deal of study and comment, USDA
came up with two proposals, Option 1-A, and Option 1-B. Option 1-A is
close to the status quo and Option 1-B is geared toward the free market
and modernizing the system. While neither proposal was perfect, Option
1-B was definitely a better choice. However, given the concerns
expressed by the public about both proposals, USDA issued a compromise
initiative, which was still preferable to Option 1-A. Unfortunately,
Option 1-A proponents have succeeded in getting Option 1-A language
included in the Omnibus appropriations bill.
  Those who favor 1-A sometimes make the argument that the compromise
devised by USDA would cost dairy farmers nationwide $200 million.
However, according to the USDA, net farm income would be higher under
the compromise that under the status quo which is what 1-A is in many
ways. The Food and Agricultural Policy Research Institute, which is
located in my State at Iowa State University, has concluded that 60
percent of the Nation's dairy farmers would receive more income under
the USDA compromise plan.
  The unequal treatment of the old system, which is maintained by 1-A,
artificially raises prices for milk in other parts of the country,
encouraging excess production which spills into Midwestern markets.
This simply lowers the price that Midwestern producers receive.
  The Federal Milk Marketing order System is out of date and out of
touch with modern production and economics. It is long overdue for
reform and this language in the Omnibus bill just puts that off. My
producers and others in other Midwestern States have endured the
inequities of the Milk Marketing Order System long enough. I am very
disappointed that the unfairness of the old system would be perpetuated
by the language in this bill. We could still correct the mistakes made
by this bill which would have a tremendously detrimental effect on
dairy producers within Iowa and the rest of Midwest.
  I urge the leadership on both sides of the aisle to work with
Midwestern Senators to help put an end to the unfair treatment of the
Midwestern dairy farmers. Thank you.
  Ms. SNOWE. Mr. President, I reiterate my support for the two year
extension of the very successful Northeast Interstate Dairy Compact.
And after all I have read recently--not that one should believe
everything they read--I feel compelled to set the record straight on
this issue one more time.
  The Northeast Dairy Compact has addressed the needs of states in New
England who compacted together within their region to determine fair
prices for locally produced supplies of fresh milk. All six
legislatures and all six governors in New England approved the Compact.
  In fact, in 1989-1990, the Vermont House passed it unanimously and
the Senate passed it 29 to 1. The Maine House passed it 114 to 1 and it
was unanimously adopted by the Senate. The legislatures in Connecticut,
Massachusetts, New Hampshire and Rhode Island adopted it overwhelmingly
in 1993.
  I would also note that despite the varying views, party affiliations
and economic philosophies, this is one issue where the entire New
England Congressional Delegation is united. And that, in and of itself,
is quite a feat.
  Let me tell you why New England is united behind the Dairy Compact.
We want our family farmers. This way of life is threatened for a number
of reasons including the encroachment of development which leads to the
increased cost of land.
  I think one Mainer summed it up quite nicely in a letter to the
editor. In this letter she noted that it was okay to be against the
Compact ``. . . if you think we will be better off having subdivisions
where our farms once stood, if you believe it's to our advantage to say
good-bye to the last family farms and hello to big business controlling
the production, distribution and pricing . . . .''
  In my own state of Maine we have lost 31 percent of our dairy farms
in the last 10 years. We have 485 dairy farms left and they average 80
milking cows and provide 2100 related jobs. They allow the continuation
of a rural way of life that is fast disappearing not only in New
England but throughout the country. And it is a way of life that we
will not give up without a fight.
  The men and women who own our dairy farms are doing it because it is
in their blood--their parents did it, their grandparents did it and in
many cases their great grandparents did it. You don't go into dairy
farming to make money--you go into it because it is in your blood, it
is what you know and what you love. And the Compact is the only thing
standing between many of these families and the loss of not only their
farm but their way of life.
  In Maine we have a saying that you are ``from away'' if you are not
from Maine. Let me assure you that if you told a Maine dairy farmer
that he was part of a price fixing cartel, as several newspapers have
claimed, he would immediately know that you were from away . . . far,
far away.
  The beauty of the Compact is that it reflects the New England way of
life--self-reliance--we don't ask the federal government for one penny.
Instead, New Englanders pay a few cents more for milk to support the
Compact--a very small price to pay to protect our rural way of life.
  Let me repeat that--we are not asking the federal taxpayer in
Wisconsin

[[Page S15002]]

or Texas or Minnesota to subsidize our farmers--although I might add
that New England's taxpayers have historically subsidized farmers in
other parts of the country.
  The Compact has proven to be an effective approach to address farm
insecurity. The Compact has protected New England against the loss of
their small family dairy farms and the consumers against a decrease in
the fresh local supply of milk. The Compact has stabilized the dairy
industry in this entire region and protected farmers and consumers
against volatile price swings.
  Over ninety-seven percent of the fluid milk market in New England is
self-contained within the area, and fluid milk markets are local due to
the demand for freshness and because of high transportation costs, so
any complaints raised in other areas about unfair competition are quite
disingenuous.
  All we are asking, Mr. President, is the continuation of the
Northeast Dairy Compact, the existence of which does not threaten or
financially harm any other dairy farmer in the country.
  Let there be no mistake, the Northeast Dairy Compact does not stand
alone in the Omnibus bill. Additional dairy language is included in the
bill that restores the existing federal program, the Milk Marketing
Order system, which fixes the price of milk in different regions across
the country, and is initiated and approved by producers in specific
areas.
  The USDA adopted a final Rule on Milk Marketing Orders in March, a
rule I might add that favors dairy farmers in the Upper Midwest at the
expense of the rest of the country. On September 22, the House
expressed its opposition to this rule when they voted 285-140 to
restore the current system by placing a moratorium on the Final Rule.
So, this is not one region of the country speaking--although some
apparently believe that New England's family farmers make a good
scapegoat--as 65 percent of the House of Representatives voted to pass
the moratorium language.
  The New England Compact adds about two cents a gallon to the
consumer--not 20 cents as the Wall Street Journal would have you
believe. They seem to be under the impression that the farmers set the
price for the milk you buy at the store--the fact is that the prices,
as we all know, are set by the retailer. Under the Compact, New England
retail milk prices have been among the lowest and the most stable in
the country.
  The opposition has tried to make the argument that interstate dairy
compacts increase milk prices. This is just not so as milk prices
around the U.S. have shown time and again that prices elsewhere are
much higher and experience much wider price shifts than in the
Northeast Compact states. Just take a look at dairy prices around the
country for a gallon of milk.
  The price in Bangor and Augusta, Maine ranged from $2.89 to $2.99 per
gallon from February to April of 1999 and has remained stable at $2.89
for the last several months.
  In the Boston, Massachusetts market, the price stayed perfectly
stable--at $2.89--from February to April of 1999.
  The price in Seattle ranged from $3.39 to $3.56 over the same time
period. Washington State is not in a compact, yet their milk was
approximately 50 cents higher per gallon than in Maine. The range in
Los Angeles was from $3.19 to $3.29. In San Diego, the range was from
$3.10 to $3.62. California is not in a compact.
  Las Vegas prices were $2.99 all the way up to $3.62. Not much price
stability there, but then, Nevada is not in a compact. In Philadelphia,
the range was $2.78 to $3.01 per gallon--not as wide a shift as Nevada
but a much wider price shift than the Northeast Compact states. It's no
wonder Pennsylvania dairy farmers want to join us.
  How about Denver--Colorado is not in a compact. A gallon of milk in
Denver has cost consumers anywhere from $3.45 to $3.59 over the past
few months, over one half of a dollar more than in New England. So, the
Northeast Dairy Compact has not resulted in higher milk prices in New
England, but the milk prices are among the lowest in the country--and
are among the most stable.
  Only the consumers and the processors in the New England region pay a
few cents extra for milk that already costs less than just about
anywhere else in the country--to provide for a fairer return to the
area's family dairy farmers and to protect a way of life important to
the people of the Northeast.
  Also, where is the consumer outrage from the Compact states for
spending a few extra pennies for fresh fluid milk so as to ensure a
safety net for dairy farmers so that they can continue an important way
of life? I have not heard any swell of outrage of consumer complaints
over the last three years. Why, because the consumers also realize this
initial pilot project, whose costs are borne entirely by the New
England consumers and processors, has been a huge success.
  So, I ask my colleagues to look at the facts, not the fables being
spread by those who have simply chosen not to let the facts get in
their way.
  Mr. KENNEDY. Mr. President, I welcome this opportunity to express my
strong support for the Northeast Dairy Compact. Since taking effect in
October 1997, the Compact has stabilized milk prices for both farmers
and consumers in New England.
  Farmers across the country are unable to make ends meet. The number
of farmers in New England has declined significantly in recent years.
In 1992, Massachusetts had 365 dairy farms. Today, that number has
declined to 290 dairy farms. Farmers in New England are losing a
priceless heritage, that their families have owned for generations--
some since the 1600s. The Northeast Dairy Compact helps ensure that in
the face of these difficult times for their industry, our farmers will
have a consistent income to preserve their way of life.
  There are many misconceptions about the Dairy Compact. One of the
most serious misconceptions is that taxpayers pick up the cost of the
Compact. Taxpayers do not pay for this program--it is run at no cost to
the federal government.
  In addition, with respect to competition a Congressional a condition
imposed on the Compact specifically provides that: ``The Northeast
Interstate Dairy Compact Commission shall not prohibit or in any way
limit the marketing in the compact region of any milk or milk product
produced in any other production area in the United States.''
  Another misconception is that the Dairy Compact hurts the poor. This
program does not hurt poor people. WIC and the school lunch program are
exempt. In fact, in New England, the Compact overpaid these programs
for two years in a row.
  When approved in 1996, the purpose of the Dairy Compact was to ensure
the viability of dairy farming in the Northeast and to ensure an
adequate supply of local milk to consumers. The Compact is a price
support, and was never intended to make anyone rich. It was intended to
preserve small family farms and provide safeguards against excessive
production.
  The Compact has been a great success. The price of milk has actually
dropped by an average of 5 cents a gallon across New England, and for
many months at a time, prices have remained so stable that no compact
money has been paid to farmers.
  The Dairy Compact is good for our farmers, preserving their way of
life. It is good for the environment, preserving farms and green space
that Western Massachusetts is known for. And it is good for consumers,
stabilizing prices and ensuring a fresh and local supply of milk.
  We stand for free competition, but we also stand for fair
competition. In many areas of current law, there are long-standing
provisions designed to produce competition that is both free and fair.
The New England Dairy Compact deserves the support it has received from
the Senate in recent years, and I hope that it will continue to receive
that support.
  Mr. HARKIN. Mr. President, this is a great day for the critically
important search for medical breakthroughs. I am very pleased to say
that the omnibus appropriations act contains a record $2.3 billion
increase in support for medical research through the National
Institutes of Health. We are now well on our way towards our goal of
doubling our nation's investment in the search for medical
breakthroughs.
  This increase will directly benefit the health of the American
people. It will speed up the day when we have a

[[Page S15003]]

cure for cancer and other deadly diseases.
  On top of that, the Senate has passed S. 1268, the Twenty-First
Century Research Laboratories Act of 1999. This bill cosponsored by
Senators Frist, Kennedy, Chafee, Reed of Rhode Island, Mack, Mikulski,
Murray, Cleland, Helms, Warner, Sarbanes, Schumer, Cochran, Durbin,
Moynihan, Boxer, Roberts, Reid of Nevada, Specter, Feinstein, Collins,
Inouye and Hagel. I want to thank my colleagues for cosponsoring this
legislation, and for their support in getting it passed.
  This bill addresses a critical shortfall in our nation's medical
research enterprise. I was pleased to work with Senator Specter this
year to achieve a $2.3 billion increase for the National Institutes of
Health. The Conference Agreement of the Fiscal Year 2000 Labor, Health
and Human Services, Education and Related Agencies Appropriations
Subcommittee, provides $17.9 billion for the NIH. This puts us well on
track to double funding for the NIH over the next five years, a target
that was agreed to by the Senate, 98-0, in 1997.
  However, as Congress embarks on this important investment in improved
health, we must strengthen the totality of the biomedical research
enterprise. While it is critical to focus on high quality, cutting edge
basic and clinical research, we must also consider the quality of the
laboratories and buildings where that research is being conducted.
  In fact, Mr. President, the infrastructure of research institutions,
including the need for new physical facilities, is central to our
nation's leadership in medical research. Despite the significant
scientific advances produced by Federally-funded research, most of that
research is currently being done in medical facilities built in the
1950's and 1960's, a time when the Federal government obligated from
$30 million to $100 million a year for facility and equipment
modernization. Since then, however, annual appropriations for
modernization of our biomedical research infrastructure have
dramatically declined, ranging from zero to $20 million annually over
the past decade.
  I am pleased to report that this year we were able to increase that
amount to $75 million in our appropriations bill. While this is an
important improvement, much more is needed. As a result, many of our
research facilities and laboratories are outdated and inadequate to
meet the challenge of the next millennium.
  In order to realize major medical breakthroughs in Alzheimer's,
diabetes, Parkinson's, cancer and other major illnesses, our nation's
top researchers must have top quality, state-of-the-art laboratories
and equipment. Unfortunately, the status of our research infrastructure
is woefully inadequate.
  A recent study by the National Science Foundation finds that academic
institutions have deferred, due to lack of funds nearly $11.4 billion
in repair, renovation, and construction projects. Almost one quarter of
all research space requires either major renovation or replacement and
70% of medical schools report having inadequate space in which to
perform biomedical research.
  A separate study by the National Science Foundation documents the
laboratory equipment needs for researchers and found that 67 percent of
research institutions reported an increased need for laboratory
instruments. At the same time, the report found that spending for such
instruments at colleges and universities actually declined in the early
1990s.
  Several other prominent organizations have documented the need for
increased funding for research infrastructure. A March 1998 report by
the Association of American Medical Colleges stated that ``The
government should reestablish and fund a National Institutes of Health
construction authority. . . .'' A June 1998 report by the Federation of
American Societies of Experimental Biology stated that ``Laboratories
must be built and equipped for the science of the 21st century . . .
Infrastructure investments should include renovation of existing space
as well as new construction, where appropriate.''
  As we work to double funding for medical research over the next few
years, the already serious shortfall in the modernization of our
nation's aging research facilities and labs will continue to worsen
unless we take specific action. Future increases in NIH must be matched
with increased funding for repair, renovation and construction of
research facilities, as well as the purchase of modern laboratory
equipment.
  Mr. President, the bill that passed the Senate today expands federal
funding for facilities construction and state-of-the-art laboratory
equipment through the NIH by increasing the authorization for this
account within the National Center for Research Resources to $250
million in FY 2000 and $500 million in FY 2001.
  In addition, the bill authorizes a ``Shared Instrumentation Grant
Program'' at NIH, to be administered by the Center. The program will
provide grants for the purchase of shared-use, state-of-the-art
laboratory equipment costing over $100,000. All grants awarded under
these two programs will be peer-reviewed, as is the practice with all
NIH grants and projects.
  We are entering a time of great promise in the field of biomedical
research. We are on the verge of major breakthroughs which could end
the ravages of cancer, heart disease, Parkinson's and the scores of
illnesses and conditions which take the lives and health of millions of
Americans, But to realize these breakthroughs, we must devote the
necessary resources to our nation's research enterprise.
  I want to thank the Association of American Universities, the
Association of American Medical Colleagues and the Federation of
American Societies of Experimental Biology for their support for this
legislation.
  I thank my colleagues for their support of this important health care
legislation, and I look forward to working with our colleagues in the
House of Representatives next year to ensure this legislation is signed
into law. Thank you.
  Mr. FRIST. Mr. President, I am pleased that the Senate passed today,
S. 1243, the Prostate Cancer Research and Prevention Act, which I
introduced on June 18, 1999 to address the serious issue of prostate
cancer.
  This year 37,000 American men will die, and 179,300 will be diagnosed
with prostate cancer, the second leading cause of cancer-related deaths
in American men. Cancer of the prostate grows slowly, without symptoms,
and thus is often undetected until in its most advanced and incurable
stage. It is critical that men are aware of the risk of prostate cancer
and take steps to ensure early detection.
  While the average age of a man diagnosed with prostate cancer is 66,
the chance of developing prostate cancer rises dramatically with age--
which makes it important for men to be screened or consult their health
care professional. The American Cancer Society and the American
Urological Association recommend that men over 50 receive both an
annual physical exam and a PSA (prostate-specific antigen) blood test.
African-American men, who are at higher risk, and men with a family
history of prostate cancer should begin yearly screening at age 40.
  Even if the blood test is positive, however, it does not mean that a
man definitely has prostate cancer. In fact, only 25 percent of men
with positive PSAs actually have prostate cancer. Further testing is
needed to determine if cancer is actually present. Once the cancer is
diagnosed, treatment options vary according to the individual. In
elderly men, for example, the cancer may be especially slow growing and
may not spread to other parts of the body. In those cases, treatment of
the prostate may not be necessary, and physicians often monitor the
cancer with follow-up examinations.
  Unfortunately, preventive risk factors for prostate cancer are
currently unknown and the effective measures to prevent this disease
have not been determined. In addition, scientific evidence is
insufficient to determine if screening for prostate cancer reduces
deaths or if treatment of disease at an early stage is more effective
than no treatment in prolonging a person's life. Currently, health
practitioners cannot accurately determine which cancer will progress to
become clinically significant and which will not. Thus, screening and
testing for early detection of prostate cancer should be discussed
between a man and his health care practitioners.
  In an effort to help address the serious issues of prostate cancer
screening,

[[Page S15004]]

to increase awareness and surveillance of prostate cancer, and to
unlock the current mysteries of prostate cancer through research, the
``Prostate Cancer Research and Prevention Act'' expands the authority
of the Centers for Disease Control and Prevention (CDC) to carry-out
activities related to prostate cancer screening, overall awareness, and
surveillance of the disease. In addition, the bill extends the
authority of the National Institutes of Health to conduct basic and
clinical research in combating prostate cancer.
  The bill directs the CDC to establish grants to States and local
health departments in an effort to increase awareness, surveillance,
information dissemination regarding prostate cancer, and to examine the
scientific evidence regarding screening for prostate cancer. The main
focus is to comprehensively evaluate the effectiveness of various
screening strategies for prostate cancer and the establishment of a
public information and education program about the issues regarding
prostate cancer. The CDC will also strengthen and improve surveillance
on the incidence and prevalence of prostate cancer with a major force
on increasing the understanding of the greater risk of this disease in
African-American men.
  The bill also reauthorizes the authority of the CDC to conduct a
prostate screening program upon consultation with the U.S. Preventive
Services Task Force and professional organizations regarding the
scientific issues regarding prostate cancer screening. The screening
program, when implemented, will provide grants to States and local
health departments to screen men for prostate cancer with priority
given to low income men and African-American men. In addition the
screening program will provide referrals for medical treatment of those
screened and ensure appropriate follow up services including case
management.
  Finally, to continue the investment in medical research, the bill
extends the authority of the National Cancer Institute at the National
Institutes of Health to conduct and support research to expand the
understanding of the cause of, and find a cure for, prostate cancer.
Activities authorized include basic research concerning the etiology
and causes of prostate cancer, and clinical research concerning the
causes, prevention, detection and treatment of prostate cancer.
  Mr. President, on the very day I introduced this bill last June, I
participated in an event sponsored by the American Cancer Society and
Endocare to award our former colleague Senator Dole for his leadership
in raising public awareness for prostate cancer. In 1991, Senator Dole
was diagnosed with prostate cancer, and since that diagnosis and
successful treatment he has turned this potential tragedy into a
triumph as he has helped untold others by raising public awareness of
this devastating disease. I want to take this opportunity to thank
Senator Dole and organizations that have worked tirelessly to help
promote this and other men's health issues, including The American
Cancer Society, The Men's Health Network, and American Urological
Association. I also want to thank these organizations for their support
and help in drafting this legislation. I am pleased that the Senate has
acted to pass this important bill, which will help to further increase
awareness, surveillance and research of this deadly disease, and look
forward to its ultimate enactment into law.
  Mr. CLELAND. Mr. President, I would like to add some additional
comments to my statement that appeared in the Congressional Record on
Tuesday, November 16, 1999.
  Just a few days ago, on Tuesday, November 16, several constituents of
mine were involved in a disastrous truck-related crash on I-285, a
major commuter route around Atlanta. The crash took place during the
morning rush hour. Four tractor-trailer trucks were involved in the
crash, two of which were tankers hauling flammable materials. Four
passenger cars were also involved in the crash, and tragically, one
woman was killed when her vehicle was crushed between two tractor-
trailer trucks. Four others were rushed to the hospital to be treated
for injuries. Thankfully, no further fatalities have been reported and
no evacuation was required due to the sensitive material two of the
trucks were hauling. This crash underscores the need to guarantee that
truck safety is a priority in this country, and hopefully, reduce the
occurrence of accidents such as this.
  H.R. 3419 is a step in the right direction. It creates a new motor
carrier safety administration. In a hearing before the Senate Commerce
Committee, of which I am a member, the Department of Transportation
(DOT) Inspector General (IG) testified that the current oversight
system for the trucking industry within the Federal Highway
Administration (FHWA) is not adequate. In fact, one of the main
supporters of this legislation is Transportation Secretary Slater, who
saw the need to create a separate motor carrier oversight
administration focused entirely on safety.
  Now that Congressional sentiment has swung toward adoption of H.R.
3419 and the establishment of a new Motor Carrier Safety
Administration, my colleagues and I should track the implementation of
this statute to ensure that the new agency will not bring with it the
problems associated with the former body. Safety and compliance should
be the utmost concerns of this office, with the American motorist as
the benefactor of their efforts.
  Mrs. BOXER. Mr. President, I would like to speak about H.R. 3419, the
Motor Carrier Safety Improvement Act, which the Senate approved today.
I commend Senator McCain, chairman of the Commerce Commitee, for
holding hearings on this issue. These hearings, as well as reports from
the Department of Transportation's Inspector General, have shown how
critical it is for us all to pay closer attention to the safety
problems on our highways.
  In 1998, 5,374 people were killed in truck-related crashes and over
127,000 were injured. Although trucks account for only 3 percent of
registered vehicles, they are involved in 9 percent of fatal crashes,
and 12 percent of all highway-related deaths. This is simply
unacceptable, and we must do all we can to reduce fatalities and
injuries on our highways.
  Recently, I met with one of my constituents, Cynthia Cozzolino, who
lost her brother, sister-in-law, young nephew, and niece in a horrible
truck-related crash last August. This terrible tragedy could have been
prevented if we made safety a higher priority, particularly truck
inspection. Worn straps may have contributed to a truck spilling its
load of concrete piping instantaneously killing this young family
riding in their van behind the truck.
  Highway truck traffic is an increasing part of our economy.
California highway trucks carry 57 billion tons per mile, second only
to Texas. In Southern California, the growing goods movement from ports
and airports will push the current regional truck volume up by 40
percent over the next 20 years. One section of Interstate 15 is likely
to see almost 13,000 truck trips a day. That is why we must do all we
can to strengthen our commitment to safety on our highways.
  I am encouraged by certain key features of H.R. 3419. By establishing
a separate Motor Carrier Safety Administration, at long last we are
making safety a priority. The bill directs the Secretary of
Transportation to develp a long term strategy for improving commercial
motor vehicle, operator and carrier safety. It also directs the
Secretary to implement safety improvement recommendations from the
Inspector General, and it calls for the development of staffing
standards for motor carrier safety inspectors at our international
border areas, an important element for California.
  In addition, strengthening the Commercial Driver License regulations
by explicitly directing the disqualification of any commercial driver
found to have caused a death because of negligent or criminal operation
of a truck or bus and establishing stern penalties for foreign carriers
who operate illegally beyond the current southern border commercial
zone, are key improvements. Disqualifying these carriers on the spot
will send a strong deterrent measure to any foreign trucking or bus
companies who think that they can violate current motor carrier laws
and regulations with impunity.
  However, I am concerned that H.R. 3419 is not stronger in terms of
potential conflict of interest in the research conducted for this new
administration. According to testimony before the Surface
Transportation Subcommittee, in

[[Page S15005]]

1996, the Office of Motor Carriers (OMC) awarded more than $8 million
to the trucking industry and its consultants to perform research on
various issues, including driver fatigue and graduated licensing. I
understand that such research can form the basis for future rulemakings
governing the trucking industry.
  The new Motor Carrier Safety Administration must maintain a high
degree of integrity and independence. I supported a provision that
specifically forbids any research for rulemaking and other programs
that is conducted by any entity with a vested economic interest in its
outcome, and to forbid any individual who serves in a senior position
within the new motor carrier agency from maintaining any affiliation
with the trucking industry. H.R. 3419 includes a provision that directs
the new motor carrier administrator to comply with the current Federal
regulations regarding conflict of interest, and it also directs the
administrator to conduct a study to determine whether compliance with
these regulations is sufficient to avoid conflicts of interest. I look
forward to the results of that study as well as any swift action by
Congress to correct this problem if the study finds additional
protection for conflicts of interest is warranted.
  H.R. 3419 would establish a separate administration for Motor Carrier
Safety. I would prefer to transfer the OMC from the Federal Highway
Administration to the National Highway Traffic Safety Administration
(NHTSA) and avoid the creation of a separate modal administration.
NHTSA already issues regulations for newly manufactured trucks, and in
truck-car crashes 98 percent of the deaths are suffered by the
passenger vehicle occupants.
  Nevertheless, today we have taken an important step toward building
greater confidence in highway safety. The creation of a new
administration dedicated to safety is a new direction that I hope will
lead to improved safety for the traveling public.
  Mr. KERREY. Mr. President, I would like to rectify some information
entered into the Record during the debate on the Bankruptcy Reform Bill
on November 5, 1999.
  A comprehensive bankruptcy study was cited during the course of
debate. This study was conducted by Professors Marianne Culhane and
Michaela White from Creighton University, an impressive institution of
higher learning in my home State of Nebraska.
  When discussing this study, my colleague from Iowa referred to a GAO
Report that reviewed four different bankruptcy studies, including the
one written by Professors Culhane and White. It is my understanding
some comments were made indicating that GAO challenged the methodology
the Creighton professors used in conducting this study. After reviewing
the GAO Report, that was not my understanding. In fact, the GAO Report
specifically says, ``In our review, we found that the Creighton/ABI
researchers prepared and analyzed their data in a careful, thorough
manner.''
  In order to clarify the record and any misperceptions about the GAO's
findings, I ask unanimous consent the following ``Scope and
Methodology'' section of GAO Report, number 99-103 ``Personal
Bankruptcy: Analysis of Four Reports on Chapter 7 Debtors' Ability to
Pay'', be printed in the Record.
  There being no objection, the material was ordered to be printed in
the Record.

        GAO Report #99-103; Pages 5 and 6 Scope and Methodology

       To evaluate and compare the four reports' research
     methodologies, we assessed the strengths and limitations, if
     any, of each report's assumptions and methodology for
     determining debtors' ability to pay and the amount of debt
     that debtors could potentially repay. The comments and
     observations in this report are based on our review of the
     March 1998 and March 1999 Ernst & Young reports, the March
     1999 Creighton/ABI report, and the January 1999 EOUST report;
     some additional information we requested from each report's
     authors; independent analyses using the Creighton/ABI
     report's database; and our experience in research design and
     evaluation. We reviewed specific aspects of each report's
     methodology, including the proposed legislation on which the
     report was based, how the bankruptcy cases used in the
     analysis were selected, what types of assumptions were made
     about debtors' and their debt repayment ability, how debtors'
     income and allowable living expenses were determined, and
     whether appropriate data analysis techniques were used. We
     also assessed the similarities and differences in the
     methodologies used in the four reports.
       In addition to reviewing the reports, we had numerous
     contacts with the reports' authors. On March 16, 1999, we met
     with one of the authors of the Creighton/ABI report, and on
     March 25, 1999, we met with the authors of the two Ernst &
     Young reports to discuss our questions and observations about
     each report's methodology and assumptions. Following these
     discussions, we created a detailed description of each
     report's methodology (see app.I), which we sent to the
     authors of each report for review and comment. On the basis
     of the comments received, we amended our methodological
     descriptions as appropriate. The authors of the Creighton/ABI
     report responded to written questions we submitted. Ernst &
     Young, Creighton/ABI, and EOUST provided additional details
     on their methodologies and assumptions that were not fully
     described in their reports. We did not verify the accuracy of
     the data used in any of these reports back to the original
     documents filed with the bankruptcy courts. However, the
     Creighton/ABI authors provided us with a copy of the database
     used in their analysis. Ernst & Young declined to provide a
     copy of their database, citing VISA's proprietary interest in
     the data. (VISA U.S.A. and MasterCard International sponsored
     the Ernst & Young reports.) We received the EOUST report in
     early April and, because of time constraints, did not request
     the database for the report. We reviewed the Creighton/ABI
     data and performed some analyses of our own to verify the
     authors' categorization of data used in their analyses. In
     our review, we found that the Creighton/ABI researchers
     prepared and analyzed their data in a careful, thorough
     manner.
       The team that reviewed the reports included specialists in
     program evaluation, statistical sampling, and statistical
     analysis from our General Government Division's Design,
     Methodology, and Technical Assistance group. We did our work
     between February and May 1999 in Washington, D.C., in
     accordance with generally accepted government auditing
     standards. On May 18, 1999, we provided a draft of our report
     to Ernst & Young, the authors of the Creighton/ABI report,
     and EOUST for comment. Each provided written comments on the
     report. In addition, on May 28, 1999, we met with
     representatives from Ernst & Young to discuss their comments
     on the draft report. Ernst & Young and Creighton/ABI also
     separately provided technical comments on the report, which
     we have incorporated as appropriate. The Ernst & Young,
     Creighton/ABI, and EOUST written comments are summarized at
     the end of this letter and contained in appendixes III
     through V.

  Mr. McCAIN. Mr. President, just like the rest of our health care
delivery system, our nation's military health care delivery system
cries out for reform. While both systems are plagued with rising costs
and barriers to full access, the military health care delivery system
is facing some very unique challenges. I intend to submit the
``Contract With Our Service Members--Past and Present'' first thing
next session. A principal objective of this Contract will be military
health care reform.
  One of the critical challenges is how best to reconfigure the
military health care delivery system so that it might continue to meet
its military readiness and peace-time obligations at a time of
continuous change for our base and force structure.
  This is a challenge with which I have been grappling for some time.
In the process of deciding how to proceed, I have been meeting with,
and hearing from, many military family members, veterans and military
retirees from around the country. I was inundated with suggestions for
reform. In every meeting and every letter, I encountered retired
service men and women who have problems with every aspect of the
military medical care system--with long waiting periods, with access to
the right kind of care, with access to needed pharmaceutical drugs, and
with the broken promise of lifetime health care for military retirees
and their spouses. I heard these concerns expressed as I have traveled
across the United States over the past several months.
  One of the areas of greatest concern among military retirees and
their families is the ``broken promise'' of lifetime medical care,
especially for those over age 65.
  I believe grappling with these issues presents a great challenge and
demands our very best effort. Not lost on me is the urgent need to
address the over-age 65 issue since there are reportedly 1,000 World
War II and Korean veterans dying every day. It is imperative that as
changes are made to our nation's military force and continue to be made
in the future with regards to base structure, that Congress not only
stay fixated on bringing health care costs under control, but that
steps be taken

[[Page S15006]]

to retain the health care coverage so critical to our nation's active
duty personnel, their families, retirees, and survivors. While the
world situation necessitates a modified force and base structure
transformed for the new millennium, it should not carry with it an
abandonment of the responsibility that our nation has to assist those
who have served our country to obtain access to the health care
services they need.
  Make no mistake, retiree health care is a readiness issue, as well.
Today's servicemembers are acutely aware of retirees'
disenfranchisement from military health coverage, and exit surveys cite
this issue with increasing frequency as one of the factors in members'
decisions to leave service. In fact, a recent GAO study found that
``access to medical and dental care in retirement'' was the number five
career dissatisfier among active duty officers in retention-critical
specialties.
  Failure to keep health care commitments is hurting service recruiting
efforts as well. Traditionally, retirees have been the services' most
effective recruiters, and their children and those of family friends
have had a high propensity to serve. Unfortunately, increasing numbers
of retirees who have seen the government renege on its ``lifetime
health care'' promises have become reluctant to recommend service
careers to their family members and friends. Restoring their confidence
in their health care coverage will go a long way toward restoring this
invaluable recruiting resource.
  One of the reasons that Congress has not implemented meaningful
reform in the past is because of the cost of providing quality health
care. Although Congress has increased the President's defense budget
requests to attempt to meet our future needs, it has squandered
billions each year on projects the military did not request and does
not need. This year alone, Congress appropriated over $6 billion for
wasteful, unnecessary, and low-priority projects that have absolutely
no positive effect on preparing our military for future challenges.
  Congress also continues to refuse to close military bases that are
not essential to our security, permitting politics to outweigh military
readiness, at a cost to the taxpayer of nearly $7 billion each year. If
Congress would allow the Pentagon to privatize or consolidate depot and
base maintenance activities, savings of $2 billion each year could be
achieved. In addition, Congress refuses to eliminate anti-competitive
``Buy American'' restrictions, which could save almost $5.5 billion
annually on defense contracts.
  These common sense reforms alone would free up more than $20 billion
per year, which could be used to begin remedying our readiness
shortfalls and provide once-and-for-all a quality health care delivery
system for our aged military retirees.
  Additionally, most disgraceful is the fact that, while Congress
wastes taxpayer money on obsolete infrastructure, unneeded weapons
systems, and projects that have no meaningful value to the Armed
Forces, it simultaneously refuses to adequately pay the nearly 12,000
enlisted military personnel who are forced to subsist on food stamps.
  In October 1999, the Chairman of the Joint Chiefs of Staff and the
rest of the Joint Chiefs testified before the Senate Armed Services
Committee on the state of the military and universally declared the
year 2000 to be the year of health care reform. Although this was a
critical step for the senior uniformed military leadership to
acknowledge this thinking in their testimony to the Senate, it must not
become our military's Y2K problem and fall prey to election year
politics.
  On October 26, 1999 General Henry Shelton, Chairman of the Joint
Chiefs of Staff, testified before the Senate Committee on Armed
Services:
       Although we have done much over the past year to improve
     readiness, much more needs to be done to sustain the
     momentum. This year, for example, we intend to focus on
     another component that affects personnel readiness, the
     quality of our military medical system . . . . The Joint
     Chiefs are fully committed to supporting the Department of
     Defense efforts to improve both the fact and the perception
     of military health care for all the beneficiaries. Those who
     serve or have served proudly deserve quality care.

  One of the critical pieces of the last several years' laws on
military health care was the institution of several limited pilot
projects in Medicare subvention and FEHBP. As important as the select
locations was the cooperation that was achieved between several
agencies who were responsible for implementing the pilot project
legislation devised by the Republican Congress. These pilot projects
serve as important interim measures for health care reform and as a
valuable comparisons of the strengths and weaknesses of the military
health care delivery system. Moreover, valuable lessons can be learned
from comparing the current state of the military health care program
with those available in the private sector system that may have
applicability to the military system, to lay the groundwork for a more
comprehensive reform effort.
  The rush to implement military health care reform and the evaluation
of current health care delivery pilot projects must be balanced with
the need to provide critical health care to the over-65 military
retirees and their families. Their angst towards losing any minimal
health care they had from the time they retired to turning age-65 is
multiplied on their 65th birthday. If this is to be the year of
military health care, a key part of this effort must entail reassuring
these older retirees that the Department of Defense will no longer deny
or ignore their legitimate health care needs. By doing so, Congress
also will be taking an essential step to reassure today's
servicemembers that the government does, in fact, keep its recruiting
and retention promises concerning health care and other career service
benefits.
  The legislation that I am working on in the Senate would be the next
step down the road to meaningful reform of our Nation's military health
care delivery system. This legislation would offer the military retiree
and his family several health care delivery plans to choose from.
Having the choice to decide which health care plan works well is
important for two reasons. One to be able to control overall health
care reform costs and secondly, each retirees needs are different. Some
military retirees may not mind driving 100 miles to a military
treatment facility for health care as long as they have access to a
viable, quality pharmaceutical plan. Other military retirees and their
families may not be able to drive long distances for their primary
health care needs and instead require a health care delivery plan that
is much closer to their home. Another objective of this health care
reform plan, is that in the event of another base closure round, any
plan be portable and less dependent on any military hospital system.
  Some military retirees live near military installations and would be
happy to use military care if they only had access to it. Others who
live far from installations may be satisfied with the addition of a
relatively low-cost prescription drug benefit. Still others desperately
need full-coverage insurance such as FEHBP.
  I am working on another key health care bill with cosponsors
Representative Norwood from Georgia and Representative Shows from
Mississippi. I have worked closely with my dear friend and Medal of
Honor recipient, Colonel Bud Day, over the years and he has helped me
to understand how unfair our health care system is to our military
retirees and the governments' failure to keep its promise to them. I
believe that if we are to restore the credibility in our government we
must begin by keeping our promises to our men and women in uniform,
past and present.
  The health care reform plan that is enacted must also promote more
efficiency in the military health care system. Right now our military
health care system which offers limited health care benefits to those
over-age 65 retirees is operating $800 million in the red. There are
many efficiency practices that the beneficiaries have brought to my
attention that would improve the military health care delivery system
through: better billing practices, quality control of electronic forms
processing, regular surveys of military health care beneficiaries, and
bringing the various health care delivery systems under a single system
could save hundreds of millions of dollars.
  The federal government must not abandon the health care coverage
needs of our nation's military retirees, their families, and survivors.
I will continue

[[Page S15007]]

to work over the next couple of months with The Military Coalition and
The Military Veterans Alliance, representing nearly 10 million members,
to enact comprehensive reform of the military health care system, which
fulfills our obligation to our military retirees, and bolsters
retention and readiness among today's servicemembers by assuring them
that retention promises will be fulfilled once their active service is
over.
  Mr. President, next year will be, in the words of the Joint Chiefs,
the year of health care reform. I hope that my colleagues will join me
in supporting the ``Contract With Our Service Members--Past and
Present.'' A key objective of this Contract, legislation to reform our
military health care system, must be successful if Congress is to
restore the American people's faith in their government.
  Thank you and I yield the floor.
  Mr. REED. Mr. President, I would like to offer a few comments about
H.R. 1693, a bill to amend the Fair Labor Standards Act of 1938 (FLSA)
and clarify the overtime exemption for employees engaged in fire
protection activities.
  This bipartisan bill was passed on the House Suspension Calendar
without objection on November 4, 1999, and just passed the Senate under
a unanimous consent agreement.
  Generally, under the Fair Labor Standards Act, workers are entitled
to overtime compensation for hours worked in excess of 40 in a given
week. The FLSA contains an exemption for overtime, under Section 7(k),
for employees of public agencies who are engaged in fire protection
activities. This exemption allows employees engaged in fire protection
activities some flexibility in scheduling their work hours. It also
recognizes the extended periods of time that firefighters are often on
duty by allowing firefighters to work up to 212 hours within a period
of 28 consecutive days before triggering the overtime pay requirement.
  H.R. 1693 clarifies this firefighter exemption as it relates to
emergency medical personnel. This bill provides that paramedics who are
cross-trained/dual role firefighters, and work in a fire department and
have the responsibility to perform both fire fighting and emergency
medical services, be treated as firefighters for the purpose of Section
7(k) of the Fair Labor Standards Act. H.R. 1693 does not create a new
exemption from the FLSA, it merely clarifies the definition of
firefighter.
  Supported by the International Association of Fire Fighters and the
International Association of Fire Chiefs, H.R. 1693 ensures that
unreasonable burdens are not placed on fire departments when accounting
for hours worked. In effect, it elucidates the original intent of the
Section 7(k) provision of the FLSA, the provisions that apply to
firefighters who perform normal fire fighting duties, and hopefully the
Senate's passage of this clarification addresses the concerns of the
interested parties.
  Mr. KENNEDY. Mr. President, this legislation is necessary to resolve
the confusion in current law over whether firefighters who are also
trained as paramedics are covered by the exemption in section 7(k) of
the Fair Labor Standards Act.
  This bill defines ``employee engaged in fire protection activities''
to make clear that fire fighters who perform fire fighting duties are
covered by the exemption, regardless of the number of hours they spend
in responding to Emergency Medical Services calls. This legislation
restores the original intent of the 1986 law that created the section
exemption.
  Significantly, the legislation also states that in order to qualify
for the exemption, an employee must have the ``legal authority and
responsibility to engage in fire suppression.'' This phrase was added
for the express purpose of assuring that single-role emergency medical
personnel are not covered by the exemption. Simply sending paramedics
to the fire academy will not automatically bring them under the
exemption. Fire suppression must be an integral part of the
responsibilities for all employees covered by the exemption.
  Mr. COCHRAN. Mr. President, I am pleased to be a cosponsor and to
support the passage of the Deceptive Mail Prevention and Enforcement
Act, S. 335.
  I congratulate the distinguished Senator from Maine, Ms. Collins, for
her successful efforts to get this legislation adopted to curb
deceptive mailings. She has provided strong leadership and sound
guidance on this important issue. As Chair of the Permanent
Subcommittee on Investigations, Senator Collins has worked effectively
to examine the problems relating to sweepstakes and promotional
mailings and develop this legislation to strengthen our laws. I applaud
her work in crafting this bill and her continuing efforts to protect
consumers.
  The Deceptive Mail Prevention and Enforcement Act includes new
safeguards to protect consumers against misleading and dishonest
sweepstakes and other promotional mailings, including government look-
alike mailings. The bill grants additional investigative and
enforcement authority to the United States Postal Service to stop
unscrupulous mailings and establishes standards for all sweepstakes
mailings by requiring certain disclosures on each mail piece.
  This bill is an important step toward the prevention of deception in
sweepstakes and other promotional mailings. I compliment Senator
Collins on her efforts, and I am pleased to support the passage of the
Deceptive Mail Prevention and Enforcement Act.
  Mr. FITZGERALD. Mr. President, I am pleased that the Senate is
prepared to pass the Abraham Lincoln Bicentennial Commission Act of
1999. The year 2009 is the 200th anniversary of President Lincoln's
birth, and this measure would establish a commission to study and
recommend to the Congress activities that are appropriate to celebrate
that anniversary.
  It is most fitting that we make these arrangements to honor Abraham
Lincoln, one of our nation's wisest and most courageous former
Presidents, on the bicentennial of his birth. The son of a Kentucky
frontiersman, Abraham Lincoln was born on February 12, 1809 in a log
cabin. From these humble beginnings, he went on to become the sixteenth
President of the United States. Today, he is perhaps best remembered
for leading the Union through a turbulent Civil War and for issuing the
Emancipation Proclamation, which freed the nation's slaves.
  Few people have a greater appreciation for President Lincoln than the
residents of my home state of Illinois. President Lincoln spent about
eight years in the Illinois State Legislature, and he also represented
Illinois in the U.S. House of Representatives for a term. The only home
that Abraham Lincoln owned is located in Springfield, Illinois. Today,
people from all parts of the United States travel to Springfield to see
Abraham Lincoln's family home, tour the Old State Capital where Mr.
Lincoln said ``a house divided cannot stand,'' and visit his final
resting place in Springfield's Oak Ridge Cemetery.
  The Abraham Lincoln Bicentennial Commission Act, which originated in
the House of Representatives, provides for the establishment of a
national commission to recommend ``fitting and proper'' activities to
celebrate the bicentennial of Lincoln's birth. The commission would be
composed of fifteen members, including at least one person appointed by
the President on the recommendation of the Governor of Illinois.
  Congress created a similar commission in anticipation of the
centennial of Lincoln's birth in 1909. That year, this country
celebrated President Lincoln's birthday in a big way: Lincoln's image
appeared on a postage stamp, his birthday became a national holiday,
Congress passed legislation which led to the Lincoln Memorial's
construction, and the White House approved the minting of a Lincoln
penny. It is appropriate that we again prepare for the anniversary of
his birth by passing this measure to establish the Abraham Lincoln
Bicentennial Commission.
  I close by noting that the Abraham Lincoln Bicentennial Commission
Act of 1999 has tremendous support in both chambers of Congress. The
bill passed the House of Representatives by a vote of 411 to 2 last
month. The Senate version is the product of cooperation among Senators
Hatch, Leahy, Durbin and me. I also commend Judiciary Chairman Hatch,
ranking member Leahy, and their staffs for their efforts to help pass
this important bill.
  Mr. DODD. Mr. President, there are obviously many issues that one
might

[[Page S15008]]

discuss in the context of the omnibus spending bill that is currently
pending before the Senate. I would like to take a few moments to
mention two very important issues that have been included in the
pending legislation, the IMF debt initiative and payment of U.N.
arrears.
  I was extremely pleased that the House and Senate leadership were
able to reach agreement earlier this week with Secretary of Treasury
Larry Summers and other administration officials on legislative
language that will permit the IMF's historic debt relief initiative to
move forward. Just a few short days ago, it seemed unthinkable that the
Congress and the Executive would reach a compromise to permit the
United States to support the IMF debt initiative for highly indebted
poor nations around the globe before the end of this session of
Congress.
  The provisions contained in the pending legislation authorize U.S.
support for IMF participation in the international debt reduction
initiative by permitting the United States to vote for the immediate
non-market sale of the amount of gold necessary to generate profits of
$3.1 billion; permit the use of 64% of the interest earned on the
invested profits to be used for debt relief; authorize the U.S. share
of a special reserve account at the IMF to also be used for debt relief
purposes, and appropriate $123 million for FY 2000 bilateral U.S. debt
reduction programs that will be undertaken in conjunction with the
international debt initiative.
  With the enactment of this bill into law, the United States will be
able to make a major step forward toward achieving the commitments made
by President Clinton and other so called G-7 heads of state at this
year's Cologne Summit. Among other things, this will enable the IMF,
for the first time, to utilize its own resources to participate in
international efforts to reduce the mounting debt burden that has been
a yoke around the necks of the most impoverished nations of the world--
countries which are home to nearly half a billion people. With this
debt relief and the economic reforms that will be an integral part of
the IMF's multilateral initiative, the poorest countries in Africa and
Latin America can now approach the next millennium with prospects for a
brighter future. I am extremely pleased that bipartisanship ultimately
won the day during negotiations of this important issue.
  Another important issue with major international implications has
also finally been successfully resolved, namely the authorization and
appropriation of $926 million in long overdue U.S. payments to the
United Nations. While I would have preferred to see this issue treated
on its own merits, rather than linked to restrictions on bilateral
funding for family planning programs of foreign private and
international population organizations, at least this issue has been
finally resolved, and the United States will not lose its vote at the
United Nations.
  I believe that extremist elements in the Congress jeopardized United
States national security and foreign policy interests by holding up our
payments to the UN for more than three years. They held this money
hostage to the unrelated issue of international population programs. I
am not happy with the compromise that had to be agreed to in order to
resolve this issue. It is un-American in my view to legislatively seek
to limit the free speech of foreign non-governmental organizations with
respect to local family planning laws as a condition for receiving
United States funding for their important family planning programs.
Were I to have had the opportunity to vote on this language as a free
standing amendment I would have certainly voted against it, as would a
majority of the Senate. Unfortunately, because it has been included in
the omnibus conference report we do not have that option. We must
balance our distaste for this provision against the many positive
programs that will be funded, including UN arrears, once this bill
becomes law. Having done so, I will vote in favor of the pending
legislation.
  Mr. President, the IMF, the United Nations and its related
specialized organizations--UNICEF, the International Labor
Organization, the World Health Organization, the Commission for Human
Rights el al.--have a daily impact of the lives of the world's people--
and it is an impact for the better. Without doubt, these international
organizations further United States national security and foreign
policy interests through their programs and initiatives.
Representatives of the United Nations are on the ground in the far
comers of the world--in East Timor, Kosovo, Haiti, and Iraq to mention
but a few ongoing missions of the United Nations. The United States is
able to maximize its interests and advance its foreign policy agenda at
much lower cost thanks to our participation in this important
international organization.
  There are clearly many reasons for voting to support this spending
bill, despite its many flaws. The IMF Debt Relief Initiative and
payment of UN arrears are two of the more compelling ones in my
opinion. I urge my colleagues to support this bill when it comes to a
vote later today.
  Mr. LOTT. Mr. President, today, the United States Senate unanimously
passed much needed legislation to protect some of America's most
threatened historic sites, the Vicksburg Campaign Trail and the Corinth
battlefield.
  S. 710, the Vicksburg Campaign Trail Battlefields Preservation Act of
1999, is a bipartisan measure that authorizes a feasibility study on
the preservation of Civil War battlefields and related sites in the
four states along the Vicksburg Campaign Trail.
  As my colleagues know, Vicksburg served as a gateway to the
Mississippi River during the Civil War. The eighteen month campaign for
the ``Gibraltar of the Confederacy'' included over 100,000 soldiers and
involved a number of skirmishes and major battles in Mississippi,
Arkansas, Louisiana, and Tennessee.
  The Mississippi Heritage Trust and the National Trust for Historic
Preservation named the Vicksburg Campaign Trail as being among the most
threatened sites in the state and the nation.
  S. 710 would begin the process of preserving the important landmarks
in the four state region that warrant further protection. I appreciate
the cosponsorship of Chairman Murkowski, Chairman Thomas, and Senators
Landrieu, Breaux, Cochran, Hutchinson, and Craig on this measure.
  Mr. President, the Senate also approved S.1117, the Corinth
Battlefield Preservation Act of 1999, a measure that establishes the
Corinth Unit of the Shiloh National Military Park.
  The battle of Shiloh was actually part of the Union Army's overall
effort to seize Corinth. This small town was important to both the
Confederacy and the Union. Corinth's railway was vitally important to
both sides as it served as a gateway for moving troops and supplies
north and south, east and west. The overall campaign led to some of the
bloodiest battles in the Western Theater. In an effort to protect the
city, Southern forces built a series of earthworks and fortifications,
many of which remain, at least for now, in pristine condition.
Unfortunately, the National Park Service in its Profiles of America's
Most Threatened Civil War Battlefields, concluded that many of the
sites associated with the siege of Corinth are threatened.
  S. 1117 would give Corinth its proper place in American history by
formally linking the city's battlefield sites with the Shiloh National
Military Park.
  Mr. President, I want to thank Senators Robb, Cochran, and Jeffords
for cosponsoring this measure.
  I would also like to express my appreciation to Chairman Thomas for
his ever vigilant efforts on parks legislation, and in particular, for
moving both the Vicksburg Campaign Trail and Corinth battlefield bills
forward.
  I would also like to take this opportunity to recognize Chairman
Murkowski for his continued stewardship over the Senate Energy and
Natural Resources Committee.
  Mr. President, I also want to recognize Ken P'Pool, Deputy State
Historic Preservation Officer for Mississippi; Rosemary Williams,
Chairman of the Siege and Battle of Corinth Commission; John Sullivan,
President of the Friends of the Vicksburg Campaign and Historic Trail;
and Terry Winschel and Woody Harrell of the United States Park Service
for their support and guidance on these important preservation
measures.
  Lastly, I would like to recognize several staff members including
Randy Turner, Jim O'Toole, and Andrew Lundquist from the Senate Energy

[[Page S15009]]

Committee, Darcie Tomasallo from Senate Legislative Counsel, and Stan
Harris, Angel Campbell, Steven Wall, Jim Sartucci, and Steven Apicella
from my office, for their efforts to preserve Mississippi's and
America's historic resources.
  Mr. President, as a result of the Senate's action today, our children
will be better able to understand and appreciate the full historic,
social, cultural, and economic impact of the Vicksburg Campaign Trail
and the Siege and Battle of Corinth.
  Mr. SESSIONS. Mr. President, I rise to ask my colleagues to join
Senator Jeffords and me in supporting the enactment of the pending bill
which clarifies the status of church welfare plans under state
insurance law. These plans provide health and other benefits to
ministers and lay workers at churches and church-controlled
institutions. It is estimated that more than 1 million individuals rely
on these programs for their health benefits.
  Today, the status of these programs under state insurance laws is
uncertain. This legislation merely provides that church welfare plans
are not engaged in the business of insurance for purposes of state
insurance laws that relate to licensing, solvency, or insolvency.
  In addition, this legislation clarifies that a church plan is single
employer plan for purposes of applying state insurance laws. The
language in the bill is intended to eliminate concerns by network
providers and insurance companies about the legal status of a church
plan under state insurance law. By enacting this legislation, networks
and insurance companies otherwise doing business in a state will be
able to offer to church plans the same services they offer to corporate
benefit programs.
  Mr. President, I first became aware of the need for this legislation
when I heard from Bishop Morris from my own state of Alabama. He
explained that too frequently church plans are denied access to network
providers that offer discounted rates. He also explained that from
time-to-time questions arise about the legal right of church plans to
provide coverage under state insurance law. He asked me to look into
what I could do help clarify the legal status of health plans
maintained by churches and synagogues. It seemed like a reasonable
request since Congress has authorized churches to maintain
denominational benefit programs. However, this is also a technical area
of the law that involves constitutional issues of separation of church
and state. It also involves technical issues regarding insurance and
benefit laws.
  This legislation has been carefully crafted with the help of the
church benefits community represented by the Church Alliance, a
coalition of more than 30 denominational benefit programs. While they
may differ on questions of theology, it is obvious that they are united
in their efforts to serve those who serve their respective churches and
synagogues. I also want to commend the National Association of
Insurance Commissioners for their assistance in helping to work out the
language of this bill. It is obvious that State Insurance Commissioners
respect the right of churches to maintain benefit programs that serve
clergy and lay workers.
  Mr. President, churches should be commended for the commitment they
have demonstrated, in some cases for more than a hundred years, to
offer comprehensive benefit programs to their employees. These programs
have many unique design and structural features reflecting the fact
that they are maintained by denominations. As we consider health care
legislation in Congress, I believe that it is important for all of us
to recognize these unique features and to be mindful of the important
role these church-maintained programs perform within their respective
churches.
  In order to give my colleagues and the public a better understanding
of this legislation, I ask unanimous consent that a section-by-section
of the bill appear immediately after my remarks.
  Mr. President, on behalf of ministers, rabbis, and church lay workers
across this country who receive benefit coverage from church plans, I
urge passage of this legislation.

 Clarification of Church Welfare Plan Status Under State Insurance Law

       Section 1 provides a statement of purpose. This section
     provides that the only purpose of this Act is to clarify the
     status of church welfare plans under certain specified state
     insurance law requirements and the status of a church welfare
     plan as a plan sponsored by a single employer. This Act
     clarified the status of church plans under state law. It also
     addresses the problem of health insurance issuers refusing to
     do business with church plans because of concern that church
     plans could be classified as unlicensed entities.
       Subsection 2(a) provides that a church welfare plan is
     deemed to be sponsored by a single employer that does not
     engage in the business of insurance for the purposes of state
     insurance laws described in subsection (b). This subsection
     permits network providers and insurance companies to
     establish the same contractual relationships with a church
     plan as they are allowed to establish with any single
     employer plan covered under the Employee Retirement Income
     Security Act (ERISA) in such state.
       Subsection 2(b) describes state insurance laws that (1)
     would require a church welfare plan or an entity that can
     administer or fund such a plan (only to the extent that it
     engages in such activity) to be licensed; or (2) relate to
     solvency or insolvency (including participation in guaranty
     funds and associations). For example, state insurance laws
     that impose reserve requirements or require posting of
     security would be described in this subsection. Similarly the
     plan is deemed to satisfy the licensing requirements of state
     insurance law.
       Subsection 2(c)(1) defines the term ``church plan.''
       Subsection 2(c)(2) defines the term ``reimburses costs from
     general church assets.'' The affect of this definition is to
     provide that church welfare plans are not engaging in the
     business of insurance for certain state insurance law
     provisions otherwise described in this subsection 2(b).
       Subsection 2(c)(3) defines the term ``welfare plan.'' This
     subsection clarifies that the term ``welfare plan'' only
     includes church plans and does not include HMOs, health
     insurance issuers and other entities doing business with
     church plans or organizations sponsoring or maintaining the
     plan.
       Subsection 2(d) provides that while the Act exempts church
     welfare plans from state licensing requirements, states
     preserve authority to enforce state insurance law provisions
     that remain applicable to church plans. This subsection deems
     welfare plans to be licensed for purposes of all other
     insurance laws not specifically excluded in subsection 2(b).
     This subsection is necessary because under some state
     insurance laws, only entities that are actually licensed can
     be subject to enforcement action under any provision of such
     law.
       Subsection 2(e) provides that while subsections (a) and (b)
     deem that a church plan reimburses costs or provides
     insurance from general church assets for the purpose of
     determining its status under certain state insurance laws,
     the rights of plan participants and beneficiaries, including
     those who actually make plan contributions, are not otherwise
     affected by the application of section 2.

  Mr. GRAHAM. Mr. President, I ask unanimous consent that the following
newspaper article appear in the Record following my statement on H.R.
1180, Work Incentives/Tax Extenders Conference Report.

                [From the New York Times, Nov. 12, 1999]

                   A Budget Too Flush To Fight About

                          (By Alice M. Rivlin)

       Washington--The United States political system, arguably
     the most effective in the world, has an uncanny penchant for
     making its successes look like failures. The wrangling now
     going on in Washington over the federal budget is an ugly,
     confusing spectacle--long on finger-pointing and gotcha
     moves, short on conciliation and statesmanship. As the
     vetoes, gimmickry and accusations of ``raiding Social
     Security'' fly up and down Pennsylvania Avenue, it is hard to
     remember that the battle is over marginal adjustments in an
     increasingly responsible fiscal policy.
       The federal budget is already in substantial surplus--
     revenues exceeded expenditures by about $120 billion in the
     fiscal year 1999, which would have seemed like a miracle only
     a few years ago--and the public, polls indicate, is pushing
     politicians to raise the bar. The new goal, harder but
     entirely appropriate, is an even bigger surplus, sufficient
     to reduce the debt and help the economy prepare for the rapid
     aging of the population.
       Acrimony over small changes in a successfully balanced
     budget is a welcome change from the 1980's, when there was so
     much more to be acrimonious about. The huge deficits of that
     decade were clear evidence of policy failure.
       The stunning success of this decade began when President
     George Bush and the leaders of Congress hammered out an
     agreement in 1990 that raised some taxes and set explicit
     caps on future discretionary spending. The effect was not
     immediately apparent because the recession the next year cut
     revenues, but the ground-work for a falling deficit had been
     laid.
       The goal of President Clinton's budget plan in 1993,
     extended the caps and raised some taxes, was to cut the
     deficit in half in four years. The deficit for the fiscal
     year 1992 was $290 billion--a $50 billion surplus in Social
     Security, offset by a $340 billion deficit in the rest of the
     budget. No one thought that

[[Page S15010]]

     getting to overall balance was a goal realistic enough to
     talk about, let alone reaching balance without counting the
     Social Security surplus.
       But now that the overall budget has been balanced for two
     years, it's time to follow the public's leaning and adopt the
     more ambitious objective of balancing the budget without
     counting the Social Security surplus.
       Paradoxically, although this raising of the bar is highly
     desirable, the reasons have little to do with Social
     Security.
       Two or three decades from now, we will have a much higher
     ratio of retirees to workers, and the standard of living of
     both groups will depend on making the economy grow faster, so
     more goods and services are available to be consumed by
     everyone. Running a larger government surplus would help the
     economy grow. It would reduce the national debt, put downward
     pressure on interest rates and encourage new investment.
       It doesn't matter much whether the surplus is in the Social
     Security fund or the rest of the budget; it is the debt
     reduction that helps the economy grow. Explaining the raising
     of the bar as ``not spending the Social Security surplus'' is
     a convenient way of suggesting a connection between the aging
     of the population and the need for growth. But the current
     budget debate does not affect the status of the Social
     Security fund or the rights of beneficiaries in any way.
     That's a debate for another (post-election) day.
       If political discourse were more civil, Congress and the
     president would have settled their differences over the
     fiscal year 2000 budget long before now, probably by enacting
     modest increases in the spending caps and celebrating the
     fact that the surplus is larger than anyone expected. Then
     they would have gone on to explain why an even bigger surplus
     would be a good thing for future growth.
       A growing surplus can only be achieved by restraining
     spending growth and avoiding a major tax cut. A tax cut would
     hurt prospects for economic growth by encouraging more
     consumer spending and forcing the Federal Reserve to raise
     interest rates to avoid inflation.
       With any luck, the new budget will be wrapped up in a few
     days and Congress will go on to other business. The public
     will breathe a small sigh of relief but will not realize that
     it ought to be celebrating.
       The good news is that the budget surplus is growing, no
     significant tax cut is being considered, and politicians are
     beginning to notice that the public wants them to act
     responsibly for the long term and reduce the federal debt.
       That's a lot of good news. It's a shame the process is so
     ugly.

                          noaa vessel rainier

  Mr. STEVENS. Mr. President, during the last month of negotiations on
the FY00 Commerce, Justice, State Appropriations conference report,
there has been much discussion between the Alaska delegation and
Commerce Department officials regarding where to homeport the Rainier.
The Rainier is one of four hydrographic survey vessels currently
homeported in Seattle. However, the Rainier spends nearly all of its
time performing hydrographic surveys in Southeast Alaska, where the
need for hydrographic surveys is great. Substantial amounts of time and
money are wasted every time the Rainier transits the 650 miles between
Seattle and Southeast Alaska.
  Alaska has more than half of the United States' coastline, and no
State is more dependent on marine transportation. Nonetheless, most of
southeast Alaska lacks adequate hydrographic surveys. In fact, more
than half of NOAA's critical backlog of survey areas is in Alaska. Much
of that backlog is in southeast Alaska, where three cruise ships ran
aground this summer. These ships ran aground in critical backlog areas
and other areas that are literally not on the map. New coastline opens
up every time a receding glacier creates a new inlet, giving vessels
access to totally uncharted waters.
  Chairman Young of the House Resources Committee met personally with
Commerce Secretary Daley on this issue recently. The Secretary agreed
that Alaska was an appropriate home for the Rainier. The city of
Ketchikan has offered to make space available for the Rainier and to
provide $300,000 cash to offset the one-time cost of the move. Moving
this vessel to Ketchikan makes good fiscal sense and good policy sense.
I urge the Secretary to relocate the Rainier to Ketchikan at once.

                         pacific salmon treaty

  Mr. STEVENS. Mr. President, as Chairman of the Senate Appropriations
Committee, I would like to explain the provisions relating to Pacific
salmon and the Pacific Salmon Treaty included in the conference report
for the fiscal year 2000 Commerce, State, Justice Appropriations bill.
The conference report provides funding to implement the 1999 Pacific
Salmon Treaty Agreement between the United States and Canada and for
Pacific coastal salmon recovery efforts in Alaska, Washington, Oregon,
and California. Section 623 of the conference report authorizes this
funding and addresses other issues which are critical to the success of
the 1999 Pacific Salmon Treaty Agreement.
  Section 623(a) establishes the Northern Boundary and Transboundary
Rivers Restoration and Enhancement Fund and the Southern Boundary
Restoration and Enhancement Fund. The 1999 Agreement requires the
United States to capitalize these two funds at $75,000,000 and
$65,000,000, respectively, over the next 4 years. Interest earned from
these funds will be spent each year to develop better information to
support resource management, to rehabilitate and restore marine and
freshwater habitat, and to enhance wild stock production. This
investment will complement a C$400,000,000 Canadian investment in
habitat restoration and license buyback programs.
  Each fund will be managed by a bilateral committee of three United
States and three Canadian representatives. Appropriately, the three
United States representatives on the Northern Fund Committee are
Alaskans: Alaska's Commissioner and Deputy Commissioner to the Pacific
Salmon Commission and the Regional Administrator of the Alaska Region
of the National Marine Fisheries Service. Likewise, the three United
States representatives on the Southern Fund Committee are from the
Lower 48: one representative of the States of Washington and Oregon;
one representative of the treaty Indian tribes; and the Regional
Administrator of the Northwest Region of the National Marine Fisheries
Service. I expect that the Northern Fund Committee will consult with
the Northern Panel of the Pacific Salmon Commission on funding
proposals prior to making its decisions. Likewise, the Southern Fund
Committee should consult with the Southern Panel.
  Section 623(b) implements the 1999 Agreement by addressing several
conditions to that agreement. First, it provides that the $20,000,000
appropriated to capitalize the Northern Fund and the Southern Fund will
not be made available until two events occur. First, the parties to the
Boldt-related litigation must be sign and file stipulations staying
that litigation for the duration of the 1999 Agreement. Second, the
Secretary of Commerce must determine that the conduct of Alaska's
fisheries under the 1999 Agreement, without further clarification or
modification of the management regimes contained in the 1999 Agreement,
do not cause jeopardy to salmon species listed under the Endangered
Species Act. If the Secretary of Commerce requires alterations,
modifications, or any other changes to the fishery management regimes
contained in the Treaty, this condition is not satisfied.
  The 1999 Agreement is expressly conditioned on both of these
requirements being met. The document titled ``Understanding of United
States Negotiators,'' signed June 22, 1999, by eight United States
negotiators, describes the stipulations to be filed, extended, or
otherwise addressed for the duration of the 1999 Agreement. Similarly,
the transmittal letter which accompanied the 1999 Agreement, signed
June 23, 1999 by the Chief Negotiators for the United States and
Canada, states that the 1999 agreement is conditioned on whether the
conduct of Alaska's fisheries under the Treaty violates the Endangered
Species Act. It is important to note that Congress has every reason to
believe Alaska's fisheries do not cause jeopardy to listed salmon
stocks. Alaska's fisheries operated under a ``no jeopardy'' finding
before our fishermen gave up 25 percent of their Chinook catch in order
to get a deal on the 1999 Agreement. To address process concerns, this
subsection requires the parties to request that the court enter the
stipulations before the end of the year, and that the court enter the
stipulations by March 1, 2000.
  Sections 623(b)(3) and 623(b)(4) specify conditions under which the
Secretary of Commerce may ``initiate or reinitiate'' consultation on
Alaska Fisheries under the Endangered Species Act. Subsections (b)(3)
and (b)(4) address any consultation on Alaska fisheries which is
commenced after the initial consultation required in subsection (b)(1).
By using the words ``initiate or

[[Page S15011]]

reinitiate,'' Congress has addressed both those species which are
currently listed under the Endangered Species Act as well as any
species listed under ESA in the future. Therefore, before the Secretary
of Commerce may initiate consultation on any listed species, including
any species listed after this Act has passed, and before the Secretary
may reinitiate a previously conducted consultation, the conditions in
subsections (b)(3) and (b)(4) of section 623 must be met.

  Section 623(b)(3) requires the Secretary of Commerce to issue a
jeopardy determination on Southern United States fisheries before he
may initiate or reinitiate consultation on Alaska fisheries. Section
623(b) defines Southern United States fisheries as the directed Pacific
salmon fisheries in Washington, Oregon, and the Snake River basin of
Idaho that are subject to the Pacific Salmon Treaty. Subsection (b)(3)
will also require the Secretary to develop the maximum sustainable
yield (MSY) data or other escapement data necessary to make such a
determination. The Secretary should work with the Pacific Salmon
Commission to develop this information.
  Section 623(b)(4) requires the Secretary of Commerce to provide the
Pacific Salmon Commission a reasonable opportunity to implement the
1999 Agreement including, if necessary, the weak stock provisions in
the 1999 Agreement, and to make a determination that the 1999 Agreement
will not meet MSY goals before he may initiate or reinitiate
consultation on Alaska fisheries under ESA. The phrase ``reasonable
opportunity'' is intended to provide sufficient time for the 1999
Agreement to work. If the Pacific Salmon Commission implements the weak
stock provisions, the phrase ``reasonable opportunity'' is intended to
provide sufficient time for the weak stock provisions to work as well.
A reasonable opportunity will encompass several life cycles of the
salmon under consideration.
  Subsection (b)(4) purposefully adopts the recovery standard contained
in the Pacific Salmon Treaty. This standard requires that the weak
stock provisions return escapements as expeditiously as possible to
maximum sustainable yield or other biologically-based escapement
objectives agreed to by the Pacific Salmon Commission. This subsection
recognizes that conservation is the foremost tenet of the Pacific
Salmon Treaty. The Treaty also recognizes the importance of the salmon
fisheries to the social, cultural, and economic well-being of the West
Coast. Therefore, the Treaty seeks to satisfy its conservation
objective with minimum disruption to the commercial, tribal, and sport
fisheries. Recognizing these, objectives, the determination of whether
escapement objectives have been met as expeditiously as possible must
be made over a reasonable period of time, likely encompassing several
life cycles of the salmon species under consideration.
  The most important feature of this law is that it requires the
Secretary to delay the enforcement of the Endangered Species Act until
the Pacific Salmon Commission has an opportunity to implement the
Treaty and, if necessary, the weak stock provisions of the Treaty. This
later-enacted law relieves the Secretary of his duty to apply the
Endangered Species Act during the time the Commission is implementing
the Treaty and the weak stock provisions. This is important because the
Commission is better able to recover weak stocks using the Treaty than
is the Secretary using the Endangered Species Act. The Commission can
require harvest restrictions in Canada, where up to half of the
coastwide Chinook harvest is caught. Unlike the Pacific Salmon Treaty,
the Endangered Species Act does not apply in Canada. Subsection (b)(4)
recognizes the important role the Pacific Salmon Commission should play
in the recovery of weak stocks by ensuring that the Commission has the
opportunity to fully implement the weak stock provisions of the Pacific
Salmon Treaty.
  Section 623(c) makes needed changes to the voting structure of the
Pacific Salmon Commission. The Pacific Salmon Treaty Act of 1985
required the three voting United States Commissioners to reach
unanimous agreement before making a decision on behalf of the United
States. This requirement was put in place without knowing how
disruptive it would prove to subsequent negotiations. In practice, it
has allowed Canadian negotiators to leverage northern and southern U.S.
interest against each other. Subsection (c) prevents this unintended
consequence by providing that the southern U.S. interests represent the
United States on southern fisheries and Alaska represents the United
States on northern fisheries. In fact, the 1999 Agreement itself did
not take shape until Alaska and Canada were able to negotiate northern
fisheries issues without interference from southern interests. Chinook
salmon, which can migrate through northern and southern jurisdictions,
are exempt from this provision.
  Section 623(d) authorizes $20,000,000 total to capitalize the
Northern Fund and the Southern Fund. To meet a condition of the 1999
Agreement, these amounts will not be released until stipulations have
been signed and court orders requested in certain litigation involving
the application of tribal fishing rights. Subsection (d) also
authorizes $58,000,000 for salmon recovery efforts in Alaska,
Washington, Oregon, and California. Amounts appropriated to the four
States are subject to a 25 percent non-federal match requirement.
States may meet this requirement with cash or other in-kind
contributions supported by existing state funding.
  I understand Washington State and Oregon will use their shares of
this funding to address the significant habitat issues they face in
those States. Alaska has neither enjoyed the benefits nor suffered the
consequence of extensive development inside its borders, although some
would say that we have suffered the consequences of development
elsewhere through the harvest restrictions our fishermen have endured
over the years. I expect that in addition to habitat restoration,
Alaska will participate in other programs consistent with Treaty
implementation, such as marketing initiatives. Alaska also has the
authority to participate in salmon initiatives in other States and on
tribal, lands. Many of the tribes will likely use their funding to
participate in demonstration projects on supplementation including the
use of Mitchell Act hatcheries to increase production of wild stocks. A
close analysis of NMFS's artificial propagation policy may lead to
different policies which help meet the recovery goals outlined in the
Pacific Salmon Treaty. I look forward to the results of the States and
tribal efforts.
  Mr. DORGAN. Mr. President, one of the bills that will pass today as
part of an Energy and Natural Resources Committee package is S. 769,
which provides a final settlement on certain debts owed by the city of
Dickinson, North Dakota to the Bureau of Reclamation. The legislation,
which was introduced by Senator Kent Conrad and myself, is virtually
identical to that introduced during the last Congress.
  The Dickinson Dam Bascule Gates Settlement Act (S. 769) will afford
long overdue relief to the citizens of Dickinson. Let me briefly
explain why the debt liquidation is needed and appropriate. For one
thing, the Bureau of Reclamation built a faulty project. The debt was
incurred by the city of Dickinson for construction of a dam with gate
structures which never worked properly. In addition, the need for the
bascule gates as regulating structures to help provide a reliable local
water supply was eclipsed by the construction of the Southwest
Pipeline. The pipeline is part of the Garrison Diversion Project which
is managed by the same Bureau of Reclamation.
  Consequently, it makes no sense for the city of Dickinson to have two
water supply systems when it needs only one--especially when the first
system was a faulty one. The city has already repaid more than $1.2
million for the bascule gates, even though they now provide virtually
no benefit to the city.
  The legislation itself is actually quite simple. It would permit the
Secretary of the Interior to accept one final payment of $300,000 from
the city of Dickinson in place of a series of payments, totaling about
$1.5 million, required by city's current repayment contract. The final
payment may be adjusted for payments made after June 2, 1998.
  The bill also clarifies that the city of Dickinson will be
responsible for up to

[[Page S15012]]

$15,000 in annual operation and maintenance (O&M) costs. This amount
represents the average costs for O&M on the gate structures over the
past 15 years. The bill as introduced was not explicit on this point
and Senator Conrad and I have worked with the Energy Committee on an
amendment that is part of the reported bill.
  I want to thank Chairman Frank Murkowski, Ranking Member Jeff
Bingaman, Subcommittee Chairman Gordon Smith, and their staffs for
their cooperation and assistance. I also want to underscore the
leadership of Senator Conrad in developing this legislation and the
excellent work of his Deputy Legislative Director, Kirk Johnson. May I
also commend Dickinson Mayor Fred Gengler and City Administrator Greg
Sund for their help and persistence in seeking a fair resolution to
this matter.

                       TECHNICAL EDIT TO H.R. 486

  Mr. BURNS. Mr. President, as the prime sponsor of S. 1547, the Senate
companion bill to H.R. 486, I would like to make remarks on a technical
edit to H.R. 486. I believe Sec. 3(f)(1) of Sec. 5008 needs some
clarification. Subsection (1)(D) states very clearly that the
``Commission shall act to preserve the contours of low-power television
licensees pending the final resolution of a class A application.'' The
Commission's function to preserve the protected contours is very clear.
But creating separate subsections for the certification and application
processes may have created some uncertainty regarding the timing of
when the Commission should begin to provide this protection. I want to
assure my colleagues that I agree with the prime sponsors of H.R. 486
that the front-end certification process is an integral first step in
the application process. It is clearly our intent that as soon as the
Commission is in receipt of an acceptable certification notice, it
should protect the contours of this station until final resolution of
that application. Of course, this provision does not exempt licensees
from other provision of this act.
  Thank you, Mr. President.
  Mr. HELMS. Mr. President, for those who may wonder why H.R. 3427,
which was deemed enacted as a separate law in H.R. 3194, the D.C.
Appropriations bill is called the ``Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act for 2000 and 2001,'' it is
because of our love, affection and respect for Admiral Bud Nance and
Meg Donovan.
  Bud Nance was Chief of Staff of the Foreign Relations Committee until
he passed away on May 11.
  Bud served his country his entire adult life--as an ensign aboard the
USS North Carolina in the Pacific Theater during World War II and later
as a test pilot and fighter pilot. Among his many honors, he earned two
Distinguished Service Medals and capped off his distinguished 38-year
navy career as skipper of the aircraft carrier USS Forrestal.
  Bud went on to serve as President Ronald Reagan's Deputy National
Security Advisor. And at my request in 1991 Bud became minority staff
director for the Foreign Relations Committee. From January 1995 until
his passing in May, he served as Chief of Staff for the majority. Bud
refused to take the job until I agreed that he would not take a
paycheck. Bud said that his country had been good to him and this was
how he could give something back to his country.
  Bud was my lifelong friend. We were born two months apart, two blocks
apart in the little town of Monroe, North Carolina. I miss my friend;
it was a blessing to know him.
  I am pleased that the House and the Senate agreed to recognize Bud
and his influence on this bill, which was the last bill on which he had
the opportunity to work. In addition, Meg Donovan has been added to the
bill's name. I know Bud would have been honored to share this bill with
Meg for whom he had a deep affection.
  Like Bud, Meg Donovan, who died at age 47 of cancer last October, had
spent much of her life in government service and international affairs.
She served as the Deputy Assistant Secretary for Legislative Affairs at
the State Department at the time of her death, and before that was a
longtime House International Relations Committee staff member.
  Meg worked closely with the Senate on the confirmation of key foreign
affairs nominations, including those of Secretary of State Warren
Christopher, and later, Madeleine K. Albright. In the Congress, she
worked primarily on issues dealing with political and religious
dissidents, minorities and other persecuted groups, including Tibetans,
Soviet Jews and women.
  Both Bud and Meg are missed by the staffs of the Senate Foreign
Relations Committee and the House International Relations Committee,
and by me and countless others, all of whom are pleased that this
legislation bears the names of these two fine Americans.
  Mr. L. CHAFEE. Mr. President, I rise today to express my support for
the extension of the Northeast Dairy Compact. I also wish to commend my
colleagues from New England for all of their hard work on this issue.
Senators Jeffords, Specter, Leahy, and others all have worked
diligently to protect the dairy farmers in our region. I thank them for
their efforts.
  As my colleagues know, the Northeast Dairy Compact was approved by
Congress in 1996 as a part of the Freedom to Farm bill. It was
implemented after the Secretary of Agriculture found that there was a
``compelling public interest'' for its creation.
  A state-generated response to the decline in the New England dairy
industry over the last decade, the Dairy Compact has preserved local
milk supplies for the Northeast. In 1978, there were 6,439 dairy farms
in New England. By 1992, the number of dairy farms fell to 3,974.
During this same time, the number of dairy farms in my home state fell
from 93 to 41--a 60 percent decrease. As I stand here today, there are
only 30 dairy farms remaining. 93 to 30. This certainly is an alarming
number.
  Why is this alarming? Dairy farms are the essence of New England--
independent and hard working--the very symbol of our region. They are
not in far away rural areas such as those in other parts of the
country. Most are close to fast growing areas which are ripe for
development. It would be very easy for any one of our local dairy
farmers to sell their land to area developers and settle for an easier
lifestyle.
  In New England, we value the contributions of our dairy farmers. As
areas feel the pressure of population growth, and the resulting stress
on the environment, it becomes more and more important to support dairy
farming and the benefits we all reap from their existence. We do not
want to see them disappear. To have them extinguished from the New
England countryside would be the equivalent of the Liberty Bell leaving
Pennsylvania, the Statue of Liberty leaving New York, and Mount
Rushmore being torn down for townhomes in South Dakota.
  The Northeast Dairy Compact works. It is only fitting that we are
here today to extend its existence. To do otherwise would jeopardize
the progress that has been made to preserve our lands and the farming
economy in New England.
  Again, I thank my colleagues for their attention, and I yield the
floor.
  Mr. ROBB. Mr. President, I'd like to commend the efforts of those of
my colleagues who joined in the effort to make an important change to
the Satellite Home Viewer Improvement Act of 1999. As initially
drafted, the conference report on H.R. 1554 caused many of us great
concern because it included two provisions which could have
discriminated against Internet and broadband service providers by
expressly and permanently excluding any ``online digital communication
service'' from retransmitting a television signal or other audiovisual
work pursuant to a compulsory or statutory license. Like many of my
colleagues, I was deeply concerned that in the race to adjourn,
Congress would neglect to fix these potentially damaging provisions.
  Under the agreement which has been reached on this bill, these
provisions have been deleted. This was the right thing to do: these two
provisions had been added to the conference report late in the process,
after agreement had been reached on the fundamental parameters of the
bill, and without any public debate. Now that the provisions have been
removed, the committees of jurisdiction will have an opportunity to
consider the proper application of the compulsory and statutory
licensing

[[Page S15013]]

provisions of the Copyright Act to Internet and broadband service
providers.
  Given the enormous importance of the Internet for enhancing consumer
access to programming, it is essential that Congress give full
attention to this issue early next year. I look forward to working with
my colleagues to ensure that we take steps to further enhance the range
of choices consumers have in the marketplace.
  I also wanted to take a moment to commend Senator Baucus and others
for their efforts in securing an agreement to address the problems that
small-market and rural areas now face in obtaining satellite broadcasts
of their local television stations. By my estimates, the only market in
Virginia that will get local-into-local service with the current bill
is the metropolitan D.C. area, leaving over 94% of satellite households
in my state without this crucial service. All Virginians, however, and,
indeed, all Americans, deserve quality local satellite service, and I
intend to make this issue a top priority when Congress returns next
year.
  Mr. LOTT. Mr. President, today the Senate passed the Intellectual
Property and Communications Omnibus Reform Act of 1999. This bill makes
many needed and timely reforms to the Satellite Home Viewer Act which
originally passed almost 12 years ago. I have said for many months I
believed this was a measure that Congress should enact before
adjourning this year, and am pleased that we have been able to move
forward on this important piece of legislation.
  For a number of years, great strides have been made by providers of
direct broadcast satellite to compete for customers with cable, the
traditional provider of multichannel video services. Congress
recognized this marketplace development and the necessity to update the
rules of the road to advance such competition.
  Satellite television providers have a unique product to offer, and
more and more consumers are opting for television via satellite,
including my own son Chet. During a visit in his home, I learned
firsthand just what this debate is all about. So I disagree with those
who say this is just a broadcaster bill or this is just a satellite
bill. Clearly, both sides had to compromise, and the end result is one
that is fair to the various industry segments.
  As always, when dealing with such contentious issues in the
legislative process as were confronted in this measure, the competing
interests of several parties had to be balanced. A number of
compromises were reached, and the bill considered by the full Senate
today will be good for consumers and good for competition.
  This bill allows, for the first time ever, satellite providers to
offer local signals in local markets. Consumers value their local
signals. They want to see their local news, their local weather, their
local sports. Promoting localism was a goal of the conferees, while at
the same time giving the satellite industry the tools it needed to grow
its business. This provision will go a long way toward freeing
satellite providers to compete head-on with cable for customers who
want their local signals, or to provide service in many areas where
cable is not even an available option.
  This measure will not only boost competition in the multichannel
video marketplace, but will also ensure that consumers are not stranded
in a catch-22, without service. I know many of my colleagues, myself
included, heard from literally hundreds of thousands of constituents
across the country. Constituents who had, in good faith, subscribed to
satellite television. Constituents who were about to lose, or had
already lost, their distant network programming channels, through no
fault of their own. S. 1948 includes a reasonable, balanced approach to
restore eligibility for many of these subscribers, while preventing
further pending shut-offs.
  Other consumer friendly provisions were adopted. An improved model to
more accurately predict eligibility to receive distant network signals
from a satellite provider. Increased certainty in the waiver process
when dealing with their local broadcasters.
  I feel very strongly that consumers should not be put in a bind again
by being sold a service, only to have it taken away.
  The revised rules of the road will help level the playing field for
the direct broadcast satellite industry as well. Copyright rates are
slashed. Existing satellite copyright compulsory licenses are extended
for 5 years. A 90-day waiting period to begin serving current cable
customers who want to switch to satellite is eliminated. And the FCC
will be required to review the distant signal eligibility standard and
recommend improvements to Congress. The compromise also allows for a
phase-in period for obtaining permission to bring local signals into
markets, so that consumers and local stations benefit from local-into-
local as soon as possible.
  Mr. President, the offering of local-into-local is an expensive
undertaking. Many of my colleagues in Congress, particularly those who
represent rural states, recognize that economics will drive local-into-
local into larger, urban markets first. They wonder whether rural and
small markets will receive this service.
  While debating the merits of the overall bill, this legitimate
concern was raised. A concern that I share as well. I want my
constituents to be able to choose a satellite provider for television
without having to sacrifice watching their local broadcast stations.
The largest designated market area in my home state of Mississippi is
Jackson, which ranks number 89 out of more than 200 designated market
areas. Satellite providers have clearly indicated they are likely to
offer this new service in the top 60 to 70 markets. This translates
into a lack of comparable choices for my constituents, and for millions
of other Americans across the country. So this is an important issue
that deserves the attention of Congress.
  From the beginning, Senator Burns has been the champion of the idea
of a loan guarantee program to foster the development of systems to
deliver local-into-local in rural and small market areas. Although a
number of Senators have stood up to talk about how important this
program is for their respective states, it has been Senator Burns who
has stood firm and fought for this program.
  It is Senator Burns who is responsible for establishing the process
for the full Senate to consider the loan guarantee proposal early next
year.
  I also want to thank Senator Gramm, the distinguished Chairman of the
Senate's Banking Committee, for his cooperation in moving this
legislation forward.
  Based on my conversations with him and other Members, I was pleased
that a unanimous consent agreement was reached. This agreement requires
that a loan guarantee bill be reported to the Senate by March 30, 2000.
It is my intention to get this provision enacted into law soon
thereafter.
  Mr. President, I want to be clear. This unanimous consent agreement
does not delay the implementation of the loan guarantee program. In
fact, Senator Burns' proposal, if passed today, would still be subject
to Fiscal Year 2001 appropriations anyway. So the earliest this program
could take effect under any scenario is in Fiscal Year 2001. The agreed
upon schedule for consideration of the loan guarantee authorization is
consistent with the appropriations timetable.
  So, I believe the right incentives are in place to timely act on this
matter when the Senate reconvenes next year. And I hope we can all work
together, from both sides of the aisle. Without this kind of incentive,
millions of Americans could be left behind.
  Mr. President, the participation of Members was integral in bringing
this bill to fruition. I want to commend Senator Hatch, Chairman of the
Senate Judiciary Committee, for his leadership and determination to
complete the Senate and House negotiations on this legislation. He
worked diligently for weeks, dealing with major competing interests to
achieve a balanced policy. Senator Hatch, Senator McCain, Chairman of
the Senate Commerce, Science, and Transportation Committee, Congressman
Bliley, Chairman of the House Commerce Committee, and Congressman Hyde,
Chairman of the House Judiciary Committee, along with all of the other
Members of the conference, contributed greatly to the process, and I am
grateful to them for their service.
  This bill would not have been completed without the dedicated efforts

[[Page S15014]]

and countless long hours of negotiation among staff. Their hard work is
very much appreciated, and I want to take a moment to recognize who
they are: Monica Azare, Ed Barron, Pete Belvin, Renee Bennett, Shawn
Bentley, Benjamin Cline, Tony Coe, Manus Cooney, Colin Crowell, Troy
Dow, Jon Dudas, Julian Epstein, Paula Ford, Doug Farry, Bob Foster,
Mitch Glazier, Jim Hippe, Tim Kurth, Jon Leibowitz, Peter Levitas, Andy
Levin, Justin Lilley, Garry Malphrus, Maureen McLaughlin, Mark Monson,
Ann Morton, Al Mottur, Mitch Rose, Jim Sartucci, Jonathan Schwantes,
and Alison Vinson.
  Mr. President, this bill is an improvement over the current state of
play in today's multichannel video marketplace. It is not perfect, but
it is a positive step forward in advancing competition among industries
and choice for consumers.
  Mr. GORTON. Mr. President, I would like briefly to address Section
2002 of the Intellectual Property and Communications Omnibus Reform Act
of 1999, which is an amendment to the Omnibus package, to clarify its
meaning with my colleague who drafted the provision.
  There are a number of United States companies that have applied to
the FCC for licenses to operate non-geostationary satellite systems in
the so-called ``Ku-band.'' These firms are spending substantial amounts
of private capital to develop satellite systems that will provide a
host of telecommunications services to benefit the public. The
satellite systems that have applied for licenses in the Ku-band are
designed to operate globally on a primary basis, and already are
treated as primary users of the Ku-band in the International Table of
Frequency Allocations.
  Mr. President, I bring this up because section 2002(a) directs the
FCC to consider issuing licenses, possibly in the same bands, for new
terrestrial communications services that provide local television to
rural areas. Section 2002(b)(2) provides that the FCC must ensure that
any new licensees for local television in rural areas do not cause
harmful interference to primary users of the spectrum, presumably the
Ku-band spectrum.
  I want to clarify that Section 2002(b)(2) requires the FCC to prevent
harmful interference not only with those who have been designated as
primary users on the date of enactment of this Act, but also with
prospective primary users of the Ku-band. If the FCC were to
misinterpret this section, that is, if the FCC prevented only harmful
interference with those who are primary users on the date of enactment,
the public could be denied the substantial benefits of emerging
satellite technologies.
  Mr. McCAIN. I agree with my colleague that the authors of this bill
did not mean to interfere with the expert technical and regulatory
judgment of the FCC with respect to licensing applicants in the Ku-
band. The term ``primary user'' in Section 2002 is intended to include
primary users, regardless of whether these users are primary on the
date of enactment or are later designated as primary. The provision in
no way seeks to grant preferential regulatory treatment to terrestrial
license applicants over satellite system applicants. While there
appears to be an error in the report accompanying this legislation,
which incorrectly states that the statute says that ``existing''
primary users must be protected, clearly the statute does not contain
this qualifier, and it is our intent that the FCC protect primary
users, whether designated now, or later.
  Mr. CLELAND. Mr. President, on November 9, 1999, the House of
Representatives overwhelmingly passed (411-8) the conference report on
H.R. 1554, the Intellectual Property and Communications Omnibus Reform
Act of 1999. Arriving at a conference report compromise was a long
process. For months, conferees have been negotiating over these
provisions. The bill the Committee produced was a good bill, and that
is underscored by the overwhelming, bipartisan support the final
version received.
  However, the Senate will not act on this bill propr to adjourning for
the year. Instead, Congress will recess without passing the complete
Conference Committee version of H.R. 1554. In an attempt to achieve
some of the gains from this bill, a modified version of the Satellite
Home Viewers Act will be attached to the final omnibus appropriations
bill and passed by Congress. However, it will be absent one important
provision that would help ensure that rural citizens are not overlooked
as they often are in other sectors.
  The two major direct broadcast satellite (DBS) companies have stated
to Congress that they will only serve the most popular markets with
local broadcast channels once the statutory restriction prohibiting
this action is removed. An incentive needs to be there for businesses
to develop this same service for households in second tier markets and
rural areas as well. The conference report to H.R. 1554 would have
provided $1.25 billion in loan guarantees for satellite companies that
seek to serve these often overlooked markets. It was an idea I strongly
supported because it would have encouraged development of this service
in second tier and rural markets in Georgia and elsewhere in the
country.
  Instead, a single Senator demanded the removal of this provision
because of procedural issues and because, at the end of a legislative
session it generally takes unanimous consent to expedite consideration
of each measure, the bill presented to the Senate as part of the final
appropriations bill reflects an acquiescence to this demand. To respond
to those of us who supported the loan guarantee, the Chairman of the
Banking Committee has promised to take up this provision and pass
appropriate legislation by April 1, 2000. In the meantime, millions of
satellite viewers who live in middle and rural America will not have
the opportunity to view their local channels nor will they have the
solace in knowing such service will be coming soon. This is very
disappointing, and it is my sincere hope that the promise to act
swiftly on the loan guarantees will be kept in an environment where
promises and compacts are too often ignored.
  As a member of the Commerce Committee, I have been closely following
this bill throughout the entire process. At the heart of this debate is
viewers' access to local broadcast television. I say to my colleagues
that rural Americans deserve the same access to their local broadcast
stations that urban and suburban DBS customers will soon enjoy. I will
work next year to ensure that this loan guarantee program is acted upon
swiftly.
  Mr. HOLLINGS. Mr. President, this conference report represents a
first step in promoting satellite as a competitor to cable. The
conference was presented with two bills which approached a number of
the major issues in very different ways. In order to reach an
agreement, compromises were made. As a result, I believe consumers are
better off with the passage of this bill, and satellite companies are
now in a better position to compete with cable companies.
  A number of provisions in particular will improve and expand
satellite service to consumers. This conference report establishes a
framework for satellite companies to deliver local network signals into
local markets. This allows satellite consumers to receive their local
network stations by satellite. The satellite companies have indicated
that it is crucial that they are able to deliver local broadcast
signals to satellite consumers if they are to compete with cable. I
hope going forward, satellite companies embrace this provision and
provide local signals to as many markets as possible, including those
in rural areas.
  In addition to these provisions, the conference report directs the
FCC to establish a waiver process to allow satellite consumers who
cannot receive their broadcast signals over an outdoor antenna, to
obtain a waiver and be allowed to get distant network signals. This
provision establishes a uniform waiver process and ensures that a
consumer's request for a waiver will be addressed within 30 days. The
conference report also requires the FCC to improve the accuracy of the
methodology used to predict which consumers cannot receive their
broadcast signals over the air, and therefore, can obtain distant
network signals by satellite. Language also has been placed in the bill
to improve the negotiating position of the satellite companies in their
negotiations with broadcasters to obtain programming. Hopefully, this
provision

[[Page S15015]]

will help satellite providers to obtain programming from broadcasters
on fair and reasonable terms, and ultimately, provide consumers with
service at a competitive price.
  As noted previously, compromises were made. As the bill advanced
through committee, I opposed the grandfathering of satellite customers
who had been illegally provided distant network signals. At that time,
I stated that illegal activities should not be rewarded. Satellite
companies should not benefit from a grandfather of illegally provided
distant broadcast signals to consumers. Nonetheless, the conference
decided to allow satellite consumers who can receive their local
network signals of Grade B intensity over an antenna, to continue to
receive distant network signals by satellite. It also allowed satellite
consumers who receive distant broadcast signals through big (C-band)
dishes to continue receiving such service regardless of whether their
distant broadcast signals have been cut-off or have been scheduled to
be cut-off. In this bill, we have taken a number of steps to provide a
better framework for the provision of satellite service. Therefore, I
hope satellite companies will comply with the law going forward.
  I expect the passage of this conference report will result in the
delivery of better satellite service to consumers, and ensure that
satellite companies can provide consumers with a competitively priced
option to cable service.
  Mr. BOND. Mr. President, as many of my colleagues know, the so-called
``patent reform'' act was placed in the Satellite Home Viewer Act in
the waning hours of the conference. Even though this bill did not clear
the Senate floor in regular order and never had a vote on the floor of
the Senate and was highly controversial for three years the proponents
had to resort to these tactics to secure passage. The Satellite Act was
very important and many Americans were relying on its passage so it
provided the leverage. This is an unfortunate development in this
legislative battle. Over the strenuous objections of several members,
the bill stayed in the conference report. The inventors never even got
a debate on the floor of the Senate. I think the entrepreneurs of
America deserve far better than this sort of treatment.
  Special recognition should be given to the staff of the Alliance for
American Innovation for their hard work on behalf of American
Inventors, particularly Steven Shore and Beverly Selby. Also,
Congresswoman Helen Bentley labored tirelessly on behalf of America's
inventors, they deserve a great deal of recognition for their fight. As
does Jim Morrison of the National Association of the Self Employed.
They won many victories in this battle and the proponents had to resort
to these sorts of tactics to defeat them. It is unfortunate how this
bill was handled, the American inventors deserved a debate and a vote--
for all that they do for America, they deserve better. We are going to
be watching carefully the impact of this bill on innovation in America.
  Mr. DeWINE. Mr. President, for the past several months I have served
as a member of the House-Senate conference on H.R. 1554, the Satellite
Home Viewer Improvement Act of 1999, which has been reported as a part
of H.R. 3194, the District of Columbia Appropriations Act. The
Satellite Home Viewer Improvement Act is a complicated and technical
bill, but at its heart lies a simple premise--to protect interests of
consumers by allowing more choices in the market for television
providers. The conference agreement does this by allowing satellite
companies the same opportunity to provide local signals that cable
providers currently enjoy--and this increased competition should lead
to better prices and better services for consumers. I hope my
colleagues will join me in supporting the act.
  As is to be expected in any complex piece of legislation, there were
a number of difficult issues, and many public policy goals to be
considered. The most important of these public policy goals is to
protect the interests of consumers, and we needed to consider two
factors in that regard--enhancing consumer choice in television
service, and protecting the local television stations that so many rely
on for their news, traffic, weather and sports. Accordingly, the
conference agreement features a number of compromises that aim to
protect both of these consumer interests.
  Perhaps the best example of this is the so-called ``must carry''
provision. This provision requires that if a multi-channel video
provider (for example cable, or satellite) is carrying any broadcast
signals in a given market, that provider must carry all broadcast
signals in a given market. This requirement protects local television
stations by assuring that their signals will be carried, whether
consumers are purchasing satellite service or cable service. At first
this may limit the number of markets that satellite providers can
reach, but as technology and satellite capacity increase we are
confident that satellite service, and the benefits of local signal
competition, will reach more and more markets. This provision does not
go into effect until January 1, 2002, in order to give the satellite
companies time to further develop their technology and improve their
product for consumers.
  In the meantime, this act offers a number of other benefits to
consumers. It sets the copyright rate for local signals at zero, and
cuts the copyright rate for the so-called ``distant local signals'' by
as much as 45 percent. It provides a ``grandfather'' clause for a large
group of consumers already receiving satellite service, who might
otherwise be cut off by a federal court ruling. And it makes it easier
for consumers to determine what type of satellite service they are
eligible for, a process which in the past has been somewhat difficult.
  As many of my colleagues have noted, this act may not completely cure
the competitive problems faced by consumers in the marketplace for
video services. Certain provisions will require further action by the
Federal Communications Commission and by Congress. But it is a good
step in the right direction. I believe the Satellite Home Viewer
Improvement Act of 1999 will increase competition in these markets, and
it will increase consumer choice. In the short run, and in the long
run, this act is good for competition, and good for consumers.

           COMPULSORY LICENSING AND ONLINE SERVICE PROVIDERS

  Mr. WARNER. Mr. President, I rise to explain to my colleagues an
important change made to the Satellite Home Viewer Improvement Act of
1999, which was reintroduced as S. 1948 and included in the measure
before us today. As my colleagues may know, I and other Senators had
been very concerned that two sections of the legislation would unfairly
have discriminated against Internet service providers. Many of my
constituents were concerned that sections 1005(e) and 1011(c) of the
legislation would be interpreted by the courts or the Copyright Office
to expressly and permanently exclude any ``online digital communication
service'' from retransmitting a transmission of a television program or
other audiovisual work pursuant to a compulsory or statutory license
under the Copyright Act.
  I am pleased to report that these potentially damaging provisions
were deleted from the bill before us. As my colleagues may know, these
provisions originally were inserted in conference, even though the
committees of jurisdiction had never held hearings on them, had never
received any record evidence as to their need, and had never considered
them in open debate. The committees of jurisdiction in the House and
the Senate will now have an opportunity to carefully consider the
application of the Copyright Act to the Internet and broadband service
providers.
  As someone proud to represent most of the major Internet service
providers in the world. I have little doubt about the importance of the
Internet and other online communications technologies for enhancing
consumer access to information and programming. Online technology has
transformed the way consumers receive information, including
audiovisual works. It undoubtedly will bring other benefits, but only
if Congress makes certain that it does not place unreasonable barriers
in the way.
  Because rapid technological changes are having an ever more
significant impact on our economy, it is essential that the Congress
give full attention to this issue early next year.

[[Page S15016]]

            the intellectual property and communications act

  Mr. KERRY. Mr. President, I am pleased that Sec. 2002 of S. 1948
directs the Federal Communications Commission to expedite its review of
license applications to deliver local television signals into all local
markets. it's my understanding that the FCC has had applications
pending before it since January, which, if approved, would clear the
way for nationwide deployment of an innovative digital terrestrial
wireless system for multi-channel video programming. This new
technology will benefit all Americans by providing robust competition
to incumbent cable systems in Massachusetts and across the entire
nation. Equally important, it will provide rural Americans with the
same access to local signals as their urban and suburban counterparts.
Under Sec. 2002(b)(2), the FCC shall ensure that licensees will not
cause harmful interference to existing primary users of the spectrum.
Moreover, the FCC, consistent with its mission to manage the spectrum
in the public interest, will address, any coordination related to new
users of a particular band.
  Mr. DeWINE. Mr. President, I rise today in support of the American
Inventors Protection Act of 1999, which is incorporated into the
Satellite Home Viewers Act Conference Committee Report. I am a Member
of that Conference Committee. Ultimately, the Satellite Home Viewers
Act Conference Committee Report will be included in this year's omnibus
appropriations bill, the District of Columbia Appropriations Act of
2000.
  With regard to the American Inventors Protection Act, I am
particularly pleased with the Act's inclusion of the first inventor or
``prior user'' defense, created by Subtitle C. Unfortunately, the fact
that this Act is being considered by the Senate in the closing days of
the legislative session has limited the Judiciary Committee's ability
to include a complete legislative history on the Act. As a Member of
the Judiciary Committee, my intent is that this statement supplement
the Senate's legislative history with regard to Subtitle C of the
American Inventors Protection Act.
  The prior user defense to patent infringement is of great importance
to the financial services industry. For years, the financial services
industry developed ``back office'' methods and processes that are
fundamental to the delivery of many financial services. The House
Judiciary Committee Report refers to the breadth of the types of
methods and processes used by the financial services industry: ``These
financial services may embody methods or processes incorporated into
any number of systems including, but not limited to, trading,
investment and liquidity management, securities custody and reporting,
balance reporting, funds transfer, ACH, ATM processing, on-line
banking, check processing and compliance and risk management. In each
of these systems, multiple processing and method steps are acting upon
a customer's data without its knowledge.'' Minor changes in the bill
since it was reported by the House Judiciary Committee do not affect
the scope of methods to be considered under this Title.
  Virtually no one in the industry believed that these methods or
processes were patentable. Instead, the only legal protections believed
to be available were those granted under trade secret laws. Last year,
in State Street Bank & Trust Company v. Signature Financial Group,
Inc., the financial services industry was dealt a blow when the Court
of Appeals for the Federal Circuit held that business methods can be
patented. Early this year, the Supreme Court denied certiorari in that
case, making it official. After State Street, methods and processes
that were developed by the financial services industry years ago are
subject to patent. Some of these methods and processes are transparent
to the end user of the services and can be ``reverse engineered'' and
then easily copied. A later user of the method can now patent a method
or process that another inventor had developed and put into use first.
The actual inventor would then be prohibited from using his own
invention, or be required to pay royalties to the subsequent inventor.
  This situation is clearly unfair. Fortunately, Subtitle C of the
American Inventors Protection Act partially corrects the unfortunate
consequences of the State Street decision by adding a new section to
the patent code establishing the ``prior user'' defense. Specifically,
this provides a defense to a claim of patent infringement where a
person has commercially used or made serious preparations to
commercially use a process that later becomes the subject matter of a
patent issued to another. Under this subtitle, an ``internal commercial
use or arm's length commercial transfer of a useful end result''
includes a method or process, the subject matter of which may be
directed to an information or data processing system providing a
financial service, whether in the form of physical products, or in the
form of services, or in the form of some useful results.

  The term ``method'' should be interpreted broadly so that it includes
any ``method of doing or conducting business,'' including a process.
The method that is the subject matter of the defense may be an internal
method of doing business, a method used in the course of doing or
conducting business, or a method for conducting business in the public
marketplace. It can be a method used in the design, formulation,
preparation, application, testing, or manufacture of a product or
service. A method is any systematic way of accomplishing a particular
business goal. The defense should be applicable against patent
infringement claims regarding methods, and to claims involving machines
or articles of manufacture used to practice such methods (if such
apparatus claims are included in the asserted patent). In the context
of the financial services industry, methods would include financial
instruments (e.g., stocks, bonds, mutual funds), financial products
(e.g., futures, derivatives, asset-backed securities), financial
transactions, the ordering of financial information, any system or
process that transmits or transforms information with respect to
eventual investments or financial transactions, and any method or
process listed as examples by the House Judiciary Committee in its
report.
  Of course, the defense is not a general license; it extends only to
the specific subject matter claimed in the patent. A person asserting
the defense under this new section has the burden of establishing it by
clear and convincing evidence. As used in this title ``person''
includes each parent, subsidiary, affiliate, division, or other entity
related to the holder of the defense when they are accused of
infringement of the relevant patent. If the defense is asserted by a
person who is ultimately found to infringe a patent, and subsequently
fails to demonstrate a reasonable basis for asserting the defense, then
the court must award attorneys fees under section 285 of Title 35.
  The first inventors defense is not available if a person has
abandoned commercial use of the subject matter. In the context of this
Act, abandonment means cessation of use with no intent to resume. In
the financial services industry, certain activities are naturally
periodic or cyclical. Intervals of non-use because of factors such as
seasonal needs, or reasonable intervals between contracts, should not
be considered abandonment.
  Mr. President, subtitle C strikes a balance between the rights of the
later inventor who obtains patent protection to enjoy his exclusive
rights in the claimed subject matter, and the inherent fairness to the
earlier user to continue to use its methods and processes to conduct
and, even expand, its business. Thus, by creating a personal, prior
user defense, subtitle C would give the patent owner its statutory
patent rights enforceable against all except the earlier inventor and
commercial user of common subject matter.
  Mr. KOHL. Mr. President, I rise in support of the Satellite Home
Viewer Improvement Act of 1999 which is now included as part of this
year's Omnibus Appropriations Bill. Simply put, these changes in the
law are long overdue.
  It should come as no surprise that the final version of this
legislation is the product of compromise. Certainly, no one received
everything they wanted. However, at the end of the day, everyone can
walk away and say they got something. That holds true for broadcasters,
satellite companies and, most importantly and to the greatest degree,
consumers.

[[Page S15017]]

  The single most important thing that this bill will do is ``level the
playing field'' so that satellite companies can better compete with
cable. It does so by changing the anomaly in the law that prohibits
satellite companies from broadcasting local signals to local people,
lowering the royalty rates paid by satellite companies and, among other
things, removing the unconscionable 90 day waiting period that a
consumer must endure before switching from cable to satellite service.
We also grant a six month ``grace period'' for ``local-into-local''
retransmission consent agreements. I am not so sure that this is quite
the ``Holy Grail'' for consumers that some believe it is; however, I
doubt the sky is going to fall down for the networks either.
  To ensure that all local stations are carried and to keep the playing
field as level as possible, this legislation imposes full ``must
carry'' obligations by 2002 upon satellite providers, just as current
law does on cable. That is, if a satellite company carries one local
station in a market, then it must carry all the local stations. Now,
reasonable people can disagree about ``must carry''--the Supreme Court
upheld its constitutionality by a slim 5-4 vote--but it is only fair to
apply it evenly to both cable and satellite companies.
  This Conference Report also lays to rest many of the thorny disputes
that have served only to hurt consumers. Both the Senate and the House
have agreed to ``grandfather'' those consumers in the Grade B service
area who currently receive ``distant network'' signals. To be sure,
some satellite companies have been bad actors in this debate and so
have some subscribers. Nonetheless, short of deposing each and every
consumer, it's best to put these problems behind us and start off on a
clean slate. We expect that going forward the letter of the law will be
adhered to and respected--heavy penalties await those who would do
otherwise, and rightfully so.
  The matter of ``if and when'' a consumer should receive a waiver from
a local broadcaster currently resembles a Sherlock Holmes mystery. So
we order the FCC to draft ``consumer-friendly'' regulations to govern
the waiver process. Our bill tells local broadcasters that if they fail
to act on waiver requests within 30 days, the request will be
``deemed'' approved. We trust the FCC will improve and simplify this
process even further.
  Just as importantly, we ask the FCC to take a hard look at whether
the Grade B standard is sufficient to determine what a good picture is
in today's world. The truth is that if there's a fairer standard out
there, then we should apply it. Rest assured, the Congress will get the
last bite at the apple by requiring the FCC to report back to Congress
with its findings, rather than allowing the Commission to ``self-
execute'' its new study.
  Let me make one final point regarding one of the most difficult
matters in Conference: retransmission consent. The original House
language was predicated on the belief that there exists unequal
bargaining positions between the broadcasters and the satellite
companies. Our Senate bill took precisely the opposite approach. But
our law comes out somewhere in the middle: it will prohibit exclusive
deals, ensure that parties negotiate in ``good faith'' when making
these agreements, and put some teeth into ``good faith'' by adding the
``competitive marketplace considerations'' language.
  That said, there may be some disagreement as to what exactly this new
provision means. At the very least, ``competitive marketplace
considerations'' may simply be interpreted as the normal, everyday
jostling that takes place in the business world. At the very most, a
``competitive marketplace'' would tolerate differences based upon
legitimate cost justifications, but not anti-competitive practices such
as illegal tying and bundling. The answer probably lies somewhere
between these two interpretations and we trust the sometimes confused
FCC, as we often do, to properly divine the real intent of a somewhat
confused Congress.
  Again, this isn't a perfect bill. Far from it. But we can't let the
perfect be the enemy of the good. This measure will allow satellite
companies to compete more aggressively with cable; it will provide more
choice for consumers; with luck, it may even discipline rising cable
rates. So I urge my colleagues to support this bipartisan, fair, and
comprehensive legislation that was the product of a great deal of hard
work and negotiation. We owe consumers no less than that.
  Mr. President, one final note: I ask unanimous consent to have
printed in the Record the names of the Conference Committee staff to
show my appreciation for their hard work. They are to be commended for
putting in the long hours it took to get this bill done.
  There being no objection, the list was ordered to be printed in the
Record, as follows:

     Satellite Home Viewer Improvement Act of 1999 Conference Staff

       Shawn Bentley, Senate Judiciary Committee--Senator Hatch
       Troy Dow, Senate Judiciary Committee--Senator Hatch
       Pete Belvin, Senate Commerce Committee--Senator McCain
       Mitch Rose, Senator Stevens
       Paula Ford, Senate Commerce Committee--Senator Hollings
       Al Mottur, Senate Commerce Committee--Senator Hollings
       Maureen McLaughlin, Senate Commerce Committee--Senator
     McCain
       Peter Levitas, Senate Judiciary Committee--Senator DeWine
       Ed Barron, Senate Judiciary Committee--Senator Leahy
       Jon Leibowitz, Senate Judiciary Committee--Senator Kohl
       Jonathan Schwantes, Senate Judiciary Committee--Senator
     Kohl
       Jim Hippe, Senator Thurmond
       Jim Sartucci, Senator Lott
       Renee Bennett, Senator Lott
       Justin Lilley, House Commerce Committee--Representative
     Bliley
       Ed Hearst, House Commerce Committee--Representative Bliley
       Linda Bloss-Baum, House Commerce Committee--Representative
     Bliley
       Mitch Glazier, House Judiciary Committee--Representative
     Hyde
       Vince Garlock, House Judiciary Committee--Representative
     Coble
       Monica Azare, House Commerce Committee--Representative
     Tauzin
       Bob Foster, House Commerce Committee--Representative Oxley
       Andy Levin, House Commerce Committee--Representative
     Dingell
       Colin Crowell, House Commerce Committee--Representative
     Markey
       Ann Morton, House Commerce Committee--Representative
     Boucher
       Ben Cline, House Judiciary Committee--Representative
     Goodlatte
       Garg Sampak, House Judiciary Committee--Representative
     Conyers
       Bari Schwartz, House Judiciary Committee--Representative
     Berman
       Tim Kurth, Office of the Speaker
       Doug Farry, Office of the Majority Leader
       Tony Coe, Senate Legislative Counsel
       Steven Cope, House Legislative Counsel
  Mr. HATCH. Mr. President, the Appropriations conference report before
us contains most of the text of the Conference Report accompanying H.R.
1554, a reform of the Satellite Home Viewers Act. In addition to
Satellite Home Viewers Improvement Act, this legislation contains two
other major intellectual property bills, a major reform of the patent
system and a bill to protect against the growing problem of
``cybersquatting,'' whereby the valuable names of businesses and
individuals are registered by others in bad faith to either trade on
those names or damage their value. These three pieces of legislation
are major reforms that help American consumers and American businesses.
I will briefly discuss these reforms in turn.
  As the Chairman of the Conference Committee and sponsor of the
original Senate copyright legislation underlying the Satellite Home
Viewer Improvements Act, I am delighted that the conferees have been
able to put together a comprehensive package of consumer-friendly
reforms for satellite viewers. The bill reflects an enormous effort on
the part of members and their staffs on both sides of Congress from
both parties, and represents a major advance in copyright and
communications law.
  The world of video communication has changed enormously since
television began some 70 years ago in the small home workshop of
inventor and Utah native Philo T. Farnsworth, who, together with his
wife and colleagues, viewed the first television transmission: a single
black line that rotated from vertical to horizontal. At the risk of
offending those who may disagree, I think TV programming has greatly
improved since the Farnsworths' rotating black line. Since that day in
the Farnsworths' workshop, television viewers have benefitted from
steady advances in technology that have brought increased access to an
ever more diversified range

[[Page S15018]]

of programming choices. The television industry has progressed from one
or two over-the-air broadcast stations, to a full range of broadcast
networks delivering local and syndicated national programming, to cable
television delivering both broadcast and made-for-cable programming.
And in the past decade, satellite carriers, delivering to customers
with both large and, increasingly, small dishes are emerging as new and
potent competitors in the television delivery business.
  The legislation before us today will--for the first time --allow
satellite carriers to provide local subscribers with their local
television signals. This means every television viewer in Utah can have
access to Utah news, weather, sports, and other locally-relevant
programming, as well as national network programming. Emerging
technology now makes this possible, and our bill will make it legal.
The bill also reduces the copyright fees that are passed along to
subscribers. As a result, eligible viewers in parts of Utah unserved by
over-the-air television will enjoy access to network stations at lower
prices.
  Let me illustrate some of the benefits of this legislation for Utah
and for Utahns. Similar benefits can accrue across the country if this
legislation is fully utilized. Many areas of Utah are unserved by over-
the-air television or even by cable systems. Satellite service has been
the only television option for many Utahns. Up until the passage of
this conference report, these Utahns were able to get network stations,
but usually from cities outside of Utah, such as New York or Los
Angeles. And, those Utahns who had satellite dishes but lived in areas
which did receive local television over-the-air could not legally get
any network television programming using their satellite dishes, but
had to get them with an off-air antenna or by cable. Under the
provisions of this conference report, every Utahn will be able to get
local network programming, which includes both national network shows
like ``ER'' and ``The X-Files'' and local news, weather, sports, and
public affairs programming. And those people who live in the so-called
``white areas'' that are unserved by local television can get local
programming from Salt Lake City, as well as keep their distant signals
if they wish to. Making Utah information and entertainment available to
all Utahns is a great benefit to us as a state, and helps bind us
together as a community. And in 2002, the satellite carriers will be
required to carry all the local television stations, just like cable.
This means that viewers will have the same range of local programming
as they have come to expect from cable, and that the viewers, rather
than satellite carriers, will be able to choose which local stations to
watch.
  Making local television signals available to all Utahns, and citizens
of similar communities across the country, is the most important reason
for this legislation. But there are many other benefits to consumers:
copyright rates for satellite signals are cut almost in half, and the
local signals are free. The Federal Communications Commission will work
to ensure that eligibility decisions for distant network signals are
clearer and prompter. Some satellite subscribers have expressed
frustration that they do not get prompt responses from local television
stations to distant signal eligibility waiver requests, although the
situation is better in Utah than in some other places. To remedy the
problem, we included a provision that says if a subscriber asks a local
station for a waiver to allow them to get distant network signals, this
conference report requires a response in 30 days or the waiver is
deemed approved. There was a provision in the previous law that
required cable subscribers to wait 90 days after unhooking their cable
before they could get satellite service. We removed that waiting period
so that Utahns who want to switch from cable can do so immediately.
  We heard from the owners of recreational vehicles that they wanted to
be able to put satellite dishes on their RV's when they go camping or
traveling. In this bill, we allow RV owners who comply with certain
documentation requirements to get satellite service. So Utahns do not
need to leave their satellite service behind when they travel. The same
rules would apply to long-haul truckers.
  Recent lawsuits enforcing the distant signal eligibility rules under
the copyright act have put many satellite subscribers in danger of
losing their distant network signal service. Let me be clear that I do
not condone or support what appears to have been law-breaking by the
satellite carriers. But I am concerned about subscribers being caught
in the middle, especially those who are not clearly served by over-the-
air television from their local broadcasters. So, in this legislation,
we protect the eligibility for satellite service received by current
subscribers have who do not get a city-grade or Grade A signal. In this
way, we can protect those subscribers who may have been misled about
their eligibility and who may be in an area that is not clearly served,
so that they will not be out their investment. With regard to the
signal intensity rules that make up the eligibility standard for
distant signals, we have asked the FCC to give us their best judgment
about how we should reform the law, so that we can have their best
input before we consider any further major reforms on this issue.

  I have talked about the benefits that will accrue to satellite
subscribers if the satellite carriers take full advantage of these
copyright license reforms. But the benefits are not just limited to
satellite subscribers. There will be benefits to cable subscribers,
too, that will come from a satellite industry equipped to compete with
cable head on in the market. Satellite service consistently ranks high
on consumer surveys for service satisfaction. It has a vast array of
channels for viewers to choose from. As I mentioned earlier, the growth
of the satellite television business has been phenomenal, even without
the ability to deliver local television stations. Recent consumer
surveys indicate that 85 percent of respondents said that the lack of
local signals is the reason why consumers who considered buying
satellite service decided not to. Imagine the growth in this industry
now that they will be able to compete with cable with the offering of
local programming. What does this all mean for cable subscribers? One
of the reasons why many believe cable is rated low on customer
satisfaction is that it usually does not have a real competitor. Many
local cable systems know its customers have nowhere else to go, so they
do not exert themselves as much to please the customer as they might
with a competitor. Armed with local signals, as well as the rest of the
benefits satellite offers, there should be a new spark of competition
in those areas where local satellite service is available. That will
lead to lower prices, increased choices, and happy customers for both
satellite and cable, and all television viewers.
  Today we are also considering a patent reform package which contains
the most significant reforms to our nation's patent code in half a
century. This bill, which Senator Leahy and I introduced as the
``American Inventors Protection Act,'' is one of the most important
high-tech reform measures to come before this body. It is widely
supported by an overwhelming majority of members on both sides of the
aisle, by the Administration, and by a broad coalition of industry,
small businesses, and American inventors. Its consideration here today
is imminently appropriate on the eve of a new millennium in which
America's ability to compete and the strength of our economy will
depend on the strength of the patent system and the protections it
affords.
  Intellectual property, and patents in particular, are among our
nation's greatest assets. From semiconductor chip technology, to
computer software, to biotechnology, to Internet and telecommunications
technology, the United States remains the undisputed world-leader in
technological innovation. In fact, according to Newsweek Magazine, the
United States is home to seven of the world's top ten technology
centers, which includes my own state of Utah. Moreover, American
creative industries now surpass all other export sectors in foreign
sales and exports. As the Internet, electronic commerce, and new
innovative technologies increasingly drive the growth of our economy,
the strength of our patent system and its ability to respond to the
challenges of new technology and global competition will be more
important than ever. This bill will enable our patent system to meet
these challenges and to protect American inventors and American
competitiveness into the next century.

[[Page S15019]]

  As many of my colleagues know, this bill is a compromise bill that
reflects years of discussion and extensive efforts to reach agreement
on all sides. Since first introducing this bill as an omnibus measure
in the 104th Congress, we have literally engaged in countless hours of
discussions and adopted over 100 amendments to this bill in order to
forge a consensus on a package of responsible patent reforms. The
Senate made significant progress toward consensus in the last Congress
when the Judiciary Committee reached several key compromises to
strengthen the bill's protections for small businesses and independent
inventors. I was pleased to see those efforts continued in the House
this year, where the supporters and former opponents of the bill agreed
to sit down and work through their differences in an effort to produce
a constructive patent reform bill. As a result of these cooperative
efforts in the House and Senate, the bill before us now enjoys
overwhelming bipartisan, bicameral support, and it is now endorsed by
the most vocal opponents of earlier reform measures.
  This broad support is reflected in the several votes that have
already occurred on this measure this year. The House has passed this
bill three times this year, including by a 376-43 vote on the bill as
stand alone measure in August and by a 411-8 vote on the bill as part
of the conference report on the ``Intellectual Property and
Communications Omnibus Reform Act.'' The Senate Judiciary Committee
also passed the bill by an 18-0 roll call vote earlier this month.
  Having touched upon some of the compromises that have brought people
together on this bill, let me take just a minute to highlight what this
bill will do for American inventors.
  1. The bill protects against fraudulent invention promoters which
prey upon novice inventors.
  2. It reduces patent fees for only the second time in history, saving
American inventors an estimated $30 million each year. The bill will
also ensure that patent fees are not used to subsidize trademark
operations and will require the PTO to study alternative fee structures
to encourage maximum participation by small inventors.
  3. It protects American companies and their workers from patent
infringement suits as a result of recent policy changes that have
allowed patents to begin to issue on internal business methods that
were previously thought to be unpatentable and which have been used
under trade secret protection.
  4. It guarantees that every diligent inventor with a patentable
invention will receive at least 17 years of patent protection (which is
what they would have received pre-GATT); most will receive a great deal
more.
  5. It allows American inventors and innovators to see foreign
technology at least 12 months earlier than today, while allowing
American inventors to maintain protections of existing law that allow
them to keep their inventions secret during patent pendency. It also
gives American inventors new protections by given them provisional
rights during the pendency of internationally published applications.

  6. It creates a new optional administrative procedure in the Patent
and Trademark Office to reduce litigation costs for patent owners and
to allow members of the public to participate in testing the validity
of patents, all while fully protecting patent holders against
repetitive challenges.
  7. It restructures the Patent and Trademark Office to eliminate red
tape and provide greater oversight by the American inventing community,
especially by small businesses and independent inventors.
  8. It protects our national security by requiring the PTO to maintain
a program with the Office of Personnel Management to identify national
security positions at the PTO and by protecting strategic information
from disclosure.
  9. Finally, it restricts the ability of the PTO Commissioner to
exchange U.S. patent data with certain foreign nations.
  In short, this is one of the most important technology-related bills
to come before Congress in recent memory. It has been years in the
making and reflects the input of many, many people from all sides. The
time to act on this package of reforms has clearly come, and I am
pleased that the Senate is finally taking this measure up.
  I am also pleased that the Senate will complete action on the
``Anticybersquatting Consumer Protection Act'' and send that
legislation to the President. In short, this is another key high-tech
bill that will curb the harmful practice of ``cybersquatting''--a term
used to refer to the deliberate and bad-faith registration of Internet
domain names in violation of the rights of trademark owners.
Cybersquatting is a very serious threat to consumers and the future
growth of electronic commerce. For example, we heard testimony in the
Judiciary Committee of consumer fraud being perpetrated by the
registrant of the ``attphonecard.com'' and ``attcallingcard.com''
domain names, who set up Internet sites purporting to sell calling
cards and soliciting personally identifying information, including
credit card numbers. Sammy Sosa had his name cybersquatted and used for
a website that implied his endorsement of the products being sold.
There are countless other similar examples of so-called ``dot-con''
artists who prey on consumer confusion and trade on the goodwill of
others.
  The fact is that if consumers cannot rely on brand-names online as
they do in the world of bricks and mortar store-fronts, few will be
willing to engage in e-commerce. Those who do will bear substantial
risks of being confused or even deceived. Few Internet users would buy
a car, fill a prescription, or even shop for books online if you they
cannot be sure who they are dealing with.
  This legislation will go a long way to ensure this sort of online
brand-name protection for consumers. At the same time, the bill
carefully balances these interests of consumers and trademark owners
with the interests of Internet users and others who would make fair or
otherwise lawful uses of trademarked names in cyberspace.
  As with trademark cybersquatting, cybersquatting of personal names
poses similar threats to consumers and e-commerce in that it causes
confusion as to the source or sponsorship of goods or services,
including confusion as to the sponsorship or affiliation of websites
bearing individuals' names. In addition, more and more people are being
harmed by people who register other peoples names and hold them out for
sale for huge sums or money or use them for various nefarious purposes.
I am particularly troubled at the prospect of what someone might do
with websites bearing the name of such people as Mother Teresa, which I
understand are currently being offered for $7 million by a
cybersquatter.
  For this reason, I was pleased that the House amendments to the
Senate bill clarified that famous names that enjoy service mark status,
such as celebrity actors and very likely Mother Teresa, are included.
As I have said, however, this bill should not be just about protecting
celebrities. I am thus pleased that the legislation in this conference
report goes further to protect those whose names don't meet the
relatively high threshold of a famous mark, but who are nonetheless
targeted by cybersquatters. For example, ESPN has reported that a
number of cybersquatters have targeted the names of high-school
athletes in anticipation that they may some day become famous. Earlier
versions of the House and Senate bills would not have protected these
individuals, but this legislation will. Furthermore, this bill directs
the Commerce Department to report to Congress on ways to better protect
personal names against cybersquatting and to work in conjunction with
the Internet Corporation for Assigned Names and Numbers (ICANN) to
include personal name disputes in the ICANN dispute resolution policy.
  This a key measure to promote electronic commerce and to protect
consumers and individuals online. While I recognize the global nature
of the cybersquatting problem, I believe this legislation is an
important start to a worldwide solution--as evidenced by the fact that
the latest ICANN dispute resolution policy reflects a number of the
policies embodied in the Senate bill. I appreciate Senator Abraham's
effort to move this bill through Congress, and I am pleased we will
pass it today.
  These are important intellectual property reforms that are helpful to
American consumers and American

[[Page S15020]]

businesses. They are the product of the hard work of many people. Mr.
President, I would like to thank many people who have worked hard to
get this conference report agreed to and passed. First, let me thank
and personally congratulate each of my colleagues on the Conference
Committee for their diligent work in achieving this goal, especially my
distinguished Ranking Member and original co-sponsor Senator Leahy, as
well as Chairman McCain, and Senators Thurmond, Stevens, DeWine,
Hollings, and Kohl, all of whom made important contributions. On the
House side, I extend my gratitude and congratulations to Chairman
Hyde and Chairman Bliley and to Representatives Coble, Tauzin,
Goodlatte, Oxley, Dingell, Conyers, Markey, Berman, and Boucher. Of
course, this successful result is also the product of tireless efforts
by our capable staffs, who have worked through many late nights and
weekends, to make this successful resolution possible. Among the many
Senate staff members who have made critical contributions are Manus
Cooney, Shawn Bentley, and Troy Dow of my staff; Bruce Cohen, Ed
Barron, Beryl Howell of Senator Leahy's staff; and from the other
Senate conferees, Mitch Rose, Pete Belvin, Maureen McLaughlin, Paula
Ford, Al Mottur, Gary Malphrus, Jim Hippe, Pete Levitas, Jon Leibowitz,
John Schwantes, and many others on the Senate side. Let me congratulate
each of them on their work. Tony Coe of Senate Legislative Counsel and
Bill Roberts of the Copyright Office both put in many long hours to
provide technical assistance. I know I speak for all of the Senate
conferees in expressing my gratitude to all these first-rate staff
members, as well as to the fine staff on the House side. The leadership
staff from both houses, particularly Jim Sartucci and Renee Bennett
from Senator Lott's staff and Doug Farry from Representative Armey's
office were key liaisons in this process.

  On patent reform, let me note my very sincere appreciation to the
Ranking Member on the Judiciary Committee, Senator Leahy, with whom I
have worked for the better part of three Congresses to bring about
these important reforms. His leadership on the Democratic side has been
a key part to getting this bill done. I want to also recognize the
extraordinary efforts of our House colleagues on this bill. Chairman
Coble, who is the bill's primary sponsor in the House, along with the
Ranking Member on the Subcommittee on Courts and Intellectual Property,
Congressman Berman, as well as Chairman Hyde and Ranking Member
Conyers, have all dedicated tremendous time and effort over the last
four years to moving this legislation forward. Their able leadership is
reflected in the support this bill received in the House. But I want to
mention in particular Congressman Rohrabacher and Congressman Campbell
who in years past had led the opposition in the House to this bill. It
is because of their efforts to work cooperatively with the proponents
of this legislation in the House to craft a package of truly
responsible reforms on behalf of American inventors that we have a bill
before us today. I want to recognize them for their leadership, and for
their good faith both in the House and in the Senate this year.
  Finally, with respect to cybersquatting legislation, I want to again
commend the Senator from Michigan, Senator Abraham, for his sponsorship
of this legislation, as well as the Ranking Member, Senator Leahy, with
whom I have again worked hand in hand to bring this bill to final
passage.
  All of these people and others were instrumental in the success of
this legislation, but let me express an especially warm thanks to
Senator Leahy, with whom I have worked closely on these and so many
other intellectual property matters, and to the Chairman of the
Appropriations Committee, Senator Stevens. We worked particularly
closely in the satellite reform conference, and he played a unique and
crucial role in the ultimate passage of this package of important
intellectual property legislation. I thank him for his leadership and
his steadfast support. And let me single out the efforts of Mitch Rose
of Senator Stevens' staff who worked along with my staff and Steve
Cortese of Senator Stevens' Appropriations Committee staff, under
Senator Stevens' leadership, to ensure that these important
intellectual property matters were ultimately enacted into law despite
the difficulties encountered in the process. They are superb public
servants and they work for one of the finest members of this August
body with whom I have had the pleasure of working. Finally, let me
mention Bruce Cohen, Ed Barron, and Beryl Howell of Senator Leahy's
staff, who, along with Senator Leahy, work with me and my staff with
exceptional cooperation on intellectual property matters. We have had a
particularly productive relationship on these important matters, and I
look forward to continuing that relationship. On my own staff, I
express my appreciation for the work of Shawn Bentley and Troy Dow, who
have labored long and hard to successfully enact this legislation, and
I thank their families for their support of their efforts on behalf of
American innovators, creators, and consumers. Finally, let me thank my
Chief Counsel, Manus Cooney, for overseeing all of this fine work, and
putting in countless hours of strenuous effort to ensure its
completion. He is a consummate leader, and I thank him for his stellar
service.
  I ask unanimous consent that the statements of Senators Leahy,
DeWine, and Kohl, followed by a number of colloquies between myself and
a number of different senators on diverse matters included in the
satellite conference report, be included in the Record at this point as
though read, together with supporting documents, and I yield the floor.
  Mr. LEAHY. Mr. President, the Judiciary Committee is about to achieve
an end-of-the-session high technology sweep that comes on the heels of
landmark Internet and intellectual property reforms that our committee
achieved in the 105th Congress.
  Others are observing that this is the most productive and forward-
looking two years of achievement in updating intellectual property laws
of this or any previous era. I believe they are right.
  We may never have another such set of opportunities where we are able
to provide so many benefits to consumers, innovators and to the high
technology innovators in the business community in such a short span of
time.
  In one fell swoop we are providing consumers with local-into-local
television, protecting patent terms, spurring innovation and enhancing
electronic commerce and protecting trademarks.
  One of the challenges we face at this early stage of the Information
Age is to bring the order of intellectual property law to the Wild West
of the Internet and to other burgeoning information technologies. That
challenge is at the heart of these three bills.
  I want to make just a couple points about each of them. The patent
bill is long overdue. It will put American innovations on a more equal
footing with European and Japanese inventors. It also helps protect
inventors against invention promotion scams and against needless PTO
delay in approving patents.
  The anti-cybersquatting bill protects merchants who want to be able
to control where their names and brands are being displayed and protect
them from abuse. More than 200 years ago Ben Franklin said that a
person's honor and good name is like fine china--easily broken but
impossible to mend. This is still the case today and the bill protects
the rights of trademark holders against malicious abuse. It arms on-
line merchants and consumers with new tools to derail these
``squatters'' who try to create bad waves for honest cybersurfers.
  And then there is the satellite bill, which is a charter for a new
era of television service competition that will benefit consumers in
several tangible ways. It sets the stage for the first real head-to-
head competition between cable and satellite TV that will be a brand
new experience for hundreds of communities.
  It will contribute a new unifying influence and greater sense of
community in states like Vermont, where citizens in most of the state
for the first time will have access to all Vermont stations. It will
avert further waves of programming cutoffs to satellite TV customers,
including what would have been the largest cutoff of all, in December.
  The satellite bill will, over time, mean that some families will be
able to

[[Page S15021]]

get local network television for the first time ever. I believe that
making local television signals available throughout much of a state
will be a unifying force and enhance public participation in state and
community issues. It will remove the artificial isolation caused by
mountain ridges or distance from broadcast towers. It will also prevent
these infuriating and seemingly mindless cutoffs and promote direct
head-to-head competition with cable.

  We have had some major bumps in the road in getting here with these
three bills.
  I want to mention the rural satellite TV provisions. I know that we
had preliminary discussions about this six months ago and that
Department of Agriculture attorneys and program experts met with our
staffs to go over the details months ago.
  I proposed that USDA handle this loan guarantee program because they
have 50 years of experience with financing rural telephone and rural
electric cooperatives. Vast areas of this nation were able to get
electric and telephone service solely because of these programs.
  It is hard to believe in this day and age, but thousands of Americans
still remember when these USDA loan programs gave them electricity for
the first time.
  I am disappointed that the final bill does not include this provision
that we worked on--but I am pleased that the Senate leaders have worked
out an arrangement with us so that this matter will be resolved early
next year.
  Without this loan guarantee program I am convinced that rural areas--
75 percent of the U.S. landmass--might not receive local-into-local
satellite TV until 10 or 20 years after urban areas do.
  Another major hurdle concerned a request by AOL and YAHOO for changes
to the bill. This concerned whether or not they should receive a
compulsory license to show regular TV programming over the Internet.
Chairman Hatch and I resolved this by agreeing to have hearings on this
important matter of convergence of technology and the protection of
copyrighted material--converging TV, data, telephone, messages and
other transmissions through broadband technologies while protecting
ownership rights to copyrighted material.
  A third bump in the road was over the GAO study Senator Hatch and I
proposed of current practices regarding the patent protection for
business methods resulting from the State Street case. In the end, we
took out that language but agreed that we would ask the GAO to look
into this for us. This issue will test the limits of what is proper
subject matter to be patented and what is not. I can easily see Senator
Hatch and I having more than one hearing on this issue.
  So here we are in the death throes of this session of Congress. It is
satisfying to know that some of the farthest-reaching achievements of
this session are the products of the work of the Judiciary Committee,
and of my partnership with Chairman Hatch.
  I am delighted that as Conferees on the satellite bill that we have
been able to put this complex and important legislation, which
originated with the Hatch-Leahy Satellite Home Viewers Improvements Act
in the Senate, into final form.
  We worked closely with a number of Senators and members of the other
body on this important legislation. Any time that you work with four
Committees in a Conference there are a lot of members and staff who do
very creative and important work late into the night, night after night
after night.
  I want to single out just a few staff even though I know I am leaving
out many who deserve equal praise. Shawn Bentley with Chairman Hatch
displayed enormous poise and breath of knowledge regarding satellite TV
issues. He balanced, as did his Chairman, a variety of complex issues
very carefully and very well.
  Troy Dow similarly was extremely helpful regarding patent and
cybersquatting issues and deserves a great deal of credit.
  I want to also thank Ed Barron of my staff regarding the satellite TV
and patent bills and Beryl Howell on cybersquatting. They both worked
very diligently on these and other issues and did a great job.
  Subcommittee Chairman DeWine and ranking Member Kohl were also
Conferees, along with Senator Thurmond, and played a major role
regarding satellite TV issues.
  This bill will provide viewers with more choices and will greatly
increase competition in the delivery of television programming, while
ensuring minimal interference with the free market copyright system
that serves our country so well.
  For years I have raised concerns about the lack of competition with
cable TV and escalating cable rates. This bill will allow satellite TV
providers to compete directly with cable in offering local stations and
will give consumers a wider range of choice. It also protects local TV
affiliates while postponing certain cutoffs of satellite TV service.
  Most promisingly, the bill will permit local TV signals, as opposed
to distant out-of-state network signals, to be offered to viewers via
satellite. Vermont is a state in which satellite dishes play a very
important role, and I know that Vermont viewers eagerly await the day
when their local stations will be available by satellite.
  It is absurd for home dish owners--whether they live in Vermont,
Utah, or California--to have to watch network stations imported from
distant states instead of local stations. They should have a choice. I
expect the satellite industry to do everything in its power to extend
local-to-local coverage beyond the biggest cities and into important
smaller markets such as those in Vermont, and the satellite industry
should not expect further Congressional largesse if it fails to do so.
  One satellite company called Capitol Broadcasting has already
committed to serve Vermont once its spot beam technology satellites
have been launched and other technological requirements have been put
in place. I am counting on that happening over the next two or three
years.
  I was very pleased to have met with the moving force behind Capitol
Broadcasting--Jim Goodmon. This company was formed by his grandfather,
A. J. Fletcher, in 1937. Under Jim Goodmon's management, Capitol
Broadcasting has expanded into satellite communications, the Internet
and high definition television. In April, Jim received the Digital
Television Pioneer Award from Broadcasting and Cable magazine. One of
their stations, CBC, was the first broadcaster to transmit a high
definition television digital signal. I look forward to helping
inaugurate their local-into-local service into Vermont.
  I expect that others will compete in Vermont. I understand the
EchoStar, under its CEO, Charlie Ergen, and DirecTV, are also looking
at providing service to Vermont.

  Providing local TV stations to Vermont dish owners will lead to head-
to-head competition between cable and satellite TV providers which
should lead to more services for Vermonters at lower prices. Also, the
bill will allow households who want to subscribe to this new satellite
TV service to receive all local Vermont TV stations over the satellite.
  The goal is to offer Vermonters with more choices, more TV
selections, but at lower rates. In areas of the country were there is
this full competition with cable providers, rates to customers are
considerably lower.
  Over time this initiative will permit satellite TV providers to offer
a full selection of all local TV channels to viewers throughout most of
Vermont, as well as the typical complement of superstations, weather
and sports channels, PBS, movies and a variety of other channels.
  This means that local Vermont TV stations will be available over
satellite to many areas of Vermont currently unserved by satellite or
by cable.
  I have gotten lots of letters from Vermonters who complained about
the current situation where local TV stations challenged their right to
receive that signal.
  Under current law, it is illegal for satellite TV providers to offer
local TV channels over a satellite dish when you live in an area where
you are likely to get a clear TV signal with a regular rooftop antenna
at least half of the time.
  This means that thousands of Vermonters living in or near Burlington
cannot receive local signals over their satellite dishes.

[[Page S15022]]

  Under current law, those families must get their local TV signals
over an antenna which often does not provide a clear picture. This bill
will remove that legal limitation and allow satellite carriers to offer
local TV signals to viewers no matter where they live in Vermont.
  Presently, Vermonters receive satellite signals with programming from
stations in other states--in other words they would get a CBS station
from another state but not WCAX, the Burlington CBS affiliate.
  By allowing satellite providers to offer a larger variety of
programming, including local stations, the satellite industry would be
able to compete with cable, and the cable industry will be competing
with satellite carriers. Cable will continue to be a very effective
competitor with its ability to offer extremely high-speed Internet
connections to homes and businesses.
  As mentioned earlier, the second major improvement in this initiative
is that satellite carriers that offer local Vermont channels in their
mix of programming will be able to reach Vermonters throughout Vermont.
The system will be based on regions called Designated Market Areas, or
DMAs. Vermont has one large DMA covering most of the state and part of
the Adirondacks in New York--the Burlington-Plattsburg DMA--and parts
of two smaller ones in Bennington County (the Albany-Schenectady-Troy
DMA) and in Windham county (the Boston DMA).
  This new satellite system is not available yet, and may not be
available in Vermont until two to three years from now. Companies such
as Capitol Broadcasting are preparing to launch spot-beam satellites to
take advantage of this bill. Using current technology, signals would be
provided by spot-beam satellites using regional uplink sites throughout
the nation to beam local signals up to one or two satellites. Those
satellites could use 60 spot beams to send those local signals,
received from the regional uplinks, back to satellite dish owners. High
definition TV would be offered under this system at a later date.
  Under this bill, Vermonters will have more choices. I want to point
out that those who want to keep their current satellite service can do
just that.
  In addition, we have protected the C-Band dish owners who have
invested a lot of money in this now out-dated, but still used,
technology. I did not think it was fair to pull the plug on them.
  Those who want to stick with cable, or with regular broadcast TV, are
welcome to continue to participate that way.
  Since technology advances so quickly, other systems could be
developed before this bill is fully implemented that would provide
similar service but using a different technology.
  The bill will also extend the distant signal compulsory license in
Section 119. In almost all respects, the distant signal license will
apply in the same way in the future as it applies today. The most
important exception is that the bill will allow continued delivery of
distant network stations to thousands of Vermonters and residents of
other states who would otherwise have distant network satellite service
terminated at the end of the year (or who have had such service
terminated by court order since July 1998).
  The purpose of this temporary ``grandfathering'' is not to reward
satellite carriers that have broken the law. Rather, the purpose of the
grandfathering is to assist certain subscribers in Vermont and
elsewhere who might have been misled by satellite companies into
believing that they were eligible to receive distant network
programming by satellite. The purpose is also to aid in achieving a
smooth transition to local-into-local programming which avoids many of
these issues.
  The subscribers who will be grandfathered are those who are not
predicted to receive a signal of Grade A intensity from any station
affiliated with the relevant network, along with certain additional C-
band subscribers.
  I want to make clear that I do not condone lawbreaking by satellite
companies or anyone else, and nothing that Congress is doing today
should be read in that light. Satellite companies remain liable for
every other remedy provided by the Copyright Act or other law for any
infringements they have committed. Satellite carriers should not be
heard to argue for any grandfathering beyond what Congress has
expressly approved, or to contend that they should be relieved of any
other available remedy because of Congress' actions.
  The second change to Section 119 is that there will no longer be a
90-day waiting period for cable subscribers that is currently part of
the definition of ``unserved household.'' This change will help to make
the satellite industry more competitive with cable, an objective I know
every member of this body shares. Third, the bill will limit to two the
number of distant signals that a satellite carrier may deliver to
unserved households.

  Except with respect to these specific changes in Section 119, nothing
in the law we are passing today will take away any of the rights and
remedies available to the parties to copyright infringement litigation
against satellite carriers. Nor does anything in this bill suggest any
criticism of the courts for enforcing the Copyright Act. It is their
job to apply the law to the facts.
  It is crucial to our system that all players in the marketplace,
including satellite carriers, be required to obey the law and held
accountable in the courts for the consequences of their own
lawbreaking. Indeed, if a particular satellite carrier has engaged in a
willful or repeated pattern or practice of infringements, it should be
held to the statutory consequences of that misconduct.
  The addition of the word ``stationary'' to the phrase ``conventional
outdoor rooftop receiving antenna'' in Section 119(d)(10) of the
Copyright Act merits a word of discussion. As the Ranking Member of the
Senate Judiciary Committee, which has jurisdiction over copyright
matters, and one of the original sponsors of this legislation, I want
to emphasize that use of this word should not be misunderstood.
  The new language says only that the antenna is to be ``stationary'';
it does not say that the antenna is to be improperly oriented, that is
pointed in way that does not obtain the strongest signal. The word
``stationary'' means, for example, that testing should be done using a
stationary antenna, as the FCC has directed.
  Satellite companies must not be encouraged to urge consumers to point
antennas in the wrong direction to qualify for different treatment.
  As to antenna orientation, the relevant guidance is provided in
Section 119(a)(2)(B)(ii)(II) of the bill, which specifies that the
FCC's procedures (requiring correct orientation) be followed. Since
satellite dishes must be properly oriented to receive a picture at all,
it would make no sense to specify misorientation of over-the-air
antennas.
  Permitting misorientation would also be inconsistent with the entire
structure of the definition of ``unserved household,'' which looks to
whether a household is capable of receiving a signal of Grade B
intensity from a particular type of affiliate, that is an ABC station
or a Fox station, not whether it is capable of receiving all of the
stations in the market.
  As I mentioned before, the Copyright Act amendments direct courts to
continue to use the accurate, consumer-friendly prediction and
measurement tools developed by the FCC for determining whether
particular households are served or unserved. If the Commission is able
to refine its so-called ``ILLR'' predictive model to make it even more
accurate--as I hope it will--the courts should apply those further
refinements as well.
  In fact, the Copyright Act amendments in the bill specifically
address the possibility that the FCC may be able to modify its ILLR
model to make it even more accurate. Specifically, the Act provides in
new Section 119(a)(2)(B)(ii)(I) of the Copyright Act that if the FCC
should later modify the ILLR model to make it still more accurate,
courts should, under Section 119(a)(2)(B)(ii)(I), use the even more
accurate version in the future for predictive purposes.
  Whether a proposed modification to the ILLR model makes it more
accurate is an empirical question that the Commission should address by
comparing the predictions made by any proposed model against actual
measurements of signal intensity. The Commission's analysis should
reflect our

[[Page S15023]]

policy objective: to determine whether a household is--or is not--
capable of receiving a signal of Grade B intensity from at least one
station affiliated with the relevant network.
  The FCC has properly recognized that reducing one type of errors,
underprediction, while increasing another type of errors,
overprediction, does not increase accuracy, but simply puts a thumb on
the scale in favor of one side or the other. The issue under Section
119(a)(2)(B)(ii) is the overall accuracy of the model, as tested
against available measurement data, with regard to whether a household
is, or is not, capable of receiving a Grade B intensity signal from at
least one affiliate of the network in question.
  The conferees and many other members of this body have worked hard to
achieve the carefully balanced bill now before the Senate. I urge my
colleagues to give it their full support. Most of all, I thank and
congratulate my distinguished colleague and good friend, Chairman
Hatch, for his outstanding work over many months on this important
bill, which will provide lasting benefits for my constituents in
Vermont and for citizens in every other state.

  I'm also pleased that the Conference Report directs the Federal
Communications Commission to take expedited action on getting new
technologies deployed that can deliver local television signals to
viewers in smaller television markets. We've known all along, if we
pass legislation authorizing local-into-local, the DBS carriers would
readily deliver local channels to those subscribers who are fortunate
enough to live in the largest markets. There are 210 local television
Designated Market Areas in our country, and most Vermonters live in the
91st-ranked DMA. That is why it is so important for the FCC to expedite
review of alternative technologies, such as the digital terrestrial
wireless system developed by Northpoint Technology, which are capable
of delivering local signals into all markets on a must carry basis.
  I want to briefly mention the patent bill.
  This patent bill is important to America's future. I have heard from
inventors, from businesses large and small, from hi-tech to low-tech
firms--this bill will give American inventors and businesses an
improved competitive edge now enjoyed by many European countries.
  We should be on a level playing field with them.
  This bill reduces patent fees for only the second time in history.
The first time that was done was in a Hatch-Leahy bill passed by the
Senate in the 105th Congress.
  All the concepts in this bill--such as patent term guarantees,
domestic publication of patent applications filed abroad, first
inventor defense--have been thoroughly examined. Indeed, they have been
included in several bills that the Congress has carefully studied.
  I wish to point out that the Senate Judiciary Committee last year
also developed a strong bill--S. 507--which contained many of the same
concepts and approaches found in H.R. 1907 and S. 1798.
  American business needs this patent bill, American technology
companies need this patent bill, American inventors and innovators need
this patent bill.

  The Administration says that we must have the reforms in this bill.
It will: reduce legal fees that are paid by inventors and companies;
eliminate duplication of research efforts and accelerate research into
new areas; increase the value of patents to inventors and companies;
and facilitate U.S. inventors and companies' research, development, and
commercialization of inventions.
  In Vermont, we have a number of independent inventors and small
companies. It is, therefore, especially important to me that this bill
be one that helps them as well as the larger companies in Vermont like
IBM.
  Over the past several years, Congress has held eight Congressional
hearings with over 80 witnesses testifying about the various proposals
incorporated in the bill. Republican and Democratic Administrations
alike, reaching back to the Johnson Administration, have supported
these similar reforms.
  I also want to thank Secretary Daley and the Administration for their
unflagging support of effective patent reform.
  The ``American Inventors Protection Act'' was designed to make
targeted improvements to the patent code in order to enable the
American patent system to meet the challenges of new technology and new
markets as we approach the next millennium.
  The bill builds upon compromises forged in the Senate Judiciary
Committee in the 105th Congress, as well as additional compromises in
the House of Representatives in the 106th Congress, to achieve these
goals while protecting and promoting the interest of American inventors
at home and abroad.
  I also want to discuss the comments of Senators Schumer and
Torricelli regarding the patent bill and the State Street decision. I
look forward to working with both of those Senators on the issues they
raise. I expect that the Committee will have hearings on this matter
next year. Also, the Conference Report on the bill contains a detailed
analysis of these important issues which was accepted by all Conferees.
  The FY 2000 Omnibus Appropriations bill also includes provisions that
Senator Hatch and I and others have crafted to address cybersquatting
on domain names. We have worked hard to craft this legislation in a
balanced fashion to protect trademark owners and consumers doing
business online, and Internet users who want to participate in what the
Supreme Court has described as ``a unique and wholly new medium of
worldwide human communication.'' Reno v. ACLU, 521 U.S. 844.
  Trademarks are important tools of commerce. The exclusive right to
the use of a unique mark helps companies compete in the marketplace by
distinguishing their goods and services from those of their
competitors, and helps consumers identify the source of a product by
linking it with a particular company. The use of trademarks by
companies, and reliance on trademarks by consumers, will only become
more important as the global marketplace grows larger and more
accessible with electronic commerce. The reason is simple: when a
trademarked name is used as a company's address in cyberspace,
customers know where to go online to conduct business with that
company.
  The growth of electronic commerce is having a positive effect on the
economies of small rural states like mine. A Vermont Internet Commerce
report I commissioned earlier this year found that Vermont gained more
than 1,000 new jobs as a result of Internet commerce, with the
potential that Vermont could add more than 24,000 jobs over the next
two years. For a small state like ours, this is very good news.
  Along with the good news, this report identified a number of
obstacles that stand in the way of Vermont reaching the full potential
promised by Internet commerce. One obstacle is that ``merchants are
anxious about not being able to control where their names and brands
are being displayed.'' Another is the need to bolster consumers'
confidence in online shopping.
  Cybersquatters hurt electronic commerce. Both merchant and consumer
confidence in conducting business online are undermined by so-called
``cybersquatters'' or ``cyberpirates,'' who abuse the rights of
trademark holders by purposely and maliciously registering as a domain
name the trademarked name of another company to divert and confuse
customers or to deny the company the ability to establish an easy-to-
find online location. A recent report by the World Intellectual
Property Organization (WIPO) on the Internet domain name process has
characterized cybersquatting as ``predatory and parasitical practices
by a minority of domain registrants acting in bad faith'' to register
famous or well-known marks of others--which can lead to consumer
confusion or downright fraud.

  Enforcing trademarks in cyberspace will promote global electronic
commerce. Enforcing trademark law in cyberspace can help bring consumer
confidence to this new frontier. That is why I have long been concerned
with protecting registered trademarks online. Indeed, when the Congress
passed the Federal Trademark Dilution Act of 1995, I noted that:

       Although no one else has yet considered this application,
     it is my hope that this

[[Page S15024]]

     antidilution statute can help stem the use of deceptive
     Internet addresses taken by those who are choosing marks that
     are associated with the products and reputations of others.

  The Federal Trademark Dilution Act of 1995 has been used as I
predicted to help stop misleading uses of trademarks as domain names.
One court has described this exercise by saying that ``attempting to
apply established trademark law in the fast-developing world of the
Internet is somewhat like trying to board a moving bus. . .'' Bensusan
Restaurant Corp. v. King, 126 F.3d 25. Nevertheless, the courts appear
to be handling ``cybersquatting'' cases well. As University of Miami
Law Professor Michael Froomkin noted in testimony submitted at the
Judiciary Committee's hearing on this issue on July 22, 1999, ``in
every case involving a person who registered large numbers of domains
for resale, the cybersquatter has lost.''
  For example, courts have had little trouble dealing with a notorious
cybersquatter, Dennis Toeppen from Illinois, who registered more than
100 trademarks--including

``yankeestadium.com,'' ``deltaairlines.com,''

 and ``neiman-marcus.com''--as domain names for the purpose of
eventually selling the names back to the companies owning the
trademarks. The various courts reviewing his activities have
unanimously determined that he violated the Federal Trademark Dilution
Act.

  Similarly, Wayne State University Law Professor Jessica Litman noted
in testimony submitted at the Judiciary Committee's hearing that those
businesses that ``have registered domain names that are confusingly
similar to trademarks or personal names in order to use them for
pornographic web sites * * * have without exception lost suits brought
against them.''
  Even as we consider this legislation, we must acknowledge that
enforcing or even modifying our trademark laws will be only part of the
solution to cybersquatting. Up to now, people have been able to
register any number of domain names in the popular ``.com'' domain with
no money down and no money due for 60 days. Network Solutions Inc., the
dominant Internet registrar, recently announced that it was changing
this policy, and requiring payment of the registration fee up front. In
doing so, NSI admitted that it was making this change to curb
cybersquatting.
  In addition, we need to encourage the development of alternative
dispute resolution procedures that can provide a forum for global users
of the Internet to resolve domain name disputes. For this reason, I
authored an amendment that was enacted last year as part of the Next
Generation Internet Research Act authorizing the National Research
Council of the National Academy of Sciences to study the effects on
trademark holders of adding new top-level domain names and requesting
recommendations on inexpensive and expeditious procedures for resolving
trademark disputes over the assignment of domain names. Both the
Internet Corporation for Assigned Names and Numbers and WIPO are also
making recommendations on these procedures. Adoption of a uniform
trademark domain name dispute resolution policy should be of enormous
benefit to American trademark owners.
  We should encourage the sensible development of case law in this
area, the ongoing efforts within WIPO and ICANN to build a consensus
global mechanism for resolving online trademark disputes, and the
implementation of domain name registration practices designed to
discourage cybersquatting. The legislation we pass today as part of the
Omnibus Appropriations bill for the upcoming fiscal year is intended to
build upon this progress and provide constructive guidance to trademark
holders, domain name registrars and registries and Internet users
registering domain names alike.

  This legislation has been significantly improved since it was first
introduced. As originally introduced by Senator Abraham and others, S.
1255, the ``Trademark Cyberpiracy Prevention Act'', proposed to make it
illegal to register or use any ``Internet domain name or identifier of
an online location'' that could be confused with the trademark of
another person or cause dilution of a ``famous trademark.'' Violations
were punishable by both civil and criminal penalties.
  I voiced concerns at a hearing before the Judiciary Committee that,
in its original form, S. 1255 would have a number of unintended
consequences that would have hurt rather than promoted electronic
commerce, including the following specific problems:
  The definition was overbroad. As introduced, S. 1255 covered the use
or registration of any ``identifier,'' which could cover not just
second level domain names, but also e-mail addresses, screen names used
in chat rooms, and even files accessible and readable on the Internet.
As one witness pointed out, ``the definitions will make every fan a
criminal.'' How? A file document about Batman, for example, that uses
the trademark ``Batman'' in its name, which also identifies its online
location, could land the writer in court under that bill.
Cybersquatting is not about file names.
  The original bill threatened hypertext linking. The Web operates on
hypertext linking, to facilitate jumping from one site to another. The
original bill could have disrupted this practice by imposing liability
on operators of sites with links to other sites with trademark names in
the address. One could imagine a trademark owner not wanting to be
associated with or linked with certain sites, and threatening suit
under this proposal unless the link were eliminated or payments were
made for allowing the linking.

  The original bill would have criminalized dissent and protest sites.
A number of Web sites collect complaints about trademarked products or
services, and use the trademarked names to identify themselves. For
example, there are protest sites named ``boycott-cbs.com'' and
``www.PepsiBloodbath.com.'' While the speech contained on those sites
is clearly constitutionally protected, as originally introduced, S.
1255 would have criminalized the use of the trademarked name to reach
the site and made them difficult to search for and find online.
  The original bill would have stifled legitimate warehousing of domain
names. The bill, as introduced, would have changed current law and made
liable persons who merely register domain names similar to other
trademarked names, whether or not they actually set up a site and used
the name. The courts have recognized that companies may have legitimate
reasons for registering domain names without using them and have
declined to find trademark violations for mere registration of a
trademarked name. For example, a company planning to acquire another
company might register a domain name containing the target company's
name in anticipation of the deal. The original bill would have made
that company liable for trademark infringement.
  For these and other reasons, Professor Litman concluded that, ``as
introduced, S. 1255 would in many ways be bad for electronic commerce,
by making it hazardous to do business on the Internet without first
retaining trademark counsel.'' Faced with the risk of criminal
penalties, she stated that ``many start-up businesses may choose to
abandon their goodwill and move to another Internet location, or even
to fold, rather than risk liability.''
  Domain name cybersquatting is a real problem. For example,
whitehouse.com has probably gotten more traffic from people trying to
find copies of the President's speeches than those interested in
adult material.

  While the problem is clear, narrowly defining the solution is
trickier. The mere presence of a trademark is not enough. Legitimate
conflicts may arise between companies offering different services or
products under the same trademarked name, such as Juno Lighting Inc.
and Juno online services over the juno.com domain name, or between
companies and individuals who register a name or nickname as a domain
name, such as the young boy nicknamed ``Pokey'' whose domain name
``pokey.org'' was challenged by the toy manufacturer who owns the
rights to the Gumby and Pokey toys. A site may also use a trademarked
name to protest a group, company or issue, such as pepsibloodbath.com,
or even to defend one's reputation, such as www.civil-action.com, which
belongs not to a motion picture studio, but to W.R. Grace to rebut the
unflattering portrait of the company as a polluter

[[Page S15025]]

and child poisoner created by the movie.
  There is a world of difference between these sorts of sites and those
which use deceptive naming practices to draw attention to their site
for example, whitehouse.com, or those who use domain names to
misrepresent the goods or services they offer, for instance,
dellmemory.com, which may be confused with the Dell computer company.
  We must also recognize certain technological realities. For example,
merely mentioning a trademark is not a problem. Posting a speech that
mentions AOL on my web page and calling the page aol.html, confuses no
one between my page and America Online's site. Likewise, we must
recognize that while the Web is a key part of the Internet, it is not
the only part. We simply do not want to pass legislation that may
impose liability on Internet users with e-mail addresses, which may
contain a trademarked name. Nor do we want to crack down on newsgroups
that use trademarks descriptively, such as alt.comics.batman.
  In short, it is important that we distinguish between the legitimate
and illegitimate use of domain names, and the cybersquatting
legislation that we pass today does just that.

  Due to the significant flaws in S. 1255, the Senate Judiciary
Committee reported and the Senate passed a complete substitute to that
bill. On July 29, 1999, Senator Hatch and I, along with several other
Senators, introduced S. 1461, the ``Domain Name Piracy Prevention Act
of 1999.'' This bill then provided the text of the Hatch-Leahy
substitute amendment that the Senate Judiciary Committee reported
unanimously to S. 1255 the same day. This substitute amendment, with
three additional refinements contained in a Hatch-Leahy clarifying
amendment, was passed by the Senate on August 5, 1999.
  This Hatch-Leahy substitute provided a better solution than the
original, S. 1255, in addressing the cybersquatting problem without
jeopardizing other important online rights and interests.
  Following Senate passage of the bill, the House passed a version of
the legislation, H.R. 3208, the ``Trademark Cyberprivacy Prevention
Act'', which has been modified for inclusion in the FY 2000 Omnibus
Appropriations bill.
  This legislation, now called the ``Anti-Cybersquatting Consumer
Protection Act'', would amend section 43 of the Trademark Act by adding
a new section to make liable for actual or statutory damages any domain
name registrant, who with bad-faith intent to profit from the goodwill
of another's trademark, without regard to the goods or services of the
parties, registers, traffics in or uses a domain name that is identical
or confusingly similar to a distinctive trademark or dilutive of a
famous trademark. The fact that the domain name registrant did not
compete with the trademark owner would not be a bar to recovery. This
legislation also makes clear that personal names that are protected as
marks would also be covered by new section 1125.
  Furthermore, this legislation should not in any way frustrate the
global efforts already underway to develop inexpensive and expeditious
procedures for resolving domain name disputes that avoid costly
and time-consuming litigation in the court systems either here or
abroad. In fact, the legislation expressly provides liability
limitations for domain name registrars, registries or other domain name
registration authorities when they take actions pursuant to a
reasonable policy prohibiting the registration of domain names that are
identical or confusingly similar to another's trademark or dilutive of
a famous trademark. The ICANN and WIPO consideration of these issues
will inform the development by domain name registrars and registries of
such reasonable policies.

  Uses of infringing domain names that support liability under the
legislation are expressly limited to uses by the domain name registrant
or the registrant's authorized licensee. This limitation makes clear
that ``uses'' of domain names by persons other than the domain name
registrant for purposes such as hypertext linking, directory
publishing, or for search engines, are not covered by the prohibition.
  Other significant sections of this legislation are discussed below:
  Domain names are narrowly defined to mean alphanumeric designations
registered with or assigned by domain name registrars or registries, or
other domain name registration authority as part of an electronic
address on the Internet. Since registrars only register second level
domain names, this definition effectively excludes file names, screen
names, and e-mail addresses and, under current registration practice,
applies only to second level domain names.
  The terms ``domain name registrar, domain name registry, or other
domain name authority that registered or assigned the domain name'' in
Section 3002(a) of the Act, amending 15 U.S.C. 1125(d)(2)(a), is
intended to refer only to those entities that actually place the name
in a registry, or that operate the registry, and would not extend to
other entities, such as the ICANN or any of its constituent units, that
have some oversight or contractual relationship with such registrars
and registries. Only these entities that actually offer the challenged
name, placed it in a registry, or operate the relevant registry are
intended to be covered by those terms.

  Liability for registering a trademark name as a domain name requires
``bad faith intent to profit from that mark''. The following non-
exclusive list of nine factors are enumerated for courts to consider in
determining whether such bad faith intent to profit is proven:
  (i) the trademark or the intellectual property rights of the domain
name registrant in the domain name;
  (ii) whether the domain name is the legal name or the nickname of the
registrant;
  (iii) the prior use by the registrant of the domain name in
connection with the bona fide offering of any goods or services;
  (iv) the registrant's legitimate noncommercial or fair use of the
mark at the site accessible under the domain name;
  (v) the registrant's intent to divert consumers from the mark owner's
online location in a manner that could harm the mark's goodwill, either
for commercial gain or with the intent to tarnish or disparage the
mark, by creating a likelihood of confusion as to the source,
sponsorship, affiliation or endorsement of the site;
  (vi) the registrant's offer to sell the domain name for financial
gain without having used, or having an intent to use, the domain name
in the bona fide offering of goods or services or the registrant's
prior conduct indicating a pattern of such conduct;
  (vii) the registrant's intentional provision of material, false and
misleading contact information when applying for the registration of
the domain name, intentions, failure to maintain accurate information,
or prior conduct indicating a pattern of such conduct;
  (viii) the registrant's registration of multiple domain names that
are identical or similar to or dilutive of another's trademark; and

  (ix) the extent to which the mark is or is not distinctive.
  Significantly, the legislation expressly states that bad faith shall
not be found ``in any case in which the count determines that the
person believed and had reasonable grounds to believe that the case of
the domain name was a false use or otherwise lawful.'' In other words,
good faith, innocent or negligent uses of a domain name that is
identical or confusingly similar to another's mark or dilutive of a
famous mark are not covered by the legislation's prohibition.
  In short, registering a domain name while unaware that the name is
another's trademark would not be actionable. Nor would the use of a
domain name that contains a trademark for purposes of protest,
complaint, parody or commentary satisfy the requisite scienter
requirement.
  Bad-faith intent to profit is required for a violation to occur. This
requirement of bad-faith intent to profit is critical since, as
Professor Litman pointed out in her testimony, our trademark laws
permit multiple businesses to register the same trademark for different
classes of products. Thus, she explains:

       Although courts have been quick to impose liability for bad
     faith registration, they have been far more cautious in
     disputes involving a domain name registrant who has a
     legitimate claim to use a domain name and registered it in
     good faith. In a number of cases,

[[Page S15026]]

     courts have refused to impose liability where there is no
     significant likelihood that anyone will be misled, even if
     there is a significant possibility of trademark dilution.

  In civil actions against cybersquatters, the plaintiff is authorized
to recover actual damages and profits, or may elect before final
judgment to an award of statutory damages of not less than $1,000 and
not more than $100,000 per domain name, as the court considers just. In
addition, the court is authorized to forfeit, cancel, or transfer the
domain name to the plaintiff. To reduce frivolous litigation and the
risk of reverse domain name hijacking, the court is authorized to award
courts and attorneys' fees to the prevailing party.

  In Rem Actions. The bill would also permit an in rem civil action to
be filed by a trademark owner in the judicial district in which the
registrar, registry or other domain name authority that actually
registered or assigned the domain name is located. Such an action may
be filed only in circumstances where the domain name violates the
owner's rights in the trademark and where the court finds that (1) the
trademark owner was not able to obtain in personam jurisdiction over
the domain name registrant; or (2) the owner through due diligence was
not able to find the domain name holder to bring an in personam civil
action by sending notice to the registrant at the postal and email
address provided to the registrar and publishing notice as the court
may direct promptly after filing the action.
  The remedies of an in rem action are limited to a court order for
forfeiture or cancellation of the domain name or the transfer of the
domain name to the trademark owner. To protect the domain name
registrant, the registrar or registry shall not transfer, suspend, or
modify the domain name during the pendency of the action except as the
court may order. By contrast to the House-passed version of this
legislation, under the legislation passed today, a trademark holder
would be permitted to file an in rem action only when in personam
jurisdiction cannot be exercised.
  In Porsche Cars North American Inc. v. Porsche.com, 51 F. Supp. 2nd
707, the court dismissed an in rem action against a domain name, even
though Network Solutions Inc. had surrendered the underlying domain
name registration documents to the court to give it control over the
``res.'' The court held that in rem actions against allegedly diluting
marks are not constitutionally permitted without regard to whether in
personam jurisdiction may be exercised, The court explained:

       Porsche correctly observes that some of the domain names at
     issue have registrants whose identities and addresses are
     unknown and against whom in personam proceedings might be
     fruitless. But most of the domain names in this case have
     registrants whose identities and addresses are known, and
     who rightly would object to having their interests
     adjudicated in absentia. The Due Process Clause requires
     at least some appreciation for the difference between
     these two groups, and Porsche's pursuit of an in rem
     remedy that fails to differentiate between them at all is
     fatal to its Complaint.

  This legislation does differentiate between those two different
categories of domain name registrants and limits in rem actions to
those circumstances where in personam jurisdiction cannot be obtained.
  Liability Limitations. The bill would limit the liability for
monetary damages and, in certain circumstances, for injunctive relief
of domain name registrars, registries or other domain name registration
authorities for any action they take to refuse to register, remove from
registration, transfer, temporarily disable or permanently cancel a
domain name, where the action is taken pursuant to a court order or in
the implementation of reasonable policies prohibiting the registration
of domain names that are identical or confusingly similar to another's
trademark, or dilutive of a famous trademark.
  Prevention of Reverse Domain Name Hijacking. Reverse domain name
hijacking is an effort by a trademark owner to take a domain name from
a domain name registrant who registered the domain name legitimately
and in good faith. There have been some well-publicized cases of
trademark owners demanding the take-down of certain web sites set up by
parents who have registered their children's names in the .org domain,
such as two year old Veronica Sam's ``Little Veronica'' website and 12
year old Chris ``Pokey'' Van Allen's web page.
  In order to protect the rights of domain name registrants in their
domain names, the legislation provides that registrants may recover
damages, including costs and attorney's fees, incurred as a result of a
knowing and material misrepresentation by a person that a domain name
is identical or similar to, or dilutive of, a trademark. Moreover,
should the domain name registrant prevail in a suit for cybersquatting,
the registrant as the prevailing party is authorized to award costs and
attorneys' fees.

  In addition, a domain name registrant, whose domain name has been
suspended, disabled or transferred, may sue upon notice to the mark
owner, to establish that the registration or use of the domain name by
the registrant is lawful. The court in such a suit is authorized to
grant injunctive relief, including the reactivation of a domain name or
the transfer or return of a domain name to the domain name registrant.
  Personal Names. Commercial sites are not the only ones suffering at
the hands of domain name pirates. This issue has struck home for many
in this body. The Congress is not immune: while cspan.org provides
detailed coverage of the Senate and House, cspan.net is a pornographic
site. Moreover, Senators and presidential hopefuls are finding that
domain names like bush2000.org and hatch2000.org are being snatched up
by cyber poachers intent on reselling these domain names for a tidy
profit.
  This legislation addresses this problem by making liable a domain
name registrant in a civil action for injunctive relief, including
forfeiture, cancellation, or transfer of a domain name for registering
the name of another living person with the specific intent to profit by
selling the domain name for financial gain to that person or any third
party. This provision applies only prospectively.
  In addition, the legislation directs the Commerce Department in
consultation with PTO and the Federal Election Commission to study and
report to Congress on procedures for resolving disputes over personal
names registered as domain names and to collaborate with ICANN on these
procedures.
  Cybersquatting is an important issue both for trademark holders and
for the future of electronic commerce on the Internet. Any legislative
solution to cybersquatting must tread carefully to ensure that
authorized remedies do not impede or stifle the free flow of
information on the Internet. In many ways, the United States has been
the incubator of the World Wide Web, and the world closely watches
whenever we venture into laws, customs or standards that affect the
Internet. We must only do so with great care and caution. Fair use
principles are just as critical in cyberspace as in any other
intellectual property arena. In my view, this legislation respects
these considerations.
  Mr. HATCH. Mr. President, I am pleased to rise today as the Senate
finishes its consideration of the last in a package of four very
important intellectual property related ``high-tech'' bills that Senate
Leahy and I introduced earlier this year. Three of those bills--the
``Trademark Amendments Act of 1999,'' the ``Patent Fee Integrity and
Innovation Protection Act of 1999,'' and a Copyright Act technical
corrections bill--were passed by the House and Senate and signed into
law in August of this year. The fourth of those bills--the ``Digital
Theft Deterrence and Copyright Damages Improvement Act'' (S. 1257)--was
passed by the House with an amendment and returned to the Senate. Each
of these bills is designed to promote the continued growth of vital
sectors of the American economy and to protect the interests and
investment of the entrepreneurs, authors, and innovators who fuel their
growth.
  Technology continues to be the driving force in the American economy
today, and American technology is setting new standards for the global
economy, from semiconductor chip technology, to computer software,
Internet

[[Page S15027]]

and telecommunications technology, to leading pharmaceutical and
genetic research. In my own state of Utah, these information technology
industries contribute in excess of $7 billion each year to the State's
economy and pay wages that average 66 percent higher than the state
average. Their performance has placed Utah among the world's top ten
technology centers according to Newsweek Magazine. Similar success is
seen in areas across the country, with the U.S. being home to seven of
the world's top ten technology centers and with American creative
industries now surpassing all other export sectors in foreign sales and
exports.
  Underlying all of these technologies are the intellectual property
rights that serve to promote creativity and innovation by safeguarding
the investment, effort, and goodwill of those who venture into these
fast-paced and volatile fields. Strong intellectual property
protections are particularly critical in the global high-tech
environment where electronic piracy is so easy, so cheap, and yet so
potentially devastating to intellectual property owners--many of which
are small entrepreneurial enterprises. In Utah, 65 percent of these
companies have fewer than 25 employees, and a majority have annual
revenues of less than $1 million. Intellectual property is the
lifeblood of these companies, and even a single instance of piracy
could drive them out of business. What's more, without adequate
international protection, these companies would simply be unable to
compete in the global marketplace.
  That is why we enacted a number of measures last year to provide
enhanced protection for intellectual property in the new global, high-
tech environment. For example, the Digital Millennium Copyright Act
(DMCA) implemented two new World Intellectual property Organization
Treaties setting new global standards for copyright protection in the
digital environment. We also paved the way for new growth in online
commerce by providing a copyright framework in which the Internet and
other new technologies can flourish.

  The ``Digital Theft Deterrence and Copyright Damages Improvement
Act'' builds upon those protections by raising the Copyright Act's
limit on statutory damages to make it more costly to engage in cyber-
piracy and copyright theft. Section 504(c) of the Copyright Act
provides for the award of statutory damages at the plaintiff's election
in order to provide greater security for owners, who often find it
difficult to prove actual damages in infringement cases--particularly
in the electronic environment--and to provide greater deterrence for
would-be infringers. The current provision caps statutory damages at
$20,000 ($100,000 in cases of willful infringement), which reflects
figures set in statute in 1988 when the United States joined the Berne
Convention. The combination of more than a decade of inflation and
revolutionary changes in technology have rendered those figures largely
inadequate to achieve their aims. The bill before us updates these
statutory damage provisions to account for both these factors.
  Under the bill, the cap on statutory damages is increased by 50
percent, from $20,000 to $30,000, and the minimum is similarly
increased from $500 to $750. For cases of willful infringement, the cap
is raised to $150,000. This will not mean that a court must impose the
full amount of damages in any given case, or even that it will be more
likely to do so. In most cases, courts attempt to do justice by fixing
the statutory damages at a level that approximates actual damages and
defendant's profits. What this bill does is give courts wider
discretion to award damages that are commensurate with the harm caused
and the gravity of the offense. At the same time, the bill preserves
provisions of the current law allowing the court to reduce the award of
statutory damages to as little as $200 in cases of innocent
infringement and requiring the court to remit damages in certain cases
involving nonprofit educational institutions, libraries, archives, or
public broadcasting entities.
  The House of Representatives amend the bill to include an amendment
to the ``No Electronic Theft (NET) Act.'' The NET Act--enacted to curb
digital piracy by expanding criminal copyright infringement to include
certain electronic infringements done without an intent to profit--
directed the U.S. Sentencing Commission to revise the sentencing
guidelines for crimes against intellectual property to ensure that the
applicable guideline range is sufficiently stringent to deter such
crimes and to provide for consideration of the retail value and
quantity of the infringed upon items with respect to which the crime
against intellectual property was committed. This directive, and its
specificity, reflected the concern on the part of Congress that the
existing guidelines' reliance on the value of the infringing items
(i.e., the street value of a bootlegged video) both underestimates the
true economic harm inflicted on copyright owners and results in
penalties that are so disproportionately low that U.S. attorneys are
simply unwilling to prosecute such cases. Despite Congress' directive,
the old guidelines remain in place unamended. The result is that today,
nearly two years later, there has been only one case brought under the
NET Act, and electronic piracy continues as a significant and growing
concern.
  The House amendment to S. 1257 would revise the outstanding NET Act
directive to require the Sentencing Commission to amend the sentencing
guidelines to provide an enhancement based upon the retail price of the
legitimate items that are infringed upon and the quantity of the
infringing items, as well as to require the Commission to act within a
set time. While the proposed revision is consistent with Congress'
intent to strengthen the sentencing guidelines applicable to
intellectual property-related crimes and to better reflect the economic
harm in cases of electronic piracy, there was some concern that the
amended guidelines would overstate economic harm or have other
unintended consequences with respect to infringements not involving
digital reproductions.
  The amendment Senator Leahy and I are offering today--which is the
result of many hours of discussions and the subject of widespread
agreement--will leave the existing NET Act directive unchanged, but
will require the Commission to act on that directive within the later
of 120 days from the bill's enactment or 120 days from the first date
on which there are sufficient voting members of the Sentencing
Commission to constitute a quorum. I expect that the Sentencing
Commission will move expeditiously once its commissioners are in place
to complete revision of the applicable sentencing guidelines as
directed by the NET ACT, and that it will do so in a manner that is
consistent with Congress' intent to provide improved deterrence in this
area.
  In sum, this bill is an important high-tech measure that will spur
creativity and enhance protection for American copyrighted works at
home and abroad. I want to thank Senator Leahy for his assistance,
cooperation, and leadership in this process, and I look forward to the
Senate swiftly passing this bill with the Hatch-Leahy Amendment.
  Mr. BAYH. Mr. President, For years the American people have become
increasingly cynical about our federal government and apathetic about
political participation. There are many reasons for this unfortunate
state of affairs. This year's budget exemplifies several.
  One reason is our inability to do what every family and business must
do, balance our budget. After years of large, chronic deficits, last
year we finally, if barely, balanced the federal budget. If great care
is not taken, the budget will not be balanced for long.
  Another reason is Washington's unwillingness to be honest with the
American people. This budget is only the latest example. Proponents
claim it is balanced. It is not. They say it does not raid social
security, but it does. It purports to meet certain ``emergencies'',
when no reasonable person could possibly consider them such. It's time
we ended this ``business as usual'' in Washington and began to regain
the trust of the American people.
  I oppose this bill because it spends too much and uses gimmicks that
will make future budgets even more difficult. It ignores the greatest
financial challenge facing our nation, entitlement reform, and makes
matters even worse by taking money from the Social Security Trust Fund
to pay for spending today. It foreshadows a return of

[[Page S15028]]

chronic deficits. If we must resort to such foolishness when times are
good, what will happen when times are tough? It makes the prospect of
meaningful tax cuts much more remote because it spends the surplus and
then some.
  There are circumstances that could justify my support for this budget
and some of the items that I object to. But none exist now. If
meaningful entitlement reform had been included. If the economy were
weak and the gimmicks were only temporary expedients, not the permanent
fixtures they promise to be. If we had a few more years, not just one,
of balanced budgets under our belt. There are several good things in
this budget, things I strongly support: funding for 100,000 additional
teachers in our classrooms, putting 50,000 additional police officers
on our streets, relief for hospitals and other providers from excessive
Medicare cuts, enhanced Land and Water Conservation funds, expanded
biomedical research through NIH, expanded Head Start and increased
After School Care.
  All of these have merit. All should be done. But we must have the
honesty and integrity to pay for them, or the restraint to wait until
we can, and not just perpetuate the cynicism created by annual budget
charades.
  I look forward to voting for a future budget. One that preserves and
strengthens the foundation of financial security so important to our
nation's well-being. Even more, I look forward to that day when this
Congress enjoys the respect and admiration of our fellow citizens. This
budget will not hasten that day.
  Mrs. LINCOLN. Mr. President, today is a historic day in the United
States Senate. With the inclusion of the Superfund Recycling Equity Act
in the 1999 Omnibus Appropriations Bill, we have righted a wrong to the
recycling industry of this Nation. We have removed the Superfund bias
against recycled materials and set this country back on a path to
promoting reuse of all recyclable materials. The Superfund Recycling
Equity Act of 1999 will finally place traditional recyclable materials
which are used as feedstocks in the manufacturing process on an equal
footing with their virgin, or primary feedstock, counterparts.
Traditional recyclables are made from paper, glass, plastic, metals,
batteries, textiles, and rubber.
  Mr. President, we have been working to right this wrong for over six
years. During the 103d Congress, I first introduced a bill to relieve
legitimate recyclers of scrap metal from unintended Superfund
liability. The bill was developed in conjunction with the recycling
industry, the environmental community, and the Administration. We
worked closely together and consistently agreed that liability relief
for recyclers is necessary and right. The language in this bill is the
culmination of a process that we have been working on since 1993.
  As I'm sure you can see, Mr. President, the push to relieve these
legitimate recyclers of this unintended liability has received broad,
bipartisan support. This bill has received 67 co-sponsors in the Senate
this year and thanks to the strong leadership of Senators Lott,
Daschle, Chafee, and Warner, we have successfully brought this
important piece of legislation to the floor.
  Mr. President, as the sponsoring member of this legislation when I
was a member of the House of Representatives, I would like to make a
couple of important points. First, this Superfund Recycling Equity Act
is both retroactive and prospective. Slightly different standards must
be met for recyclers to be relieved of Superfund liability for
recycling transactions that occurred prior to the date of enactment
than for those that occur after the date of enactment. But in either
scenario, legitimate recyclers of paper, glass, plastic, metals,
textiles, and rubber will no longer be treated as if they were
``arranging for the disposal'' of materials containing hazardous
substances each time they sell their materials as manufacturing
feedstocks. Rather, they will be treated as if they were selling a
product, which is the same standard to which suppliers of virgin
materials are held. Virgin materials are in direct competition with
recyclables and this legislation will help to increase recycling in our
nation.
  Recognizing that this issue has been the focus of much litigation,
the Congress intended that the recycling situation be clarified through
the Superfund Recycling Equity Act. That is why we have written this
legislation in such a fashion that virtually all lawsuits that deal
with recycling transactions of paper, glass, plastic, metals, textiles,
and rubber are extinguished by this legislation. Only those lawsuits
brought prior to enactment of this legislation directly by the United
States government against a person will remain viable. All other
lawsuits brought by private parties, or against third party defendants
in lawsuits originally brought by the U.S. Government will no longer
proceed under this legislation. This will resolve the inequities
suffered by recyclers in a quick, fair, and equitable manner.
  It should also be reiterated that this bill addresses the product of
recyclers, that is the recyclables they sell which are utilized to make
new products. This does not affect liability for contamination that is
created at a facility owned or operated by a recycler. Neither does it
affect liability related to any process wastes sent by a recycler for
treatment or disposal. In order to assure that only bonafide recycling
facilities benefit from this bill, a number of tests have been
established within the bill by which liability relief will be denied to
sham recyclers.
  With the passage of this important legislation, we have taken a bold
step in the right direction for America. We have taken a step to
promote legitimate recycling and to put recycled materials on an equal
footing with new materials.
  Thank you, Mr. President.
  Mr. DeWINE. Mr. President, as original co-sponsors of the Safe Senior
Assurance Study Act of 1999 (S. 818), Senator Reid and I wish to
express, for the record, our gratification for the language contained
in the conference report on H.R. 3194 concerning physician supervision
of anesthesia services under Medicare's Conditions of Participation.
  We read the report as calling upon the Secretary of Health and Human
Services to base her determination as to appropriate supervision
standards on sound scientific outcome data--a principle which is at the
core of S. 818, which was to assure that Medicare beneficiaries will
continue to receive the highest quality medical care--one which I am
sure is shared by every member of this body--and the Senator from
Nevada and I think adoption of the report will help us attain this
objective.
  Preliminary data from recent outcome research has suggested that
supervision of anesthesia care by physicians trained in that discipline
represents an important factor in anesthesia safety, and we want to be
certain that the Secretary takes the final results of this research
into account. Medicare beneficiaries have resoundingly said, in
response to recent national surveys, that they favor retention of the
current supervision rule, and in our view, any change in that rule must
be supported by scientific data showing that anesthesia safety for our
nation's seniors would not be impaired. We congratulate the committees
with jurisdiction over Medicare in the House and Senate for their clear
commitment to this view.
  Mrs. MURRAY. Mr. President, as the Senate finally concludes its work
for the legislative year, I want to outline my position on a few of the
final issues. Unfortunately, I needed to travel back to Washington
state to attend the funeral of my good friend and mentor, Pat McMullen,
and missed three votes.
  Before leaving, I voted in favor of the ``motion to proceed'' to the
omnibus appropriations bill, which also included fixes to the Balanced
Budget Act of 1997 and the tax extenders package. With that vote, I
registered my support for this important funding and corrections bill.
I also would have voted in favor of the Work Incentives Act.
  First, I would like to address just some important provisions in the
omnibus appropriations bill. There are many things that we do here that
have little direct impact on the lives of real people and real
families. However, this legislation is one of those times when we act
to provide real help and real hope to working families, children and
our senior citizens.
  The package that we are about to enact, provides an additional $2
billion

[[Page S15029]]

investment in the National Institutes of Health (NIH). There are few
people in this country who are not touched in some way by the research
supported by NIH. An additional $2 billion keeps us on track to
doubling our investment in medical research. Research that saves lives
and prevents human suffering. Our investment has already brought us
closer to finding a cure for devastating diseases like Parkinson's,
leukemia, heart disease, and breast cancer. We must continue this
commitment as this investment is about saving dollars and lives. The
impact on Washington state is also significant. I am proud of the fact
that Washington state is one of the top recipients of NIH grants. The
outstanding research being conducted at research institutions like the
University of Washington and the Fred Hutchinson Cancer Research Center
are known throughout the world. We are truly a world leader in medical
research.
  This appropriations package will also provide additional resources to
improve access to quality health care for the uninsured and the most
vulnerable. The additional funding for the Centers for Disease Control
(CDC) and the additional $100 million provided for Community Health and
Migrant Health Care Centers provide a critical health care safety net
for those working families who simply cannot afford insurance. There
are more than 80 clinics in Washington state providing quality,
affordable health care services who will be able to expand and meet the
growing needs of the uninsured populations.
  I am pleased we have been successful in providing, for the first
time, a direct appropriation to support poison control efforts and
education and training for Children's Hospitals. I have been a long
time proponent of these efforts and recognize the importance of this
investment in our children.
  Overall, this appropriations package includes a $34.5 billion
investment in health care programs. This investment will strengthen the
public health infrastructure, provide essential prevention and
treatment services to individuals with mental illness and ensure that
our senior citizens are not forgotten. The additional $45 million
provided to support Older Americans Act programs ensures that we can
honor our commitment to our nation's elderly by providing important
services like nutritional assistance, employment training, respite
care, in-home care, and abuse prevention.

  In addition, as part of this appropriations bill, we have succeeded
in saving quality health care for millions of Medicare beneficiaries.
The corrections to the Balanced Budget Act address the unintended
consequences of the reductions called for in 1997. Then, we anticipated
a total of $100 billion over five years to ensure Medicare's solvency.
Unfortunately, our estimates have proven incorrect and we were facing
well over $200 billion in reductions which are impacting quality care
for millions of seniors and the disabled. The BBA97 corrections provide
additional resources for home health care, skilled nursing facilities,
nursing homes, hospitals, cancer treatment centers, teaching hospitals
like the University of Washington, community health care centers,
rehabilitation services, and health maintenance organizations. This one
time correction will prevent the closing of facilities or home health
care agencies and does not jeopardize our goal of solvency for the
Medicare Trust Fund. I know from my own health care providers and my
own hospitals what this fix means. I also know that without it, rural
health care was in real jeopardy. I told my constituents that I would
not leave for the year until we acted to address the looming crisis.
This has been accomplished in a bipartisan and comprehensive manner.
  I would also like to address the tax extenders package included in
this bill. I generally support the tax extenders package. It includes
the expansion of some tax credits that I have strongly supported over
the years. First, the research and experimentation tax credit
represents a critical investment for our nation. If we are to continue
creating more and higher-paying jobs for American workers, we must
encourage the business community to invest in research and development.
This bill does just that. I have cosponsored two bills to make the R&E
tax credit permanent, so I look forward to working with my colleagues
to make that happen.
  I am also pleased this legislation includes extensions of the
Welfare-to-Work Tax Credit and the Work Opportunity Tax Credit, which
help us move toward our goal of ensuring that all Americans benefit
from the new economy.
  This extenders package also includes an extension of employer
provided educational assistance. I am disappointed the package does not
include compensation for graduate school assistance. I believe this
commission is short-sighted. At a time when the American economy is so
rapidly changing, we need to ensure that our workforce is able to meet
the demands of the new economy.
  Our tax code should also reflect our commitment to cleaner energy.
While this package extends the wind and biomass tax credit, it does not
expand the definition of biomass to include open loop biomass.
Meanwhile, it expands the code to include incentives for the production
of energy from chicken waste. I have no doubt that some of my
colleagues are trying to address legitimate animal waste issues in
their states. However, if the code is to be expanded, it should be
expanded to include open loop biomass. If Congress considers major tax
legislation next year, this should be a top priority.
  While the efforts I have mentioned above help businesses and the
poor, the bill also helps middle class Americans. In 1997, we passed
important non-refundable tax credits, like the child tax credit, that
have greatly benefitted the middle class. This legislation will ensure
families can continue to use these credits without being affected by
the alternative minimum tax.
  Finally, the Senate passed another piece of important legislation
today: the Work Incentives Act. The WIA bill rewards those disabled
individuals who want to go back to work but face the prospect of
falling off the so called ``health care cliff.'' We have been
successful in treating many illnesses and injuries that once
permanently disabled workers. They may not be cured but can be
productive. Unfortunately, if they do try and return to work they lose
their link to life, their health insurance. This legislation, of which
I am proud to have been an original cosponsor, will allow workers to
return to work and continue to receive Medicare. It will also allow
many to buy-in to Medicaid. This legislation is not just about giving
people the chance to return to some kind of productive life. It is
about saving precious dollars as well. Workers who give up their Social
Security disability payments to go back to work will be paying taxes
and contributing to the Social Security and Medicare Trust Fund. This
is a win-win for all of us. It is also the kind of policy that simply
makes sense. People should not be penalized for trying to go back to
work.
  Mr. President, I have voted in support of the motion to proceed to
this omnibus appropriations, B.B.A. of '97, and tax extenders package.
I am particularly pleased we have been able to secure yet another year
of commitment to our children by helping reduce class sizes in the
early grades. I will be working hard to ensure this important program
is authorized in the Elementary and Secondary Education Act next year.
I must also note extreme disappointment in the decision to pit United
Nations dues against women's reproductive health care. I remain
committed to family planning throughout the world and will be working
with the administration to ensure the United States continues to lead
the way in protecting women's health, including our reproductive
health.
  Mr. ABRAHAM. Mr. President, I rise today to voice my strong support
for this final Appropriations package. This is a good package that
protects the Social Security surplus from being raided to pay for non-
Social Security spending, that provides sufficient funds for important
national programs, and which addresses critical issues specifically for
Michigan. I trust that the President will be able to sign this quickly
and get these Fiscal Year 2000 funds to the programs that will disburse
them to Michiganians as soon as possible.
   Mr. President, I am confident that this package will not raid the
Social Security surplus as has been the norm for almost 30 years. The
Congressional Leadership and the Administration

[[Page S15030]]

have crafted a package of appropriations and offsets that will not
touch the Social Security surplus The precise bookkeeping agreed upon
by the Administration and Congress used in this bill will help regulate
how these funds are actually spent by the government, so that we don't
spend the Social Security surplus. These aren't gimmicks, but finely
crafted tools necessary for the Office of Management and Budget to
ensure that bureaucrats don't spend their funds faster than Congress
intended, so as to protect the Social Security surplus.
  However, for those that are concerned that such tools could
potentially be insufficient to control the rate of spending, and may in
fact lead to the government dipping into the Social Security surplus, I
will carefully track the revenue and outlay totals for the Federal
Government over the next few months. And if it appears that we are
falling behind in maintaining a sufficient buffer to protect the Social
Security surplus, then I will immediately introduce and push for as
large of a rescission package as necessary to prevent that from
occurring. But that, in my opinion, will not be necessary. Already for
the first month of Fiscal Year 2000, the Congressional Budget Office is
reporting that we are running $6.4 billion ahead of last year, or
almost $77 billion more in net revenue than last year. Considering the
CBO estimated that net revenues would actually drop by $1 billion
between Fiscal Years 1999 and 2000, I believe we will have more than
enough of a non-Social Security surplus buffer to accommodate even the
worst case assumptions that CBO may put forward.
  As a specific note, Mr. President, one of the tools used to control
spending in this package is an across-the-board 0.38 percent cut in
discretionary spending. Although I would rather see specific cuts to
achieve the $1.3 billion in fiscal discipline provided by this cut,
such as cutting in half the funding for the Space Station, this is a
modest enough cut to be palatable, especially considering the
significant latitude given the executive agencies in finding these
cuts. However, because of the vagaries of the budget process, the pay
of Congressional Members has been exempted from this cut. I cannot
support such unequal treatment, and declare that I will return an equal
proportion of my Senatorial pay to the Department of Treasury. Nothing
else would be fair.
  But this package is not just about what it does not do. Mr.
President, this appropriations package does a great deal of good as
well. It increases funding for Head Start by over 10%, while providing
over $35 billion for education in general, including funds for 100,000
new teachers while also significantly expanding the discretion local
school districts will have to use that money for teacher testing and
quality training. It will put 50,000 more police on our streets as well
as providing over $2.1 billion for assistance programs to local law
enforcement agencies. The National Institute of Health will see its
funding increased by 15% to almost $18 billion, while important high-
tech legislation that I sponsored to stop the poaching of corporate and
identifiable World Wide Web address names by unscrupulous profiteers
and carpet-baggers does not continue unimpeded.
  And maybe most significantly, the unintended effects upon Medicare
and Medicaid of the Balanced Budget Act of 1997, as well as the onerous
additional regulations levied by the Health Care Financing Agency in
implementing that Act, will be softened through the provision of over
$27 billion in additional health care funds over the next 10 years.
This will provide specific relief for Michigan's hospitals by easing
the reductions in the reimbursements they receiving for treating our
Medicare beneficiaries in Michigan, and thereby expanding the access
for quality medical care. It will also increase the unrealistically low
reimbursement rates set for Skilled Nursing Facility care, while also
ensuring that the arbitrary $1,500 per patient cap on physical and
rehabilitative therapy set by the Administration is not allowed to deny
our seniors the help they need to recover from such debilitating
conditions as strokes and severe heart conditions. It improves the
ability of women to receive pap smear tests, provides greater access to
renal dialysis treatment, while also making immunosuppressive drugs
more readily available. And it provides very much needed protection for
Rural Health Clinics and Federally Qualified Health Centers from
capricious reductions in their reimbursements, thereby allowing them to
protect the uninsured and Medicare dependent population that they
overwhelmingly serve.

  But, Mr. President, this package is good for Michigan is well as our
nation. A number of issues that significantly affect my constituents
are addressed in this package. Our unique Great Lakes environment is
protected through the continued funding of the Great Lakes
Environmental Research Laboratory, increased funding for the Great
Lakes Fishery Commission, Sea Lamprey control, and Sea Grant Research
funds, as well as funding for a new simulator at the Great Lakes
Maritime Academy in Traverse City to ensure our commercial shipping
maintains its peerless safety record. This appropriations package funds
worthy projects such as Detroit's Focus:HOPE information technology
training program for the city's poorest residents, Central Michigan's
charter school and education performance institute, Northern Michigan's
Olympics Training Facility, and almost $2.5 million in funding to
protect and preserve Isle Royale National Park and Keweenaw National
Historical Park. This bill brings new Tribal funding for a new band of
the Pottawatomi Indians and $15 million more in PILT (Payment in Lieu
of Taxes) funds which are desperately needed by Michigan's more rural
counties. And on the international front, this package provides almost
$2 million to support the Middle East Peace Process through the Wye
River Accord agreement, as well as a number of policy and funding
initiatives overseas such as continued support for Armenia in its
dispute over Nagorno-Karabakh and the further development of education
and infrastructure in Lebanon.
  Mr. President, many will try to make political hay out of opposing
this bill for this or that various reason. But on the whole, this final
appropriations package achieves three very important goals: it stops
the 30-year raid by big Washington spenders on the Social Security
Trust Fund, it adequately funds important national priorities, and it
addresses several specific programs in Michigan important to my
constituents. We were sent to Washington to govern, Mr. President, and
at this point in the session, I asked myself if I was going to be an
effective legislator, or simply a politician. I'm glad I chose the
former in supporting this bill.
  Mr. President, I yield the floor.
  Mr. BINGAMAN. Mr. President, the appropriation for the Department of
Education includes an additional $134 million, added during final
negotiations over the bill, to promote school accountability and
improvement under Title I of the Elementary and Secondary Education Act
of 1965, which funds educational services to educationally
disadvantaged children. These funds will provide critical resources to
schools most in need--those in need of improvement and identified for
corrective action under Title I.
  Dedicated funds are necessary to develop improvement strategies and
to hold schools accountable for continuous student improvement. The
federal government directs over $8 billion dollars of federal funding
to provide critical support programs for disadvantaged students under
Title I, but the accountability provisions in Title I have not been
adequately implemented due to insufficient resources. Title I
authorizes state school support teams to provide support for schoolwide
programs and to provide assistance to schools in need of improvement
through activities such as professional development or identifying
resources for changing instruction and organization. In 1998, only
eight states reported that school support terms have been able to serve
the majority of schools identified as in need of improvement. Less than
half of the schools identified as being in need of improvement in 1997-
98 reported that this designation led to additional professional
development or assistance. Schools and school districts need additional
support and resources to address weaknesses soon after they are
identified, promote a progressively intensive range of interventions
and continuously assess the results of interventions.
  The money provided in this appropriations bill can be used to ensure

[[Page S15031]]

that school districts have necessary resources available to implement
the corrective action provisions of Title I, by providing immediate,
intensive interventions to turn around low-performing schools. The
types of intervention that the school district could provide using
these funds include:
  (1) Purchasing necessary materials such as up-to-date textbooks,
curriculum, technology;
  (2) Providing intensive, ongoing teacher training.
  (3) Providing access to distance learning;
  (4) Extending learning time for students--after school, Saturday or
summer school--to help students catch up;
  (5) Providing rewards to low-performing schools that show significant
progress; and
  (6) Intensive technical assistance from teams of experts outside the
school to help develop and implement school improvement plans in
failing schools. The terms would determine the causes of low-
performance--for example, low expectations and an outdated curriculum,
poorly trained teachers, unsafe conditions) and assist in implementing
research-based models for improvement.
  The portion of the bill relating to these additional funds also
requires that school districts give students in Title I schools the
option of transferring to another public school if the schools they
attend have been identified as in need of improvement. This requirement
applies only to districts that receive a portion of this additional
money, and not to districts that do not accept these additional funds.
While I have a bill that is supportive of right to transfer at the
corrective action stage of the Title I accountability system, it is my
understanding that the language in this appropriation bill apples only
to schools accepting funding from this new funding source of $134
million.
  Mr. BAUCUS. Mr. President, it is very unfortunate that the Senate
finds itself in virtually the same position as we did last year with
appropriations matters. As my colleagues will recall, we voted on a
giant omnibus appropriations bill which contained eight appropriations
bills, plus numerous other authorizing legislation. It ran on for
nearly 4,000 pages and weighed in at some 40 pounds. It was called a
``gargantuan monstrosity'' by the distinguished Senator from West
Virginia, Senator Byrd.
  But it was a monstrosity not just because of its length. It was also
in the size of its insult to the democratic process, to individual
Senators, and to the people they represent.
  It was bad enough that no Senator was able to read the bill before
they were required to vote on it. Worse still was the fact the bill was
presented to the Senate in a ``take it or leave it'' form. No
amendments were permitted. Every Senator was effectively muzzled.
  I voted against that bill. Not because it didn't contain good
provisions, good for the country, and good for my State of Montana. It
did. I opposed that bill because writing such an important piece of
legislation should not be done behind closed doors among a small group
of people with no recourse for the others. I said at the time that the
process dangerously disenfranchised most Senators, House Members, and
the American people.
  Many of my colleagues agreed with my sentiments then. And there were
statements that this would not happen again. But it has.
  True, this bill is somewhat shorter. It covers only five
appropriations bills, not eight. It has fewer authorizing bills
attached to it.
  However, it still was written largely by a relatively few people,
members of the majority, representatives from the Administration, a few
members of the minority. And all behind closed doors, again.
  But the bigger danger this year is that we are passing major bills by
reference. The text of four appropriations bills and four authorizing
bills appears nowhere in this bill. Instead, this bill provides for
their enactment by referring to them by number and date of
introduction, which just so happens to be less than 48 hours ago.
  Members of the Senate do not have this language before them. Even if
we could offer amendments, how would we do it? How can you amend a bill
that is included only by reference? Even more fundamentally, will bills
that are enacted into law ``by reference'' withstand a Constitutional
challenge that they violate the presentment clause?
  The courts will have to decide the Constitutional issues. But it is
one more reason why I believe this is a very dangerous process. It
further erodes the rights of the minority, indeed the rights of all
Senators. Coming, as I do, from a state with a small population, we
depend greatly on the Senate to protect our states' interest, something
that cannot always be done in the House of Representatives, where
population determines voting power.
  Mr. President, we already face a population that is increasingly
cynical of government and those who serve it. People believe more and
more that government does not look after their interests, but only
after special interests. And the more we operate behind closed doors,
without an open, public process, the more we feed that cynicism. And
the more we encourage mistrust.
  That is not healthy for our democracy or our people. One of the best
things Montanans did when we rewrote our State constitution in 1972 was
to require open government, at all levels. It has helped keep
government officials honest and helped the people have faith in that
government. I wish this process were as open.
  Someday, I hope that the Congress will return to the open process on
appropriations bills and authorizing bills we had not so long ago. We
could debate issues, offer amendments, make compromises, win, lose. But
all in front of the people.
  But this bill goes too far in the other direction and therefore, I
cannot support it.
  Mr. ROBB. Mr. President, as we near the end of this session of
Congress, there are some accomplishments we should celebrate and some
disappointments we should work to remedy in the next session of the
106th Congress. While there are many items in the appropriations and
tax bills that benefit our nation, there are a few I'd like to
highlight. This year's final budget package will continue to provide
more crime reduction and school safety funding so our children are
safer in their neighborhoods and in their schools. It will continue our
efforts to reduce class size so our children get more individualized
attention from a top-quality teacher. And it will provide what I hope
will be the first installment of school modernization funding so that
our children's schools are safe and equipped for the future.
  With the passage of the appropriations and tax measures this session,
Congress will uphold its commitment to continue reducing crime on our
streets and in our schools. We've come a long way from the original
Senate committee bill that would have killed the COPS initiative, which
has placed 100,000 new police officers in our communities since 1994.
This year's appropriations bill provides enough funding to hire another
50,000 officers over the next few years, and it sets aside $225 million
in Department of Justice funding for school safety initiatives. The
first obligation of government is to provide for the safety of every
man, woman, and child, and I believe our funding levels for COPS and
school safety programs live up to that obligation.
  We will also be living up to the commitment we made last year to hire
100,000 new teachers so our children's class sizes are smaller and
their individual time with their teachers is greater. We made a down
payment last year and hired 29,000 teachers. This year, we will provide
$1.3 billion to states so we can keep those teachers in the classroom
and hire even more. But as we all know, school systems can't hire new
teachers if they don't have the extra classrooms. So, I'm especially
pleased that we have finally recognized the school infrastructure
crisis in America.
  The tax package we will pass today will provide an additional $800
million in zero interest bonds under the Qualified Zone Academy Bond
Initiative. These bonds will help our neediest schools renovate
buildings that are relics of the past and turn them into schools of the
future. It will help them purchase new equipment--from classroom
computers to new, safe school buses. It will help them train teachers
and develop challenging curricula to raise expectations and achievement
scores of our nation's students.

[[Page S15032]]

  The continuation of this school renovation initiative is just one
component of the school modernization bill I introduced with many
others in July, and I am grateful to so many education, labor, and
professional organizations for their unwavering support. I thank my
colleagues who co-sponsored the legislation, Rep. Charlie Rangel for
his work on similar legislation, and the administration's commitment to
ensuring that our schools are safe and modern havens for learning.
We're sending the right message to our nation's school boards,
teachers, parents, and students: that we see the leaky roofs, that we
see the cracked walls, that we see all the trailers--and that we're
willing to help.
  But there remains much unfinished business. Over 14 million children
attend schools in need of extensive repair or complete replacement.
Twelve million children attend schools with leaky roofs, and 7 million
children attend schools with safety code violations. Our schools are on
average over forty years old. They're overcrowded, they're under-
equipped with technology, and many are unsafe. In Virginia alone, there
are over 3,000 trailers being used to hold classes. In short, our
national renovation needs total $112 billion and our new construction
needs total $73 billion. Given these tremendous needs, I view the $800
million in the this year's tax package as the first installment of the
nationwide renovation and modernization of our children's schools.
  Mr. President, the other major disappointment of this session
concerns one of our nation's most important transportation arteries. I
am quite dismayed that this Congress has not lived up to its
responsibility to fund the replacement of the Woodrow Wilson Bridge.
This is the only federally owned bridge in the entire country. It is a
major gateway in the Washington metropolitan area, and a critical route
for commerce along the entire east coast. We have an obligation to
support its replacement.
  I worked closely with the administration to advance this project, and
I was gratified by the fact that funding was among the administration's
top priorities during the budget negotiations. Unfortunately, however,
Congress declined to provide funding, so we will revisit the issue next
year, when construction is scheduled to begin. We have become all too
familiar with the devastating effects of traffic jams in this area--on
our economy, on our environment, and most importantly, on our quality
of life. The unresolved matter of funding for the Woodrow Wilson
Memorial Bridge project continues to threaten the region, and I intend
to continue the fight next session to be fiscally responsible and
responsive to our region's biggest transportation need.
  Mrs. BOXER. Mr. President, the two bills we passed today--the tax
extenders bill and the Omnibus Appropriations Act--like this entire
session of Congress, can be summarized by four words: the good, the
bad, the missing, and the undone.
  Let me begin with the good, because we have achieved victories on
several important Democratic priorities. Funding for after-school
programs was more than doubled. As a result, there will be spaces for
675,000 young people.
  In another priority of mine, the days of the sweet deal for the big
oil companies will be over next March 15. At that time, the Interior
Department will finally be allowed to issue a regulation to ensure that
oil companies pay their fair share of oil royalties to the federal
government when they drill on federal land, ending the $66 million
annual loss to the taxpayers.
  I was also pleased to see a 42 percent increase in funding for the
lands program, known as the Lands Legacy Initiative. Most of this money
will be used to acquire lands and historical sites so that they can be
preserved for future generations.
  There are other good things as part of the budget agreement: funding
to reduce elementary school class sizes; putting 6600 cops on the
streets and in the schools; paying the arrears the United States owes
to the United Nations; debt relief for developing countries; full
funding for the Middle East Peace Agreement; a $2.3 billion increase in
funding for the National Institutes of Health; correcting problems with
Medicare funding that were part of the Balanced Budget Act of 1997, so
that we ensure seniors continue to have access to health care,
particularly home health care and nursing home care; a $108 million
increase in funding for nutrition assistance for pregnant women and
infants; extension of some important tax credits, including the
Research and Experimentation Tax Credit, employer-provided educational
assistance, and trade adjustment assistance; and most of the anti-
environmental riders were stripped out of the bill or were
significantly weakened.
  But, Mr. President, despite these good things, I am voting against
the bill because of the bad things as well as the things that are
missing.
  First, let me comment on the process. If the Republican controlled
Congress had done its work and passed the appropriations bills by
October 1, which is what is supposed to happen, we would not have
needed these protracted and secretive negotiations that gave undue
power to just a handful of people. As my colleague from Nebraska said,
this whole process turned government ``of the people, by the people,
and for the people'' into ``government of and by four people''.
  I want to mention three specific provisions of this bill that I
oppose. First, the funding for international family planning is
inadequate. We have had level funding for this program for four years
now. And on top of that, the omnibus appropriations bill reinstates the
so-called Mexico City policy that prevents organizations from using
their own, privately-raised money to provide abortion services or to
lobby against draconian abortion laws. Under the provisions of this
bill, the President could waive this restriction, but if he does, the
funding would be cut $12.5 billion, which could deny contraception to
over 40,000 women for an entire year.
  I was also extremely dismayed to find in this bill a provision that
would allow pharmacists to deny women in federal health plans
prescriptions for contraceptive drugs, if they claim a sort of
``conscientious objector'' status. This is an outrageous assault on the
right of women to receive the full range of health benefits.
  Also, this bill contains an absolutely unnecessary--and potentially
dangerous--across the board spending cut. This cut will affect funding
for education and health care and medical research and veterans. It is
a silly way to do business, and it is unnecessary. Congress should have
done its job and made the decisions about what is important and what is
not.
  There are also a lot of holes in this legislation, a lot of things
missing. These are things that were in there at one point or on the
table for discussion, but for some reason were taken out. I am talking
about the lack of hate crimes legislation, which passed the Senate. I
am talking about my amendment, which also passed the Senate
unanimously, to ban the sale of guns to people who are intoxicated.
There is once again no long-term, large-scale commitment to repair
America's schools. There is no prescription drug benefit under
Medicare, so that millions of senior citizens will not have to make a
choice between medicine and food. There is not enough money for after-
school programs. And the rural loan guarantee program for satellite
TV--something that is crucial to rural communities around the country--
was taken out of the bill at the request of one senator.
  In the category of the undone, this Congress will go home for the
year without having acted on several issues of enormous importance to
all Americans--things that the people have said over and over again
they want us to do. This includes: a real patients bill of rights,
common sense gun control, campaign finance reform, and an increase in
the minimum wage.
  Some will say that we could not do these things because we did not
have the money. Let me point out that if this Republican-controlled
Congress had not insisted on increasing the defense budget by about $8
billion more than the President said we needed, then we would have had
plenty of money to pay for both the well-deserved pay raise for our
servicemen and women and the priorities I have just talked about.
  So, Mr. President, I regret that this bill was not all it could have
been and that this Congress did not accomplish all that it should have.
But, I look forward to the next session in the hope

[[Page S15033]]

that we finally address the priorities of the American people.
  Mr. GRAHAM. Mr. President, to quote Yogi Berra, it's deja vu all over
again. A little less than a year ago Congress passed an Omnibus
Appropriations bill for fiscal year 1999. That legislation combined
eight separate appropriations bills and included $200 billion in
discretionary spending. Last year's Omnibus spending bill also included
$21 billion in emergency spending--$13 billion of which directly
reduced the surplus for Fiscal Year 1999 and $5 billion of which
reduced the surplus for Fiscal Year 2000. Members decried the process
that led to last year's bill, threw themselves on the mercy of the
American public asking forgiveness, and vowed that it would never
happen again.
  One senior Republican, speaking on condition of anonymity about the
level of frustration with last year's budget process, said earlier this
year: ``We are looking for ways to avoid what happened last year. We
are determined not to go through that again this year.'' Unfortunately,
Mr. President, here we are again--only worse. This year's bill clearly
demonstrates that Congress has not learned from its past mistakes.
  What makes this bill even more insidious is that we not only repeat
last year's mistakes, but in fact, build upon them with even more
creative ways to flaunt fiscal discipline. For that reason, I will
oppose it.
  Mr. President, I am not alone. I ask unanimous consent immediately
after my remarks an editorial which appeared in today's Washington Post
titled ``. . . And Brought Forth a Mouse'' be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See
exhibit 1.)
  I fully understand, Mr. President, that we work with budget
projections that are subject to revision as economic factors change. We
must base our decisions, however, using reasonable assumptions of what
will occur, not rosy expectations of what the future might bring. The
beginning of this congressional session was filled with opportunity--
opportunity brought about by 5 years of fiscal discipline. That
discipline helped to fuel a strong economy and produce the first budget
surplus in more than a generation. Indeed, budget surpluses are
projected far into the future.
  Instead of seizing this opportunity to use those resources in
improving our long-term fiscal future, Congress seems content to
fritter them away on short-term political giveaways. A strong economy
and favorable budget outlook give Congress a wonderful opportunity to
make important investments for our future. What are some of those
investments?
  Early in 1999, Democrats and Republicans stated that saving Social
Security and strengthening Medicare were the first items of business on
this year's legislative agenda. The President made this statement
during his State of the Union Address earlier this year:
  ``Now, last year we wisely reserved all of the surplus until we knew
what it would take to save Social Security. Again, I say, we shouldn't
spend any of it--not any of it--until after Social Security is truly
saved. First things first.''
  My colleagues may remember that we followed the President's statement
with a considerable amount of applause. Both commitments--extending the
solvency of Social Security and strengthening Medicare--have been
ignored. Both American political parties are identified co-conspirators
in this unsavory result. There will be no structural changes to extend
the solvency of the Social Security program. In fact, the most positive
Social Security achievement we can cite underscores our failure to
solve this important problem.
  The only meaningful step Congress has taken to improve Social
Security is an agreement not to spend the Social Security surplus--an
agreement, I might add, that we have violated to the tune of $17
billion. The culmination of these negotiations will result in a budget
that reduces the federal debt by $130 billion. That debt reduction,
however, would have been $168 billion had we remained true to our
commitment to save Social Security first. We could have reduced the
Federal debt by an additional $38 billion had we not spent the full $21
billion on-budget surplus and $17 billion of the Social Security
surplus. But even had we kept this promise, it would have done nothing
to extend the program's insolvency date of 2034. Accomplishing that
goal will require additional resources--resources that could come from
the on-budget surpluses as long as they can be preserved.
  Mr. President, we must hold true to our commitment to ensure Social
Security's solvency until 2075. Our actions on Medicare are even more
deplorable. We started this year with the goal of extending the
solvency of the Medicare Trust fund and possibly expanding the benefits
for beneficiaries, such as providing a prescription drug benefit.
Instead, however, we've gone backwards. The Medicare benefit package
has not been modernized. Efforts to rationalize the program have been
rejected.
  Finally, and perhaps most disappointingly, the solvency of the
Hospital Insurance Trust Fund has been reduced by 1 year. Estimates at
the beginning of this year placed the date of insolvency for the
Hospital Insurance Trust Fund in Fiscal Year 2015. As a result of the
unfunded additional Medicare spending included in this bill, the
insolvency date has moved forward to Fiscal Year 2014.
  Not only were we unfaithful to the commitments we made regarding
Social Security and Medicare, we missed other opportunities to make
constructive use of the on-budget surplus.
  Mr. President, we could have further strengthened the economy by
pursuing tax reform. We could have made critical investments to protect
our national treasures such as the National Park system. Or we could
have reduced the disgraceful number of Americans, particularly
children, who don't have access to health care. These proposals have
one thing in common--a bold, coherent vision. This final appropriations
bill and its blizzard of special interest handouts reflects no such
vision. It contains no bold initiatives worthy of the 21st century.
Instead it fritters away a substantial portion of the surplus--
squandering resources that could instead be used to build a better
future.
  Mr. President, how did we get here? At the beginning of the year, CBO
projected the FY 2000 on-budget surplus to be $21 billion. In May
Congress passed a supplemental appropriations bill providing $15
billion for reconstruction aid for Central America and the Caribbean,
assistance to Jordan pursuant to the Wye River accords, farm loan
assistance, and funding for our operations in Kosovo. Much of the May
supplemental bill was designated as an emergency and thus was not
offset with corresponding spending reductions or revenue increases.
  The consequence of that legislation was a $15 billion reduction in
the non-Social Security surplus--$7 billion of which reduced the FY
2000 on-budget surplus. Passage of the May Supplemental transformed a
$21 billion surplus into a $14 billion surplus. In August, Congress
passed the fiscal year 2000 Agriculture appropriations bill that
included more than $8 billion of ``emergency'' spending. Like the
Supplemental before it, these ``emergency'' funds were not offset with
corresponding spending reductions or revenue increases.
  Therefore, this spending directly reduced the FY 2000 surplus. A $14
billion on-budget surplus quickly shrunk to $6 billion.
  In October, Congress considered the appropriations bill covering the
Defense Department. Incredibly, that legislation designated funding for
routine operations and maintenance as an emergency. That designation,
as with those proceeding it, means that the no offsets were required.
No offsets, however, does not mean that the spending does not have a
real economic effect. The emergency spending included in the Defense
Appropriations bill further reduced the Fiscal Year 2000 on-budget
surplus by $5 billion, which the next column in my chart illustrates.
  Mr. President, by the end of October Congress' voracious spending
reduced the on-budget surplus from $21 billion to $1 billion. With
passage of this Omnibus appropriations bill, Congress will not only
complete its assault on the on-budget surplus but also begin its raid
on the Social Security surplus.

[[Page S15034]]

The $21 billion on-budget surplus projected for FY 2000 has vanished.
In addition, this Omnibus bill spends $17 billion of the FY 2000 Social
Security surplus.
  Mr. President, no amount of budget trickery or accounting slight of
hand can hide these facts. Those attempting to obscure this reality
will soon be exposed. At the end of the year the Congressional Budget
Office will total up the cost of our actions and tell us how they
affected the national debt. The debt will no doubt be reduced in Fiscal
Year 2000. Because of these budgetary tricks and shenanigans, however,
we will miss the opportunity to make an even more substantial reduction
in the national debt and the burden it imposes on our Nation. Worse
yet, we have already staked claims against the on-budget surpluses
projected beyond next year.
  For example, at the beginning of the fiscal year the discretionary
spending limit was $572 billion. With this bill, actual spending will
be closer to $610 billion. If we assume that Congress maintains this
level of spending--$610 billion--for each of the next ten years, CBO's
projected on-budget surplus of $996 billion shrinks by $145 billion.
These are the on-budget surpluses CBO projected in July assuming we
would adhere to the discretionary spending caps.
  The orange bars show the surpluses we can expect if we hold freeze
spending at the levels established for Fiscal Year 2000 for each of the
next four years.
  As my colleagues can see, it is increasingly unlikely that the large
on-budget surpluses over which we salivated throughout the summer will
materialize.
  In addition, this budget agreement contains other items--Medicare
spending and tax breaks--which are not offset by either spending
reductions or additional revenues.
  The Omnibus appropriations bill includes changes to the Medicare
reimbursement rules which increase Medicare spending by $1 billion in
Fiscal Year 2000 and $27 billion over the next ten years.
  That increased spending will come directly out of the Social Security
surplus in Fiscal Year 2000 and from the on-budget surplus in later
years.
  This afternoon we will consider a bill to extend certain expired
provisions of the Internal Revenue Code.
  Earlier this month, the Senate passed legislation that extended these
provisions on a fiscally responsible basis.
  That bill was fully offset, and as such, would not have jeopardized
the on-budget surplus.
  I regret that the product coming out of the Conference is not as
responsible.
  The ``extenders'' bill before us today will reduce the on-budget
surplus over the next ten years by $18 billion.
  These spending commitments--a higher discretionary spending baseline
as a result of the Fiscal Year 2000 appropriations bills, the extenders
bill and the BBA addbacks--will spend almost 20 percent of the $996
billion on-budget surplus projected for the next ten years.
  In fact, Mr. President, the additional spending as a result of the
BBA addbacks and the lost revenue from the extenders bill are likely to
completely wipe out the Fiscal Year 2001 surplus.
  CBO projects that Medicare spending will increase by $6 billion in
Fiscal Year 2001 as a result of this bill.
  The Joint Committee on Taxation estimates that the ``extenders''
legislation will reduce revenues in Fiscal Year 2001 by $3 billion.
  That $9 billion cost is greater than the $3 billion on-budget surplus
that will remain in Fiscal Year 2001 assuming spending for that year is
frozen at this year's levels.
  Mr. President, what did we buy with this torrent of spending?
  Certainly some positive things are included in this legislation.
  I am deeply concerned, however, with many of the provisions in this
gargantuan bill and their implications for our future.
  Let me give you two examples.

                              yellowstone

  Many of the decisions reflected in this agreement were made in
isolation and will have unexpected negative consequences.
  The individual operating budgets for the national parks have not been
adjusted to accommodate the full 4.8 percent federal employee pay
raise.
  Instead, their budgets reflect only a pay raise of 4.4 percent.
  The additional 0.4 percent must be absorbed through reductions in the
remainder of their budgets--principally operations and maintenance.
  The parks must absorb an additional 0.4% reduction as a result of the
across-the-board cut included in this bill.
  Yellowstone National Park's budget is $24 million--90 percent of
which goes to pay salaries.
  The combination of the pay raise shortfall and the across-the-board
cut will force a reduction of $200,000 from the operations and
maintenance accounts.
  Why is this important?
  Yellowstone National Park was included as one of this year's ten most
endangered parks by the National Parks and Conservation Association.
  It has been referred to as ``the poster child for the neglect that
has marred our national parks.''
  The policies established in this bill, combined with the previously
adopted pay raise, raise serious concerns that the quality of our
national parks will continue to decline.
  I do not allege that anyone started out with this goal, but the
consequences of this budget agreement may have that result.
  I suspect this example of Yellowstone National Park will be repeated
throughout the federal government.

                              bba addbacks

  This bill also represents a triumph of special interests.
  Having previously beaten back the Patient's Bill of Rights
legislation, the managed care industry uses this bill to further
advance its financial position.
  $8.7 billion of the $27 billion of additional Medicare spending in
this bill will go to the HMO industry.
  Mr. President, what this means is nearly one-third of the Medicare
money in this bill will go to the managed-care industry even though
they only cover one-sixth of the beneficiaries.
  This comes at a time when the General Accounting Office and Medpac
say that HMOs are being overpaid, not underpaid, by Medicare.
  I find it strange, Mr. President, that lobbyists for the managed care
industry came to Capitol Hill crying for help when they tell their
shareholders a very different story.
  Let me read excerpts from a few HMOs' recent press releases.
  For example, Pacificare said this in its press release announcing its
third quarter earnings: ``We posted strong revenue growth * * * due to
membership growth and favorable premium pricing. Our confidence in and
outlook on the future is very positive.'' (Oct. 27, 1999)
  Aetna had this to say: ``This is the seventh consecutive quarter of
growth in operating earnings per share for Aetna * * * Aetna U.S.
Healthcare continued to post solid commercial HMO membership
increases.'' (Oct. 28, 1999)
  United Health Group made the following bold proclamation: ``Our
strong results continue to be driven by a balanced combination of
growth, operating margin expansion, and capital structure enhancement.
We look for ongoing progression in these key areas as we move into and
through the year 2000.'' (Nov. 3, 1999)
  These are surprisingly upbeat statements coming from an industry that
came to Congress crying the blues.
  The Medicare section of this bill has other deficiencies.
  An opportunity for reform through competitive-bidding of the HMO
industry was cut off at the knees in a midnight assault.
  This bill includes language prohibiting the Secretary of HHS to
negotiate with durable medical equipment providers to secure better
prices for the Medicare program and Medicare beneficiaries.
  By putting off the implementation of these provisions, possibly for
years, we are taking millions of potential savings out of the pockets
of Medicare beneficiaries.
  The question members of Congress must ponder over the coming holidays
is how to avoid a repeat of this awful process next year.
  I hope that the FY 2001 budget will be one that I can support.
  In order for that to occur, next year's budget must start with a
bipartisan process.

[[Page S15035]]

  This first 10 months of this year were spent with the President and
Congress ignoring each other's existence.
  Only during the past ten days--fully 40 days after the fiscal year
end--did the two sides begin negotiating a conclusion to this year's
budget clash.
  We must break the cycle of end-of-the-year budget showdowns that
produce nothing but partisan rancor.
  We must also press for budget reforms that will ensure the bad habits
of the past two years do not become institutionalized.
  While there are many targets for reform, at the top of the list is
the need to change the manner in which we designate certain spending as
an ``emergency''.
  Two-thirds of the reduction of this year's surplus--more than $25
billion--happened because Congress overrode fiscal discipline by using
``emergency'' designations.
  Senator Snowe of Maine and I have introduced legislation that would
establish permanent safeguards to protect the surplus from questionable
``emergency'' uses.
  Specifically, that legislation would do the following:
  1. Create a 60-vote point of order that prevents non-emergency items
from being included in emergency spending bills.
  2. Create a 60-vote point of order that allows members to challenge
the validity of items that are designated as ``emergencies.''
  3. Require a 60-vote supermajority in the Senate for the passage of
any bill that contains ``emergency'' spending.
  Given that next year is a Presidential election year, it is unlikely
that much will be accomplished.
  An issue that will receive a great deal of attention in next year's
election will be how best to use the on-budget surplus.
  Several Presidential candidates have already outlined proposals that
envision using the on-budget surplus for larger goals.
  Vice President Gore supports the President's proposal for using some
of the on-budget surplus to extend the solvency of the Social Security
program.
  He has also outlined a series of steps to expand health care coverage
to the uninsured.
  Senator Bradley has championed a plan to extend health care coverage
to 95% percent of the nearly 45 million uninsured adults and children.
  Governor Bush supports cuts in marginal tax rates, reductions in the
so-called marriage penalty, and the elimination of the estate tax.
  Senator McCain would dedicate a portion of the surplus to tax cuts
and transitioning the Social Security program to one that incorporates
individual accounts.
  Incidentally, Senator McCain characterized this deal as ``a scathing,
unconscionable depiction of the way we do business in Washington.''
  Other candidates have proposals--transitioning to a flat tax,
education reform--most of which look to the on-budget surplus as a
means of financing.
  These are all significant ideas, but if Congress continues this
year's pattern in Fiscal Year 2001, they will be ideas starved for the
resources to make them a reality, whomever the people elect.
  Ultimately, the American people will provide their input on this
matter through the decision they make next November.
  Next year's budget should not short-circuit those ideas.
  Instead, the goal for next year's budget should be to protect the
surplus and therefore preserve the options available to the next
President.
  We must avoid a last minute, unfunded spending spree like that
contained in the bill before us today.
  Mr. President, it is a major disappointment that we didn't exercise
this kind of fiscal discipline in 1999.
  But when we return to inaugurate the second session of the 106th
Congress, we will have the benefit of a new century, a new millennium,
and a fresh start.
  I hope that we can use that opportunity to seize the future rather
than repeating the mistakes of the past.
  This session began with great opportunities. We had a budget surplus.
We had a strong economy. We had an opportunity to make decisions that
have long-ranging positive effects on our economy. We have largely
frittered away all of those opportunities.
  The President and the congressional leadership began the year by
joint commitment that our first priority was going to be to save Social
Security and to strengthen Medicare. What happened after we finished
the applause at the State of the Union? What has happened is we have
ignored both of those commitments.
  Social Security: No structural change. We have not extended by a
second the solvency of the Social Security program. Yes, as the Senator
from New Mexico said, we have reduced the national debt by $130 billion
as a result of funds from the Social Security trust fund. That is the
good news. The bad news is we should have reduced it by $168 billion,
which is what we would have done had we preserved all of the surplus
for strengthening Social Security and Medicare. His statement admits
the fact that $17 billion of Social Security surplus has, in fact, been
spent for purposes other than reducing the national debt and saving
Social Security.
  Medicare: We have made no structural changes in Medicare. Medicare,
in fact, has 1 year less solvency as a result of what we are doing than
it did when we started this process in January.
  How did we get here? We got here because we have frittered away $168
million surplus down to $130 billion by a series of, first, emergency
spending, and then an avalanche of budget gimmickry at the end of the
session, much of which is in the bill we are about to vote on which has
chewed up all of the non-Social Security surplus and $17 billion of the
Social Security surplus.
  What is the long-term consequence? The long-term consequence is we
have already spent $190 billion of our 10-year non-Social Security
surplus of $996 billion. One out of every $5 that we had in January for
the non-Social Security surplus we have either spent or committed in
the fiscal year. In fiscal year 2001, we have already spent all but $3
billion of the over $40 billion of the non-Social Security surplus. And
with the actions we are about to take, we are going to be into Social
Security for the next fiscal year by over $6 billion. That is what we
have done with all the opportunities that were available.
  I hope we will have learned from these lessons that we will apply
some basic principles for next year, that we will try to be more
bipartisan, that we will try to adopt some processes that will
constrain us against the kinds of actions that have led to this sorry
state of affairs this year, that we will commit we will exercise real
fiscal discipline so the American people, based on who they elect as
President in November of next year, will have an opportunity to make
some fundamental decision.
  Do they want our surplus to be used for Social Security? Do they want
it to be used for Medicare? Do they want it to be used for tax cuts? Do
they want it to be used to reduce the number of Americans who do not
have health care coverage? What are their priorities? We are spending
the money like drunken sailors and the American people are being denied
the opportunity to state their opinions as to what we should be doing
with their money.
  It is with regret, as we have repeated against what we did last year,
I must vote no on the legislation that will soon come before the Senate
as the concluding fiscal act of 1999 and hope we will do better next
year.

                               Exhibit 1

             [From the Washington Post, November 19, 1999]

                    . . . And Brought Forth a Mouse

       It is fitting that this legislative year should end with an
     almost imperceptible across-the-board spending cut that will
     not be across the board. It is hard to think of a single
     aspect of the budget that has not been seriously
     misrepresented in the past nine months of debate. There is
     always a certain amount of straying from the truth in regard
     to budgets. This year it has reached Orwellian proportions.
       The final agreement on which the House was to vote last
     night and the Senate thereafter was touted yesterday by both
     sides as a major achievement. The major achievement consisted
     of no more than passage six weeks into the fiscal year of the
     last five of the 13 regular appropriations bills on which the
     operation of the government depends. Those 13 ordinary bills
     are the only fiscal accomplishment of a Congress that began
     with lofty talk on the part of the president as well as the
     leadership of both parties of solving long-range fiscal
     problems. They solved

[[Page S15036]]

     none. The only consolation is that, by virtue of
     incompetence, they managed not to make any seriously worse,
     either.
       The Republicans crow that they came through the year
     without using the Social Security surplus to help finance the
     rest of government. But (a) that's a non-accomplishment, in
     the sense that the same IOUs are put in the trust fund
     whether the surplus is used to finance other programs or pay
     down debt. And (b) it didn't happen. They achieved the result
     on paper only, by use of gimmicks. In some cases, they simply
     denied that spending for which they voted--and which they
     busily called to the voters' attention as evidence of why
     they should be reelected--would actually occur. They
     disappeared it. In other cases, they simply kicked it over
     into next year. It will hugely compound their problems then.
     There has been much talk that a new fiscal standard has been
     obliquely adopted, whereby the rest of government, meaning
     all but Social Security, will hereafter have to live within
     its own means. That would be fine with us, but what this
     year's record suggests is not a new standard to be adhered to
     so much as a new one to be systematically lied about.
       Meanwhile, they did what they always do in writing end-of-
     session bills. They stuffed it full of goodies, using public
     funds or power to curry favor with the folks back home. There
     is fine print in the legislation meant to benefit Sallie Mae,
     the giant and decidedly non-needy Student Loan Marketing
     Association; dairy farmers; the recycling industry;
     transplant surgeons; and who knows who else. Most of these
     are provisions that, for good reason, could not pass on their
     own. The president called the agreement a ``hard-won victory
     for the American people.'' In fact, it's a shabby, showy end
     to perhaps the least productive, nastiest and most
     duplicitous session of Congress in modern memory. They should
     hang their heads as they scurry home.

  Mr. FEINGOLD Mr. President, I don't know if many of my colleagues
have actually taken the time to read the bill before us.
  If they have, they would have found some interesting provisions.
  For example, Section 1001, titled ``PAYGO Adjustments.''
  It appears at the very end of the printed text of H.R. 3194.
  There are three subsections to this provision, and from what I can
tell, this is what they do.
  The first subsection declares that the mandatory spending that was
folded into this bill--I believe mostly the provisions that restore
Medicare funding--are not to be scored against the discretionary
spending caps.
  The second subsection then declares that the Medicare funding shall
not be scored on the PAYGO ledger.
  In other words, Mr. President, the roughly $16 billion in mandatory
spending provided in the Medicare portions of this bill over the next 5
years will be completely excluded from the statutory budget rules that
require such spending to be offset.
  The last subsection, Mr. President, then zeroes out the PAYGO ledger
entirely.
  This means that no spending in this bill and none of the net cost of
the tax expenditures in the tax extenders bill--none of it--will be
counted on the PAYGO ledger.
  It won't have to be offset this year, next year, or ever.
  Mr. President, what is going on here?
  Why is this language needed?
  It is needed, Mr. President, if you don't want to pay for the
mandatory spending done in this bill or the net revenue losses in the
tax extenders bill.
  The proponents of this language may wish to argue that they are using
the budget surplus to pay for all of this.
  Mr. President, let me ask them: ``What surplus is that?''
  We did not have a surplus this past fiscal year.
  And given the track record of this Congress, when September 30, 2000
rolls around, there is an excellent chance we won't have a surplus
then, either--at least not without counting the Social Security Trust
Fund revenues.
  Mr. President, yesterday I was pleased to add my name to a measure
the senior Senator from Texas was circulating honoring among others the
Nobel Prize winning economist Milton Friedman.
  As many know, Professor Friedman made famous the phrase: ``There is
no free lunch.''
  Well, Mr. President, I must tell my colleagues that passing a law
declaring a free lunch will not make it so.
  Congress can declare that the Medicare provisions of this bill will
not cost anything, but that doesn't make it true.
  Congress can declare that the tax extenders bill will not result in
any lost revenue, but again, that will not make it true.
  Mr. President, the PAYGO Adjustments section isn't the only one that
tries to declare a free lunch.
  We see it in the indefensible use of the so-called emergency
designation.
  I'll take just one example, the decennial census.
  Mr. President, we have known for many years that there would be a
census taken next year.
  In fact, it's provided for in our Constitution.
  In a very real sense, we have known for over 200 years that there
would be a census next year.
  It comes as no surprise.
  But you wouldn't know that if you read this bill, Mr. President.
  This measure provides that nearly $4.5 billion in funding for the
census is to be declared an emergency.
  An emergency, Mr. President.
  Who are we kidding?
  Next year's census is an emergency?
  This is nothing more than a budget gimmick to avoid having to make
tough choices.
  Mr. President, I have no doubt there are other examples of the misuse
of the emergency designation in this bill.
  Over the next few weeks we will probably see news stories about just
what Congress views as an emergency.
  Mr. President, as must be painfully obvious to my colleagues by now,
the dairy provisions alone in this bill make it completely unacceptable
to me, and I will be voting against the bill for that reason.
  However, even if those provisions were not included in the
legislation, I would still oppose it, and I would oppose it in part for
the budget gimmicks that are strewn throughout it.
  Mr. President, I yield the floor.
  Mr. McCAIN. Mr. President, I cannot support this budget deal because
it spends the budget surplus, breaks our pledge to reduce the size and
intrusiveness of the government, fails to deliver the tax relief
American families deserve, and further imperils the Social Security
system upon which so many Americans depend for their retirement
security.
  The ``budget crisis'' has become an annual, end-of-the-year ritual in
which closed-door deals produce even more fodder for public cynicism
about their government. This budget deal short-changes American
taxpayers and benefits special interests, illustrating once again that
the President and a majority of the Congress would rather spend the
budget surplus on big government, special interest giveaways, and pork-
barrel spending.
  This deal makes a mockery of our obligation to responsibly exercise
the ``power of the purse'' conferred on the Congress by the
Constitution.
  It busts the budget caps set just two years ago by more than $20
billion.
  It obscures the true cost of the deal by using $36 billion in budget
gimmickry.
  It contains nearly $14 billion in everyday, garden-variety pork-
barrel spending.
  It spends every dime of the non-Social Security surplus, instead of
setting that money aside to provide tax relief to American families,
and shore up Social Security and Medicare.
  It resorts to an across-the-board budget cut to avoid dipping into
the Social Security surplus, rather than making the hard choices among
spending priorities.
  Some people have said this year's deal is not as bad as last year's
deal. Looking at some statistics, that could be true to a certain
extent:
  Last year, the omnibus appropriations bill was 4,000 pages long and
weighed over 40 pounds; this year's stack of bills is only about 1,500
pages long but it's almost a foot high.
  Last year's deal was done 21 days late and covered 8 of the regular
appropriations bill that funded 10 federal agencies; this year's deal
covers only 5 of the regular spending bills for 7 agencies, but it's 50
days overdue--more than twice as late as last year.
  Last year, the negotiators added more than $20 billion in extra
spending; this year, they only added a little more than $6 billion.
  And last year, the whole deal was wrapped up in a single bill that
included the text of 7 spending bills and a host of other legislation;
this year, we are casting one vote, but it will count as a vote on each
of 10 separate bills.

[[Page S15037]]

  I guess one could legitimately claim, based on those statistics, that
this year's deal is not as bad as last year's deal. But like last year,
this year's budget-busting behemoth is not amendable by any Member of
Congress not involved in the negotiations over the past several weeks.
Like last year, the process was deliberately designed to prevent any
Member of Congress from changing any aspect of this back-room deal.
What a farce.
  Mr. President, like last year, this non-amendable budget deal is
loaded down with pork, its true cost is obscured by budget gimmickry,
and it is weighed down by policy ``riders'' that have no place in
budget bills.
  Before this deal was cut, the Senate had already passed spending
bills containing over $13 billion in wasteful, unnecessary, and low-
priority spending that was added without benefit of consideration in
the normal, merit-based review process. That's more than the $11
billion added by Congress for Fiscal Year 1999, and almost twice the $7
billion wasted in Fiscal Year 1998. On my website, I have published 264
pages of pork-barrel spending projects in the appropriations bills that
passed the Senate earlier this year.
  The bill before the Senate today contains even more everyday, garden-
variety pork-barrel spending--almost half a billion dollars more than
in the original bills. Some items which agencies were ``encouraged'' or
``urged'' to fund in earlier versions of these appropriations bills
have now been earmarked for funding. Other projects that were earmarked
in report language are now included in the bill language. Presumably,
these further clarifications of Congressional intent were included to
improve upon the already near certainty that these pork-barrel projects
will be funded ahead of other projects of possibly higher priority or
more deserving of the taxpayers' support.
  Just a few examples of new earmarks and special interest items in
this bill include:
  $2 million for the University of Mississippi for a phytomedicine
project.
  $1 million for the Noble Army Hospital of Alabama bio-terrorism
program.
  $300,000 for the Vasona Center Youth Science Institute.
  $5 million for the International Law Enforcement Center for the
Western Hemisphere in Roswell, New Mexico
  $160,000 for a Mason City, Iowa, bus facility
  $250,000 for the New York Hall of Science in Queens, New York
  $100,000 for the Philadelphia Orchestra's Philly Pops to run a jazz-
in-the-schools program in Philadelphia
  $2.5 million for the Dante-Fascell North-South Center
  $1,840,000 for Kansas buses and bus facilities (in addition to the
$1.5 million already provided).
  Mr. President, as my colleagues know, over $7.4 billion of the pork-
barrel spending in this year's budget is in the defense budget,
including almost $1 billion in low-priority military construction
projects. This waste is disgraceful at a time when the Army's most
recent assessments of its forces show none of the Army's divisions is
rated at the highest state of readiness, or C-1. Not one of our Army
divisions has the resources and training to undertake the wartime
missions for which they are ordered to be ready. Shortfalls in
personnel, parts, and funding, combined with extended deployments on
peacekeeping and other contingency operations, have contributed to a
serious decline that puts our soldiers at greater risk if a conflict
were to erupt, and threatens the ability of our forces to prevail. This
is a disgrace and an abomination that the American people will not
tolerate.
  Mr. President, for those who wonder how these projects are paid for,
let's look at the clever budget gimmicks that are included in this
deal.
  First, there is the ``emergency'' spending designation, which most
reasonable people assume should be used only for disasters,
emergencies, and other unforeseeable happenings. Well, in this deal,
the Congress has expanded somewhat the definition of ``emergency'' to
include: the 2000 census, which we've known about since the
Constitution was written, routine military training and base
operations, and even the Head Start program.
  So-called emergencies in this year's spending bills add up to $24
billion. Some of the uses of these funds are truly emergencies, such as
alleviating severe economic hardship on small farmers or assisting
those devastated by hurricanes. But over half of the emergency funds
are designated as such in a blatant effort to avoid the discipline of
the budget caps. The reality, however, is that ``emergency'' spending
must still be paid for by tax revenues. And the tax revenues that will
pay for most of these emergencies are those generated by Social
Security taxes, that are supposed to be reserved to pay benefits for
retirees.
  Another gimmick is the use of ``forward-funding'', whereby money is
appropriated for projects or programs, but it cannot be spent until the
first day of the next fiscal year. This money is not counted against
this year's budget caps, but again, it is real spending that must be
paid for next year, within even more stringent budget caps.
  Using the ``forward funding'' gimmick, a staggering $10 billion for
job training, medical research, and education grants is pushed into
next year, potentially impairing the management and effectiveness of
these programs. In addition, the Department of Defense is directed to
delay timely payments on its contracts to save $2 billion. This gimmick
will result in higher costs for the Pentagon because of late payment
fees and disruption in programs under contract.
  Mr. President, most disgraceful, however, is a new gimmick that will
delay paychecks for all military personnel and federal civilian
employees for three days from September 29 to October 2, 2000. For the
sake of a few billion dollars worth of pork, the Congress is
withholding hard-earned pay from those who volunteer to serve their
nation in the military or as a civil servant.
  The potential impact on these men and women and their families is
immeasurable. Many may have to pay late fees on rent or other bills and
penalties and higher interest on credit cards. Some families,
especially those who already are forced to subsist on food stamps, will
have to struggle doubly hard to put food on the table while they wait
for the Congress to pay them for their service.
  Mr. President, I find it absolutely outrageous that the Congress
would attempt to balance this pork-laden budget deal on the backs of
our men and women in uniform. Is this the way we show our respect and
appreciation for those who are willing to put their lives at risk for
all of our freedoms? Is this the way we repay the families of our
service men and women who spend many months and years separated from
their loved ones during wars and overseas assignments? This is
disgraceful, and I am ashamed that the Congress would take this action
against those whose duty and sacrifice we should honor, not abuse.
  Mr. President, I think it is important that the American public know
that this paycheck slip gimmick--a gimmick that denies our proud men
and women in the military, and hard-working people who work for the
government the pay they have worked for and deserve--this gimmick does
not affect the Congress. No one who works on Capitol Hill will get
their paychecks even a day late. No one who was involved in negotiating
this abominable deal--not Senators or Congressmen or their staffs--will
get their paychecks late. Clearly, this demonstrates to the American
people the Congress' opinion of its own importance.
  Several other gimmicks abound in this deal--transferring surplus
funds from the Federal Reserve into general revenues, improved
collection of student loans, and more rescissions of funding from
various programs, totaling several billion dollars in claimed savings.
  And finally, in order to get closer to balancing the books on this
budget deal, the negotiators picked and chose among the cost estimates
provided by the competing budget scorekeepers for the Congress and the
Administration, taking the lowest estimate they could find for each
program so that they could squeeze more pork into the deal. The
negotiators claim that their deal costs about $17 billion less the
Congressional Budget Office estimates. What this means is that, despite
vehement claims to the contrary, $17 billion of the Social Security
surplus will be used to pay for the waste and largesse in

[[Page S15038]]

this budget deal. Taking another $17 billion from an already
financially unstable Social Security system will only exacerbate the
fears of many Americans about their retirement security.
  Ironically, Mr. President, none of these specific gimmicks yielded
enough ``savings'' to bring the budget deal back under control and keep
our hands out of the Social Security cookie jar. And since no one was
willing to volunteer cuts in any of their special interest programs,
the negotiators took the easy way out. Rather than setting budget
priorities, like any American family must do to make ends meet, the
negotiators resorted to an across-the-board cut of about $2 billion.

  At first glance, one would think that the President, who so
stridently objected to this indiscriminate cut when he vetoed an
earlier bill, would have objected to its inclusion in this deal. But it
seems that the negotiators decided to give the President a whole lot of
flexibility in choosing the programs that will be cut. For example:
  If the President doesn't want to cut the White House travel budget by
four-tenths of a percent, he can instead cut funding for the National
Security Council staff.
  If he doesn't want to cut the staff budget of the Attorney General,
he can instead cut the funding for the Waco investigation or take a
million dollars out of programs to prevent violence against women.
  If he doesn't want to cut the administrative accounts of the
Secretary of Education, he can cut Head Start by another couple million
dollars.
  If he doesn't want to cut the drug czar's office expenses account, he
can cut $200,000 or more of the funding for the anti-heroin strategy.
  If the President doesn't want to cut four-tenths of a percent of the
funding for any one program, he can instead cut up to 15 percent of any
line item approved by the Congress in any appropriations bill this year
to get the savings.
  Even though I clearly don't think Congress has done a very good job
of allocating resources among our nation's priorities, why in the world
would the Congress cede to the President the ability to decide where to
take almost $2 billion from programs that have been approved by
Congress through the appropriations process? Frankly, I recommend that
the President take that money out of the $13 billion in pork that the
Congress added to the budget.
  Finally, Mr. President, let me take a moment to talk about the policy
``riders'' that have found their way into the appropriations process
this year. As my colleagues know, the Senate has a rule--Rule 16--that
is supposed to prevent the inclusion of legislative or authorizing
provisions in spending bills. In fact, the Senate voted earlier this
year to reinstate that rule. Unfortunately, when a process moves behind
closed doors, these ``riders'' seem to proliferate.
  There were over 65 legislative riders on the appropriations bills
that passed the Senate earlier this year, but it seems that every time
I turn around, I hear about another issue that will be rolled into this
non-amendable budget package.
  Perhaps that is a result of the fact that these end-of-the-year
budget deals are usually negotiated by Members of the Appropriations
Committee, rather than the authorizers. Or it may be driven by the need
to garner support for the deal from Members who may have a special
interest in an issue. Whatever the reason, the inclusion of legislative
matters thwarts the very process that is needed to ensure that our laws
address the concerns and interests of all Americans, not just a few who
seek special protection or advantage.
  Some of these riders are not necessarily objectionable to me, but the
circumvention of the authorization process that took place makes me
unable to benefit from the advice and recommendations of the committees
of jurisdiction and their members. I should note, however, that many of
the reported efforts to add riders to the bill were unsuccessful, for
which I applaud the negotiators. However, most of the 32 new riders in
this bill are highly objectionable because of their content as well as
the process that led to their inclusion in this budget deal.
  For example, one of the last-minute riders in this legislation would
grant a new lease on life to the milk cartel known as the Northeast
Dairy Compact, which milks consumers in New England by providing an
above-market price to the region's dairy farmers. The compact is set to
expire under a bill this Congress passed in 1996, but the pending
legislation would reverse this ``Freedom to Farm'' reform. The
legislation before us would also overturn milk pricing reforms mandated
by Congress in 1996, supported by our Department of Agriculture, and
ratified by the nation's dairy farmers in a referendum last summer.
These reforms were developed by USDA over a three-year period and
reflect a consensus-based approach worked out with America's dairy
farmers and producers. Consumer groups estimate that blocking milk
pricing reform in favor of the current system, as this legislation
does, will cost consumers across America between $185 million and $1
billion a year--a sharp blow to low-income individuals, who spend more
on dairy products as a portion of household income. I cannot in good
conscience support the repeal of market-oriented reforms passed by a
Republican Congress in 1996 to benefit American consumers. I fear that,
yet again, a narrow core of special interests has trumped the people's
interest in consumer-oriented milk pricing and marketing reforms.
  Another last-minute rider will carve out liability exemptions for
certain recycling businesses under the Superfund law. Although these
same provisions are under consideration in a separate bill as well as
part of a broader Superfund reform effort, this rider affords special
treatment to a small group of affected industries with a last-minute
add-on that is another of a targeted special interest deal. Superfund
reform is important to our nation, yet such piece-meal measures can
thwart the intentions and progress of those who have made good-faith
efforts to work through a legislative process.
  Regarding the inclusion in this deal of the restoration of certain
Medicare benefits, in 1997, Congress made some difficult, but necessary
changes in the financial structure of the Medicare system as a part of
the Balanced Budget Act. These changes were needed to strengthen the
system and delay its impending bankruptcy from 2001 until 2015. These
reforms allowed us to preserve and protect the Medicare program while
increasing choice and expanding benefits for beneficiaries.
  However, at the end of last year, many of us began hearing from
health care providers and seniors about the unintended negative
consequences which certain provisions may be having on current
beneficiaries and providers in the Medicare system. There has been
increasing concern that certain reimbursement reductions and caps
contained in the Balanced Budget Act could result in access problems
for our nation's seniors if they were not adjusted this year.
Personally, I have grown increasingly concerned about this problem,
particularly about the negative impact on health care delivery which it
may pose for our nation's most frail or rural elderly.
  While I support the overall intentions of these provisions, I am
concerned about provisions which have been slipped in to benefit only a
select area or specific companies, rather than addressing the national
problem of access to safe, quality and affordable health care for
Medicare recipients. For example, hospitals in Iredell County, North
Carolina; Orange County, New York; Lake County, Indiana; Lee County,
Illinois; Hamilton-Middletown, Ohio; Brazoria County, Texas; and
Chittenden County, Vermont are given special consideration for
reimbursement under the Medicare program. Wesley Medical Center in
Mississippi as well as Lehigh Valley Hospital are given special
reimbursement consideration under this bill. Meanwhile, the District of
Columbia, Minnesota, Wyoming and New Mexico are provided increases for
their hospitals. Sadly, Congress has once again taken a well
intentioned piece of legislation and inserted provisions directly
benefitting only a select few at the expense of all taxpayers.
  Finally, Mr. President, nothing would please me more than being able
to endorse all the satellite television provisions included in this
appropriations bill. Some of them are good news for satellite TV
consumers, who would

[[Page S15039]]

gain the ability to receive local TV signals as part of their satellite
TV service package, have discontinued distant network TV station signal
service restored, and be relieved of unfair limitations on their
ability to subscribe to distant network signals when their local
network stations are unwatchable off-air. Cable TV subscribers would
also be indirect beneficiaries, because anything that makes satellite
TV a more attractive alternative to cable TV increases the cable
operators' incentive to keep monthly rates in check. Considering the
fact that cable TV rates have increased more than 20 percent since the
passage of the 1996 Telecom Act, cable subscribers more than deserve
this kind of break.
  Despite all this, and despite the fact that I have worked for over a
year and a half to bring procompetitive relief to satellite TV and
cable TV subscribers, I find myself having to speak out against some of
the other satellite TV provisions that also appear in this bill.
  Why? Because these other provisions substantially undercut the bill's
promised consumer benefits. Why, then, were they included? To protect
special interests--in this case, the TV broadcasters, the TV program
producers, and the professional sports leagues.
  The primary special interest benefitted by these new provisions is
the TV broadcasters. Under the law they're considered to be ``public
trustees,'' and as such they have enjoyed considerable protection
against competition, thanks to the Congress (which fears the power of
the local network stations) and to the FCC (which fears the Congress).
  Nevertheless, neither Congress nor the FCC can hold back technology,
and local broadcasters have increasingly found themselves subjected to
competition from new multichannel video technologies--first cable TV,
and now, satellite TV. So the last thing the broadcast TV industry is
receptive to is the prospect that satellite TV might be able to
increase its competitive power and thereby lure more of the local
broadcast audience--and revenue base--away.
  That was one of the reasons why local broadcasters finally sued
satellite TV companies that were offering distant network TV stations
to subscribers who technically weren't entitled to receive them--even
though many of these subscribers had, in fact, been receiving them for
years without causing any apparent harm to local stations. The lawsuit
was successful, and as a result many existing satellite TV subscribers
found their distant network stations suddenly dropped, even when they
couldn't get satisfactory off-air service from their local stations.
  Not surprisingly, this led to widespread consumer protest. The House
and the Senate Commerce Committees passed legislation that, taken
together, would have solved satellite TV consumers' problems without
inflicting material harm on broadcasters. But the legislation before us
today contains a number of new provisions that will hurt satellite TV
consumers and serve no purpose other than protecting the congruent
interests of the well-heeled TV broadcasters, program producers, and
professional sports leagues. These new provisions will adversely impact
the very competition Congress claims it's trying to enhance, and the
very satellite TV consumers Congress claims it's trying to help.
  The first of these objectionable new provisions directly affects the
ability of satellite TV companies to offer their subscribers local TV
stations. Specifically, it governs the process whereby satellite TV
companies negotiate with the TV networks for the rights to carry their
local affiliates.
  This issue has always been one of considerable concern because the TV
networks have the stronger bargaining position, and the incentives, to
extract unfair prices and conditions from satellite TV companies in
return for giving them the right to carry local affiliates. Satellite
TV companies' inability to offer local network stations has been cited
repeatedly as the principal competitive disadvantage satellite TV
companies face. The TV networks, therefore, begin with a strong
bargaining advantage. Added to this is the fact that the networks also
hold substantial cable TV programming interests, which increases the
possibility that they could seek to extract further competition-
dampening conditions that would serve the interests of their cable-
channel partners. And, of course, the fact that the networks' local
affiliates have been in litigation with the satellite TV industry adds
to the concerns about the networks' incentives to withhold consent to
carry their local affiliates unless, and until, the satellite TV
carriers agree to whatever onerous and unfair terms and prices the
networks might choose to dictate.
  Now let's see how this legislation deals with this critical issue.
Not only does this legislation omit fair-dealing requirements that had
been included in the House bill; it adds a new provision, dictated by
the broadcast industry, that makes a mockery of any notion of fair
dealing.

  This new provision gives satellite TV companies a six-month ``shot-
clock'' to negotiate and obtain a signed retransmission consent
agreement from a TV network for carriage of its local affiliate. During
this time the satellite TV company could begin offering the station to
its subscribers.
  But there's a catch if, at the end of six months, the satellite TV
company doesn't get the consent. First of all, the broadcaster, and
only the broadcaster, is allowed to file a complaint and request a
cease-and-desist order from the FCC. Moreover, the legislation doesn't
simply deprive an aggrieved satellite TV company of the ability to file
a complaint against an unreasonably recalcitrant broadcaster; it goes
further, and specifically denies the satellite TV company any right to
claim that the broadcaster didn't negotiate in good faith. These
patently unfair provisions are complemented by penalties so stringent
that no satellite TV company in its right mind would knowingly risk
them.
  Let's examine exactly what this is will mean in real terms. The big
benefit that satellite TV consumers are supposed to get from this
legislation is local signals, and their ability to get local signals
depends on their satellite TV company's ability to close a deal with
the networks, which have strong bargaining power and palpable
disincentives to deal dispassionately. So what does this new provision
do? It deletes the substantive provision that would have provided a
statutory guarantee of fair dealing, adds a complaint process front-
loaded to benefit the party that has the stronger bargaining position
and the incentive to deal unfairly, deprives the party that's in the
weaker bargaining position from raising unfair treatment as a defense,
and imposes huge penalties on the party with the weaker bargaining
position if it fails to enter into an agreement before the six-month
deadline expires.
  In practical terms, this presents any underdog satellite TV companies
that don't already have retransmission consent agreements with a set of
Hobson's Choices when it comes to offering local stations. They can, of
course, simply not begin carrying local stations unless and until they
have the required retransmission consents. That's the safest thing to
do. But if they don't start carrying local signals right away, they
certainly won't be offering their customers the ``local stations by
Christmas'' promised by those who back this legislation. In addition,
they'll not only be perpetuating the competitive disadvantage they
already face when it comes to competing with cable TV; they'll be
incurring a completely new competitive disadvantage when it comes to
competing with other satellite TV companies that already have
agreements. If, on the other hand, a satellite TV company begins
offering local signals before obtaining the necessary agreements, it
entails the risk that if the six month negotiation period runs out
without mutually-acceptable terms having been reached, the satellite TV
company will have to either drop the local signals or agree to whatever
terms the network wants.
  Pretty clearly, the effect of this new provision is pro-broadcaster,
not pro-consumer or pro-competitive. But it's not the only new
provision that protects special interests at the expense of the
public's interest. This legislation also protects local network TV
stations from any action by the FCC to change an outdated 50-year old
law whose effect is to prevent many satellite TV subscribers from
receiving additional distant network stations.
  The legislation's new program blackout provisions are another
Congressional valentine to special interests.

[[Page S15040]]

 These provisions could result in blackouts of scheduled network
programming, non-network programming, and especially sports
programming, on the distant stations satellite TV consumers get. This
will make the broadcasters and TV program producers happy, at the
expense of making millions of satellite TV consumers unhappy when
uninterrupted reception of distant station programming becomes a thing
of the past. The sports programming that so many satellite TV consumers
enjoy is at the greatest risk. In a special favor to the NFL and the
other professional sports leagues, the legislation will require
satellite TV carriers to black out sports programming on distant
network stations unless the FCC finds it's ``economically prohibitive''
for the satellite TV company to do so--a standard that virtually
guarantees blackouts. And when these blackouts are imposed, no existing
satellite TV subscriber--not even those who have their distant network
signal service restored, or the big backyard dish owners who were the
very first satellite TV subscribers--would be exempt, no matter how
long they have received multiple distant stations without blackouts and
without inflicting any detectable harm on any of the special interests
at whose behest these new provisions were added.
  Rather than prolonging this discussion further, let me sum up. Before
you now is the latest example of how special interests can, and do,
make Congress shape legislation to suit what they want, rather than
what average Americans need and deserve.. At some point, the American
people will get fed up, and the ability of special interests to
exercise unwarranted influence like this will be constrained.
Unfortunately, that's not going to happen today, and therefore I will
close--but not without some promises that, I assure you, I intend to
keep.
  I will continue to do everything I can to make sure that satellite TV
consumers are helped, and multichannel competition improves, after this
legislation is enacted. I will convene the Commerce Committee early
next year to examine how competition and consumers are being affected
by this legislation. I will introduce and I will move new legislation
to correct any problems we see.
  I will also make sure that the FCC does all it can to help Congress
serve the interests of satellite TV consumers and multichannel video
competition. To begin this process I will send a letter tomorrow to FCC
Chairman William Kennard, requesting that the Commission establish, as
quickly as possible, the minimum requirements for bargaining in ``good
faith'' for retransmission consent agreements, and submit
recommendations to Congress, as quickly as possible, on further
legislation that will redefine what constitutes a ``viewable'' local TV
signal. This will remove the problem that keeps satellite TV
subscribers from getting as many distant TV stations from their
satellite TV companies as they otherwise could.
  All these measures will enable us to cure the problems these
particular special-interest provisions will cause. In the meantime,
it's helpful to recall that in the final analysis they won't affect our
everyday lives as profoundly as other special interests do when it
comes to other legislation. The provisions before us today won't
determine how much we must pay in taxes, how we are permitted to
educate our children, how we obtain health care, or how our seniors
will be protected. But in spite of that, they will serve to remind us--
when we watch satellite TV or open our monthly cable TV bills--that,
when it comes to legislation pending before Congress, no corporate
issue is too small, and no consumer issue is too big, to avoid the
pervasive grasp of entrenched special interests.
  Mr. President, I cannot support this budget deal.
  I wonder, Mr. President, when will we begin to listen to the American
people? When will we take heed of the absolute cynicism about the ways
of Washington? When will we reform the way we do business so that we
might reclaim the faith and confidence of the people we are sworn to
serve?
  Sadly, we seem never to learn. The last-minute, end-of-year budget
agreement has become a yearly ritual and a tired cliche.
  Mr. President, we have all year to complete our business in a
responsible manner like grownups. But every day, at great expense to
the taxpayers, we whirl about in our self-importance, never to be
diverted from playing at our pathetic partisan political games.
  After all the hearings, paper-shuffling, and speech-making, the
taxpayers' hard-earned money is spent according to the whims of a
massive, hastily compiled budget deal that contains lots of goodies for
Members of Congress and special interests, but very little for the
American people--an annual monument to our arrogance that is chock full
of pork-barrel spending, special-interest riders, and clever budget
gimmicks, but not one morsel of family tax relief.
  Mr. President, in just a few short weeks, we will usher in a new
century and a new millennium. This is a time of renewal and reform.
Just as individual Americans take stock of themselves and resolve to do
and be better, perhaps we elected officials might resolve to set a
better example in the way we conduct the people's business. Perhaps in
the year 2000, we might address ourselves not to partisan gridlock and
political games, but to restoring the people's faith in their elected
leaders. Perhaps next year we can spare the American people the grim
faces and high drama of the last-minute budget summit, and simply do
our work responsibly, in the open, and on time.
  Maybe then we can restore the confidence in our public institutions
that is so badly flagging, but is so essential to making the new
century worthy of the highest dreams and aspirations of the people we
are privileged to serve.
  Mr. LUGAR. Mr. President, I will vote for this final appropriations
package, because I believe that, on balance, it is a good product.
However, the situation we are in today is hauntingly familiar to that
of a year ago, and my disappointment in the appropriations process
continues. Last minute budgeting makes sound decisions increasingly
difficult. We should reform the appropriations process to safeguard the
interests of taxpayers and achieve a more balanced use of our time and
resources.
  We all know that the appropriations process has grown to an
inordinate length. We spend months holding hearings and negotiations,
crafting sound public policy, only to scrap it in a hasty year-end
scramble when we cobble together a bill negotiated by the White House
budget chiefs and a few members of Congress. A 1996 CRS study revealed
that budget matters eat up 73% of the Senate's time. I can't imagine we
spent much less time on budget matters this year.
  As I have been recommending since 1993, along with our distinguished
Budget Committee Chairman and many other Senators, Congress should
adopt a two-year budget cycle, and do the budgeting in non-election
years. This would double the time available for non-budget policy
issues and for carrying out often neglected oversight duties. Our goal
must be to engage in lawmaking in the deliberative manner the Founders
intended.
  Mr. LEVIN. Mr. President, once again the Senate is considering a
massive appropriations bill in the final hours of a session of
Congress. This one spends more than $385 billion, contains legislation
which rightly belongs in five separate appropriations bills, and other
important legislation which doesn't belong in an appropriations bill at
all. This is a process which reflects poorly on the Congress both
because it represents a failure to get the nation's work done on time,
and because the final rush precludes the kind of careful consideration
and debate which wise decisionmaking demands. The combination of its
enormous size and the swiftness with which it was thrown together makes
certain that Senators will only after the fact learn full details about
many provisions which have been added.
  Democrats have won critical victories in this bill providing funds
for new teachers to reduce class size in our schools, a first
installment toward 50,000 new police officers by 2005, the necessary
funding to implement the Wye River peace agreement and more than $514
million for the Lands Legacy Initiative to preserve and safeguard our
most precious public lands, as well as funds for after-school programs
to benefit 675,000 students. Other needed legislation is included to
reverse some

[[Page S15041]]

of the unintended consequences of the 1997 Balanced Budget Act on
hospitals, nursing homes and other health care facilities and
legislation to benefit consumers by increasing competition between
cable and satellite companies and permitting satellite companies to
provide local network signals in local markets. However, like last
year, even as I acknowledge some important budget victories, I do not
support this process and, on balance, cannot vote for this bill.
  Mr. FEINGOLD. Mr. President, as some of my colleagues know, I have
been posted, here on the Senate floor, day after day this week because
of my concerns about the dairy provisions that are included in the
budget package, and I know other Senators support those provisions
because of the States they represent. For now, I just want to comment
more broadly on the budget package and how we got here.
  Mr. President, we have before us a measure that we are told will
direct something like $400 billion in spending in such areas as the
Justice Department including the FBI, Education including funding for
local school districts, increased security for our foreign embassies,
the Interior Department including our national parks system, Health and
Human Services including critical funding for aging programs like the
congregate and home delivered meals programs, and much more.
  But, Mr. President, you would not know that by reading this bill.
That roughly $400 billion in spending is distributed in a few pages of
text. With the exception of District of Columbia funding, it's all on
one page--the last page.
  I have not been here as long as some of my colleagues, but I cannot
recall ever seeing anything like this. Last year's omnibus
appropriations bill was bad enough. It, too, lumped several
appropriations bills together into one giant omnibus appropriations
measure. It, too, was loaded with special interest measures that were
slipped in, never having been debated, and unlikely to pass on their
own. But at least, Mr. President, the spending done in that bill was
explicitly a part of the document formally placed before the Senate. If
you took the time to read the several thousand page appropriations
bill, you would have found those items last year.
  Mr. President, the bill before us is another matter entirely. It
legislates by reference. Other than the DC Appropriations bill, there
are no details provided in this document that indicate how those
hundreds of billions of dollars are to be spent, only references to
other bills.
  Mr. President, when this bill goes to the President for his approval,
what will he be signing into law? Essentially, he will be signing into
law little more than a glorified table of contents.
  Mr. President, this is a horrible precedent. This kind of gimmick may
have been used before, but never on anything so momentous as an omnibus
appropriations bill. And it is perhaps fitting that this piece of
legislation should be structured the way it is.
  This bill is the ``poster child'' of the 106th Congress. Unable to
meet the budget deadline, we are once again presented with an omnibus
appropriations bill, laden with the kind of special interest provisions
that undermine our budget as well as the confidence of the public. And
unwilling to bring any but a handful of authorizing bills to the floor
for open debate, the leadership has now crammed this perverse bill full
of legislation that has no business in an appropriations measure.
  Mr. President, earlier this year this body voted to restore some
order to the appropriations process by re-establishing the point of
order against legislating on appropriations. This bill renders that
exercise utterly meaningless. Worse, it means that while the Senate is
precluded from adding authorizing language after thorough debate on the
floor, a few people in a backroom are free to add anything they wish,
with no debate and out of public view.

  Mr. President, the 106th Congress is not yet half over a but it has
already earned itself a sorry reputation. This is the Congress of
Convenience. The 106th Congress found it inconvenient to finish the
simple job of passing appropriations bills before the end of the fiscal
year, so it cuts a few backroom deals and lumps five appropriations
bills together. The 106th Congress found it inconvenient to debate
authorizing bills fully and openly, so it bundled several together and
shoved them into this omnibus appropriations bill. And now, the 106th
Congress finds it inconvenient to provide even the details of this $400
billion compost heap, so it engages in some drafting gymnastics, and
gives the public little more than a glorified table of contents.
  Mr. President, I realize there are some strong feelings about the
provisions of this bill. I know that some of my colleagues support some
of the provisions in this measure. Chances are there are provisions in
this measure that I, too, would support, but how would I know? But I
hope that a few weeks from now, after this thing is enacted, my
colleagues will consider just what has been wrought this week and this
past year. The normal procedures of the Senate and the other body have
been run over by a steamroller in the name of political expediency and
convenience, and that cannot be good, even for those who may have
gained a temporary victory.
  In the play A Man for All Seasons, there is an exchange between Sir
Thomas More and his son-in-law, Roper. More asks Roper--``What would
you do? Cut a great road through the law to get after the devil?''
Roger responds--``I'd cut down every law in England to do that!'' More
then replies--``Oh? And when the last law was down, and the devil
turned round on you--where would you hide, Roper, the laws all being
flat? * * * This country's planted thick with laws from coast to
coast--man's laws, not God's--and if you cut them down--and you're just
the man to do it--d'you really think you could just stand upright in
the winds that would blow then?''
  Mr. President, the 106th Congress has done more than its share of
flattening our rules and procedures. Those of us in the minority on the
issue before us today perhaps feel it most keenly, but let me suggest
that many more may come to regret the precedents set by the Congress of
Convenience.
  Mr. KOHL. Mr. President, before I begin my remarks, I want to express
my appreciation for all of the hard work that Senators Stevens and
Byrd, Specter and Harkin have put into the Labor, Health and Human
Services, Education Appropriations bill in the face of enormous
budgetary challenges. I also appreciate all they have done to
accomodate my priorities during this process.
  The 20th Century is coming to a close during a time of unprecedented
economic growth and budget surpluses. However, as we celebrate our
nation's prosperity, we must make sure we don't leave any of our most
vulnerable citizens behind. In my opinion, that's what this bill, which
funds vital health and education programs in the year 2000, should be
about: making a strong commitment to our aging parents and
grandparents--who made this country what it is today, as well as to our
children--who will determine its future.
  I am pleased that this bill takes several important steps in that
direction. First, this bill continues to make early childhood education
and child care a top priority. I am very pleased that the bill includes
a $608 million increase to the Head Start program. This program gives
young children from lower-income families a real chance to succeed by
providing educational, health, and other child care services.
  Second, I am glad to see that this bill includes a nearly $30 million
increase for States to inspect nursing homes and ensure they are safe.
As a member of the Senate Aging Committee, I have had the unfortunate
opportunity to hear firsthand about cases of abuse and neglect in many
of our nation's nursing homes. Our seniors and disabled deserve the
best possible care, and this funding will help make sure they get it.
In addition, the bill includes a $1 million increase for the Long-term
Care Ombudsman program. Ombudsmen serve as advocates for long-term care
residents and help them to resolve complaints of neglect and abuse.
They are a critical component of ensuring the safety of our seniors in
nursing homes and other long-term care settings.
  I am also extremely pleased that the bill includes another $100
million increase for Community Health Centers. The number of uninsured
in our country continues to grow. Health centers

[[Page S15042]]

provide treatment to large numbers of uninsured and should be commended
for the incredible work they do. This increase will help them meet the
increased demand for care, and ensure that patients get the quality
health care services they need.
  This bill also fully funds the LIHEAP program. This program is vital
to low-income families in Wisconsin who need assistance with heating
costs during the cold winter months. I am pleased that this bill
continues to make this program a top priority.
  I am also pleased that in addition to the $2 billion increase for the
National Institutes of Health, report language was included in the bill
that targets many of the diseases that are devastating families across
our nation. The bill includes report language I requested to increase
research into epilepsy, particularly intractable epilepsy, which
primarily starts in childhood and affects nearly 75,000 of the 3
million individuals with epilepsy.
  In addition, at my urging, the bill also includes $90 million for the
National Institute of Nursing Research within NIH. Nursing research is
different from biomedical research but just as necessary. This research
focuses on reducing the burden and suffering of illness, improving the
quality of life by preventing and delaying the onset of disease, and by
looking for better ways to promote health and prevent disease.
  I am pleased that the bill also includes report language that
strongly urges more research into Alzheimer's Disease. This devastating
disease affects nearly 4 million people in the United States, including
100,000 in Wisconsin. The total annual cost of Alzheimer care is over
$100 billion. Searching for new treatments--and ultimately a cure--must
be one of our top priorities in biomedical research, to alleviate both
the suffering and the costs associated with this awful disease.
  I also want to thank Senators Specter and Harkin for their
willingness to work with me on some of my other priorities. At my
request, language was included in the Senate report to start a
demonstration program within HRSA to increase the number of mental
health professionals in underserved areas--particularly those suffering
from recent farm crises. I am hopeful that HRSA will allocate at least
$1 million toward this initiative.

  Funds have also been provided to CDC to expand their efforts to
prevent birth defects through the promotion of folic acid among women
of childbearing age. I have sponsored, along with Senators Abraham and
Bond, a bill that would authorize $20 million to CDC for this purpose,
and I am pleased that this appropriations bill gets this initiative
underway. In addition, I am pleased that the Ryan White Comprehensive
Care program received an increase of $86 million to expand services for
people living with HIV and AIDS.
  I'd now like to talk a bit about funding for education. While I am
concerned about the use of advance funding for many of our education
programs, I am pleased that this bill provides necessary increases for
education. Title I--which provides assistance to disadvantaged youth,
received a $209 million increase, although we must do much better than
that in the future in order to serve all Title I-eligible children. I
am also pleased that Special Education received a large increase in
funding, although we still have a great deal of work to do to live up
to our commitment to fund 40% of the costs of the program. We still
need to do more in both these areas, but this is a good start.
  In addition, I strongly support the $253 million increase for 21st
Century Community Learning Centers, for a total of $453 million for FY
2000. I have visited several of these afterschool programs in my State
and I have seen firsthand how successful and critically important they
are. These programs give kids a safe place to go after school, keep
them off the streets, and out of trouble. It is supported on a
bipartisan basis, by parents, teachers, and police chiefs. Last year,
thousands of applications were submitted for only 184 grants. However,
I believe it deserves an even stronger investment than this bill
provides, which is why I voted for an amendment during consideration of
the Senate version to provide $600 million for this worthy program.
Although that amendment failed, I will continue to fight for more
funding for after-school programs next year.
  This bill also makes greater strides to give students the tools they
need to go to college. First, the bill increases the maximum Pell Grant
award to $3,300, and I am hopeful we can further increase this amount
next year. It also increases the Federal Work-Study program by $64
million. TRIO programs also received a $45 million increase, and I am
pleased that more students will be able to take advantage of TRIO
programs that give lower-income students a better chance to go to
college. I also strongly support the $80 million increase for the GEAR-
UP program. This program gives many middle school students their first
real opportunity to strive toward going to college. I am hopeful that
we will further increase funding for this program in future years.
  Finally, I am pleased that the conference report maintains and
increases our commitment to hiring 100,000 teachers and reducing class
sizes in the early grades. Class size reduction efforts have produced
tremendous results in Wisconsin and across the nation. It is essential
that we continue to provide the resources States and school districts
need to put a qualified teacher in every classroom. Our students
deserve nothing less.
  I am pleased that these important education programs have received
increases. However, I also have several significant concerns about the
education section of the bill.
  First, I am deeply concerned that the bill level funds the Child Care
& Development Block Grant. The Senate bill included an amendment, which
I supported, to increase funding for the CCDBG from $1.2 billion to $2
billion. This amendment had strong bipartisan support because there is
now widespread recognition that child care is critical to the success
of working families. Unfortunately, this amendment was dropped during
negotiations of the conference report. This is a serious mistake, and
one that will have serious repercussions for working families. Programs
funded by the CCDBG ensure that parents have a safe, educational place
to send their children during the workday. Businesses experience less
absenteeism and greater productivity when their employees know their
children are well taken care of. When families who need quality,
affordable child care are able to find it, everybody wins. It's that
simple. I strongly believe that we must renew our commitment to
expanding access to child care, and I will continue to make child care
funding a top priority and fight hard for future increases.
  Second, and even more importantly, I have serious concerns about the
bill's substantial use of advance funding for education. I am not
convinced that this practice is completely benign, and I believe we
must watch carefully how the delayed release of education funds impacts
school budgets.

  However, I have an even deeper concern about the use of advance
funding. The hard truth is this: we would not be forced to use advance
funding, nor any budget gimmicks at all, if this bill received the
priority it deserved. This bill, which funds our most basic needs--
health care and education--was left for dead last. It was raided
repeatedly to fund other programs, leaving it at one point with a more
than $15 billion shortfall. We would not be in the budgetary box we
find ourselves in today if this bill had been the top priority it
should be. I hope that in the future my colleagues on the other side of
the aisle will have the will to pass this bill early and send a strong
message that education and health care are our top priorities, not our
last.
  Besides education, there are several other areas of the bill that I
believe must be improved in future budgets. First, while I am pleased
that the bill sets aside $19.1 million in the Child Care & Development
Block Grant for Resource and Referral programs, I am concerned this
just isn't enough. R&R programs serve as a resource to help parents
locate quality, affordable child care in their communities. When
parents need child care, they call R&R agencies, who have the tools to
direct parents to appropriate child care providers in their area that
meet each family's unique needs. With growing numbers of parents
entering the workforce, the need for R&R is greater than ever. I would
like to continue to work with Senators Specter and Harkin, as

[[Page S15043]]

well as all of my colleagues, on increasing this set-aside to $50
million to meet the increasing demand for referral services.
  I am also very concerned about the cut in the Social Services Block
Grant. The State of Wisconsin and our counties rely on SSBG to fund a
variety of social service programs. These include supportive home care
and community living services for the elderly and disabled, drug and
alcohol abuse treatment, temporary shelter for homeless families, and
child abuse prevention and intervention services. States and counties
rely on these funds, and it is wrong to renege on our commitment to
SSBG funding.
  I am also very concerned about programs for senior citizens under the
Older Americans Act. I am pleased to see that the bill includes a $35
million increase for home-delivered meals to seniors. However, we must
also find a way to make a stronger investment in the Supportive
Services and Senior Centers program. This program provides funds to
Area Agencies on Aging, which in turn provide a wide range of
assistance to frail elderly. In addition, we must also provide
assistance to the growing number of Americans who are taking care of
elderly and disabled relatives. I am a cosponsor of the Family
Caregiver Support Act, which provides $125 million in assistance and
respite for caregivers. Unfortunately, this bill does not fund this
necessary program, but I hope we can enact it into law quickly next
year.
  The National Senior Service Corps is a program we should all be proud
of and support increased funding. These programs utilize the skills and
experience of older Americans in our communities. Foster Grandparents,
Senior Companions, and RSVP give seniors a chance to work with
children, families and other seniors, and we are all the richer for
their contributions. I am pleased that the bill includes increases for
these programs, and I believe we must provide more in the future lest
we waste this priceless resource we have in our seniors.
  In addition to the Labor, HHS component, this Omnibus Appropriations
bill includes some desperately needed relief for our nation's health
care providers. The Balanced Budget Act of 1997 included many
provisions that reduced Medicare payments further than Congress
intended. Providers have been forced to reduce benefits or worse--many
providers in my State and across the nation have closed altogether. I
have strongly supported efforts to alleviate those cuts and have worked
with many of my colleagues over the past year to fight for a solution.
I am pleased that the Conference Report includes provisions to assist
hospitals, home health agencies, skilled nursing facilities and other
providers. In the end, Medicare beneficiaries are the ones who truly
benefit, and this bill will help ensure that seniors in Wisconsin and
throughout the nation continue to receive the health care services they
need and deserve.
  Overall, I believe this is a good bill, and I commend the Chairmen
and Ranking Members of the Appropriations Committee and the Labor, HHS
Subcommittee, as well as the Finance Committee, for their hard work.
Unfortunately, because unrelated dairy provisions that I strongly
oppose were included in this conference report, I reluctantly must vote
against it. However, I want to make clear that I strongly support the
vast majority of the increases in this bill--increases that will go a
long way toward ensuring that our children and our elderly receive the
important services they need. I want to thank the Chairman and Ranking
Member of the Subcommittee for doing such a great job this year under
such difficult budgetary circumstances, and for their willingness to
work with me on items of concern to me and my State. I look forward to
working with them again next year on this vitally important bill.
  Mr. ROTH. Mr. President, I intend to support the consolidated
appropriations package. This large legislative package--the result of
hard work by many on both sides of the aisle--provides funding for a
number of programs which are important and affect people in a direct
way. This bill includes funding for programs under the D.C.
Appropriations bill, the Interior Appropriations bill, the Foreign
Operations Appropriations Bill, the Commerce-Justice-State
Appropriations bill, and the Labor-Health and Human Services-Education
Appropriations bill.
  In addition, incorporated in the legislation are other important
measures, including the Satellite Competition and Consumer Protection
Act, provisions important for dairy farmers in my State, the State
Department Authorization bill, and our Medicare refinement plan. As
with any product this large and with as many compromises which were
necessary to move the process forward, there will be provisions with
which one will disagree.
  While this is certainly a substantial legislative undertaking, I
would point out that nearly all of the matters contained in this
package have previously been debated in full by the Senate and passed
by wide margins.
  Mr. President, I would like to highlight some provisions contained in
this legislation for which I have advocated. This legislation will
continue the Trade Adjustment Assistance program.
  Earlier this month, my distinguished colleague on the Finance
Committee, Senator Moynihan, and I, stressed the importance of this
program for our American workers during the debate on the Africa Trade
bill. The Africa Trade bill passed by the Senate extended the authority
for the TAA program which lapsed in June of this year. As time did not
permit us to resolve our differences with the House on the trade
package, we needed to insure that the benefits to workers displaced
from their jobs as a result of trade activity be continued. I am very
pleased that this provision is included in this package.
  The package also includes the Satellite Copyright, Competition, and
Consumer Protection Act. My State has over 30,000 households which
depend on satellite dishes for their television programming and I have
long advocated a modernization of the laws affecting satellite
television programming. I am also pleased that an agreement was reached
to have the Senate consider legislation which will facilitate satellite
local to local service in small and rural markets, as this will be
important to bring local programming to my constituents.
  I have joined with my colleague from Delaware, Joe Biden, in
sponsoring legislation to continue the important programs he has
championed--the COPS program and the Violence Against Women Act. This
measure provides funding for these programs. Also contained in the
package is funding for the State Side program under the Land and Water
Conservation Fund. I had joined with our late colleague, Senator
Chafee, in sponsoring legislation to provide these funds for the first
time in several years to promote open space and recreation
opportunities at the discretion of our State governments.
  The package maintains the commitment we made with the passage of the
Balanced Budget Act in 1997 to prioritize education. Since the passage
of the 1997 bill, we have followed through with substantial increases
in funding for our important education programs and have done so in a
manner which promotes flexibility.
  Finally, Mr. President, I would like to discuss the Finance
Committee's Medicare, Medicaid, & SCHIP Refinement Act of 1999, H.R.
3426.
  A little more than two years ago Congress passed and the President
signed into law the historic Balanced Budget Act of 1997. This
important legislation has been instrumental in making possible the
budget surpluses we are beginning to see materialize.
  However, not all of the consequences of the Balanced Budget Act have
been positive, and many of them were unintended. Two years of
implementation allowed us to identify some areas, particularly related
to Medicare provider reimbursement, that needed to be revisited.
  The Finance Committee carefully monitored the impact of the Balanced
Budget Act on various categories of health care providers. In fact,
this year the Committee held a number of hearings on Medicare and
Medicaid matters.
  Throughout the course of these hearings, providers presented us with
compelling testimony about significant fiscal and patient care-related
problems that have resulted, unintentionally, from decisions the
Congress made in the Balanced Budget Act of 1997.

[[Page S15044]]

  Mr. President, let me be clear that we should be proud of the program
improvements and the corresponding savings achieved through the
Balanced Budget Act. We had no intention of fundamentally undoing that
work.
  However, there were problems that needed to be addressed to make sure
we pay providers appropriately to meet the real health care needs of
Medicare beneficiaries. At passage, the 1997 BBA reduced Medicare and
Medicaid spending by nearly $120 billion. This package restores $27
billion over 10 years to address unintended consequences of the
original law.
  New provisions in this bill restore some $17 billion in funding over
10 years. Accordingly, in October, the Committee marked up and
overwhelmingly passed a package of payment adjustments to fine tune the
policies enacted through the Balanced Budget Act. This package was
developed in a bipartisan manner with the close cooperation of Senator
Moynihan and his staff.
  For the past several days, we have been working to reconcile this
Finance Committee package with a similar bill passed by the House of
Representatives last Friday.
  The bill before us today represents an excellent compromise between
the House and Senate bills, with input from the Administration.
  The payment adjustments included in the House-Senate compromise
package will benefit Medicare beneficiaries by improving payment to all
sectors of the health care market place--including hospitals,
physicians' offices, nursing facilities, community health centers, and
home health care agencies, among many others. In addition, the package
includes other technical adjustments to Medicaid and the State
Children's Health Insurance Program.
  The provisions included in the package are consistent with a few
basic goals I have tried to work toward from the beginning of this
process. First, I felt that the overriding purpose of this package
should be to address the most significant problems resulting from BBA
policies.
  In my view, larger Medicare reform continues to be an important
objective. However, even the White House ultimately agreed this was
neither the moment nor the legislative vehicle by which to pursue that
goal.
  The Senate Finance Committee will continue in its efforts to develop
a bipartisan consensus on broader Medicare reform when we resume our
work in January. That will be the time and place to consider lasting
and far-reaching Medicare reforms.
  Second, we sought to keep payment adjustments focused on areas in
which we face demonstrated problems resulting from the Balanced Budget
Act. Furthermore, we tired to make short-term adjustments in payment
practices without revisiting the underlying policies set forth in the
BBA.
  Finally, it was particularly important to me not to let this become a
partisan process. These are not partisan issues and I have tried to
resist any effort to make them so. I am hopeful that this compromise
can be supported by all Senators.
  The provisions included in the package reflect the priorities of
Senators on and off the Finance Committee. In addition, like all of you
I have consulted extensively with my own constituents in Delaware, as
well as with national health care and beneficiary organizations. They
are strongly supportive.
  Mr. President, the provisions included in this conference agreement
make some significant contributions to protecting the care provided to
seniors in nursing homes. We provide increased funding for medically
complex patients and for rehabilitation services in nursing, homes, and
we help these facilities' transition to the new payment systems
required under the Balanced Budget Act. The Agreement also includes
something I consider to be of vital importance to Medicare
beneficiaries; we put a moratorium on the arbitrary annual dollar cap
on the amount of rehabilitation therapy services a beneficiary could
access. In addition, we mitigate the impact of scheduled reductions for
home health agencies, increase funding and regional payment equity for
teaching hospitals, and enhance programs for rural health care
facilities.
  The Conference Agreement also includes important protections for
hospitals as the new outpatient prospective payment system goes into
effect next year. I am especially pleased at the steps we have taken to
stabilize the Medicare+Choice program, so that beneficiaries can count
on Medicare health plan choices in the future.
  Mr. President, today we have an opportunity to solve the problems
that have been interfering with the ability of the provider community
to make sure our constituents receive the high quality health care they
deserve, without retreating from the important policy reforms enacted
in the Balanced Budget Act. I ask all of you to join me in supporting
this important legislation.
  Mr. GRAHAM. Mr. President, today, the Senate is considering a multi-
billion package focused on adjusting certain Medicare provisions in the
Balanced Budget Act of 1997.
  That historic legislation made changes in payment structures for
programs and providers within Medicare and Medicaid.
  Many in the Medicare provider community are concerned that these
changes have negatively affected their ability to provide adequate
access and quality care to their patients.
  Mr. President, I commend the Administration and my colleagues for
completing the difficult task of designing a bill that addresses many
of these concerns.
  I have heard from hospitals, physicians, community health centers and
a variety of other Medicare providers, all of whom are very concerned
that the quality of care provided to Medicare beneficiaries may decline
significantly if cuts to provider payments are not softened.
  There are many provisions in this bill that I would like to see
enacted. These include a moratorium on the $1500 therapy cap, support
for the skilled nursing facilities, cancer centers and disproportionate
share hospitals, and enhancements to Medicaid and the Children's Health
Insurance Program.
  But while there is some clear evidence that Congress may have erred
in designing some of the Medicare provisions in the Balanced Budget
Act, that fact does not relieve us of our fiduciary responsibilities to
the American public.
  Our commitment to revisiting Medicare provider adjustments must be
accompanied by a commitment to pay for these actions.
  By refusing to pay for this bill, we are funding changes to a
balanced budget agreement in a way that steals from future generations.
  This is an irony we cannot afford.
  Mr. President, allow me to explain.
  To date, we have spent all of our anticipated revenue for Fiscal Year
2000. Any further government spending comes straight from the Social
Security surplus.
  It is easy to spend money when it is not your own.
  Didn't we prove that during the last thirty years of ``borrow and
spend'' budgeting--a period in which our national debt rose from $366
million in 1969 to $5.6 billion today?
  Let's not start down that slope again.
  Mr. President, I clearly remember the day we passed the Balanced
Budget Act in 1997. We all congratulated each other on a job well done.
  We slapped each other on the back and took full and deserved credit
for balancing the budget for the first time in a generation.
  Now we are facing up to some of the realities of that great
achievement.
  Just as we took responsibility for our accomplishments in 1997, we
must now take responsibility for fixing some of our mistakes.
  If Congress believes that provider relief is necessary, then it must
exercise fiscal responsibility and pay for it with true offsets--not
surplus funds.
  Congress has clearly stated that ensuring retirement security for the
American public is its top priority.
  Democrats and Republicans have made clear that saving Social Security
and Medicare must be the first items of business on any legislative
agenda.
  But future generations are depending on our deeds--not our words.
  Mr. President, we must hold true to our commitment to ensure Social
Security's solvency until 2075 and to strengthen and modernize Medicare
before we look to the surplus for any other purpose.
  During his State of the Union Address, President Clinton made a
commitment to bolster Social Security and

[[Page S15045]]

Medicare. Congress has joined him in that commitment.
  A test of our commitment to protecting Social Security surplus is
being played out on the Senate floor today.
  Since the beginning of this debate I have offered proposals to
restore payments to providers without stealing from Social Security and
Medicare.
  When the Finance Committee marked up its bill, I offered an amendment
that would have fully offset the cost of this package through a series
of modest, non-Medicare-related revenue increases.
  It was my hope that the Committee would have shown the same
enthusiasm for fiscal responsibility as it did two years ago.
  However, it thwarted our commitment to save Social Security and
Medicare by a vote of 14 to 6.
  I also offered an amendment that would have put a down payment on
true Medicare reform, while saving the Medicare system $4 billion over
10 years--nearly one third of the overall cost of the bill.
  This focused on five proven and tested proposals, including a
competitive bidding for part B services provision that was passed
unanimously by the Finance Committee in 1997.
  By fulfilling our obligation to help the Medicare system provide
quality care while promoting cost efficiency, this amendment embraced
the same principles that helped us achieve a balanced budget in 1997.
  But our dedication to these principles now appears to have vanished.
  The audacity of paying for this bill with the Social Security surplus
is exacerbated by the fact that it includes provisions that actually do
away with cost saving programs enacted in the Balanced Budget Act of
1997
  Allow me to direct your attention to two of the less heralded
provisions in this package.
  First, the postponement of the enactment of the ``inherent
reasonableness'' provision in the Balanced Budget Act of 1997 until
final regulations are published. This provision prevents beneficiaries
from realizing millions of dollars in savings by blocking the
government's ability to negotiate rates with home oxygen and durable
medical equipment suppliers.
  By reimbursing providers on a market basis, the competitive bidding
process will save the system money by setting a true price for medical
goods and services, while ensuring that beneficiaries continue to
receive comprehensive coverage.
  By putting off the implementation of this provision, potentially for
years, we are essentially taking $500 million of potential savings out
of the pockets of Medicare beneficiaries.
  Second, is the inclusion of the following language in the conference
report concerning the risk adjuster for Medicare+Choice plans:
  ``The parties to the agreement note that in 1997, when Congress
required the Secretary to develop a risk adjuster for Medicare+Choice
plans, it was concerned that those plans that treated the most severely
ill enrollees were not adequately paid. The Congress envisioned a risk
adjuster that would be more clinically based than the old method of
adjusting payments. The Congress did not instruct HCFA to implement the
provision in a manner that would reduce aggregate Medicare+Choice
payments. In addition, the Congressional Budget Office did not estimate
that the provision would reduce aggregate Medicare+Choice payments.
Consequently, the parties to the agreement urge the Secretary to revise
the regulations implementing the risk adjuster so as to provide for
more accurate payments, without reducing overall Medicare+Choice
payments.''
  Mr. President, the Health Financing Administration (HCFA) currently
estimates that risk adjustment will decrease plan payments by
approximately $10 billion over ten years. This estimate is based on the
additional money that plans are paid relative to fee-for-service
Medicare after adjusting for health status. Plans that serve a higher
proportion of sicker beneficiaries would not see a decrease in
payments. Plans that skim the healthiest patients from the Medicare
population would see the biggest decrease in payments.
  Since first learning that HCFA was planning to decrease plan payments
under risk adjustment, lobbyists for the managed care industry have
been claiming that congressional intent was for risk adjustment to be
budget neutral, and they have been lobbying this issue on the Hill.
They tried to get it into the Senate Finance Committee report but were
unsuccessful. The language was included in the House Ways and Means
committee report, however. The House-Senate agreement language comes
straight from the House report.
  It's telling that the statute does not explicitly state that risk
adjustment should be budget neutral. In addition, it's telling that
lobbyists for the managed care industry have not publicly stated that
congressional intent was to make risk adjustment budget neutral.
  In terms of what congressional intent actually was in BBA 97--I think
the story is not entirely clear. It could be that no one thought much
about the issue. But regardless of whether you are sympathetic to
managed care plans or not, it is disingenuous to claim definitively
that congressional intent was not to reduce plan payments in BBA.
  This is an outrage Mr. President.
  I believe that we should correct mistakes that were made in the BBA
and pay for those mistakes. Equally, it is my feeling that we should
seize the opportunity to make fundamental reforms to the Medicare
program in order to modernize and improve services for Medicare
beneficiaries.
  In passing this legislation, we are trading fiscal responsibility for
fiscal recklessness. We are ignoring innovation in favor of the status
quo.
  Mr. President, I am committed to working to find a solution to the
difficult problem of bringing Medicare into the 21st Century and
keeping it solvent.
  It was my hope that we would have the opportunity to vote today on a
package that represented good public policy and included an offset that
upheld our commitment to fiscal responsibility.
  I regret that this is not the case.
  But most of all, I regret the overt lack of concern that this body
has shown for the future generations whose Medicare and Social Security
benefits hang in the balance.
  Thank you, Mr. President.
  Mr. BIDEN. Mr. President, I am pleased that the Conference Report
before the Senate contains the State Department authorization bill.
  With enactment of this legislation, we will finally--after three
years of effort--approve critical legislation to authorize the payment
of nearly $1 billion in back dues to the United Nations. Enactment of
this legislation will serve, I believe, three important purposes. It
should finally end the long-festering feud between the U.N. and
Washington about our unpaid back dues; it should bring much-needed
reforms to the world body so that it can more effectively perform its
missions; and it should, I hope, end the debate about the utility of
the U.N., and restore bipartisan support in Congress for the U.N.
system.
  The agreement before us will allow us to pay $926 million in arrears
to the United Nations contingent upon the U.N. achieving specific
reform conditions, or ``benchmarks,'' to borrow the Chairman's
expression.
  The first set of these conditions can be readily certified--thereby
releasing $100 million immediately. The second and third set of
conditions will be difficult to achieve. But I have great confidence in
our ambassador to the United Nations, Richard Holbrooke. And I believe
that with the money on the table--that is, with the assurance that the
U.S. payment will be available--the reforms will be easier to obtain
then they might otherwise be.
  The State Department authorization bill contains several other
important provisions which I would like to highlight briefly.
  First, the bill authorizes $4.5 billion in funding over the next five
years for construction of secure embassies overseas. The tragic embassy
bombings in East Africa in August 1998 underscored the current
vulnerability of our embassies to terrorist attack. Simply stated, the
large majority of our embassies around the world do not meet current
security standards. Thousands of U.S. government employees--both
Americans and foreign nationals--are at risk, and we must do all that
we can to protect them. In addition to authorizing funding, this bill
codifies many important security standards, including the

[[Page S15046]]

requirement of that embassies be set back 100 feet from the street, and
the requirement that all agencies be co-located in the embassy
compound.
  All this is important. But what is essential is that we provide the
actual funding. So far, aside from last fall's emergency appropriations
bill, funding for embassy security has fallen far short of need. The
President requested $3 billion in advance appropriations in his budget
request, which was rejected by the Appropriations Committees. We must
give our attention to funding this priority matter next year.
  Second, the bill provides for the establishment of a Bureau of
Verification and Compliance in the Department of State to monitor arms
control and non-proliferation agreements. In his plan for the
integration of the Arms Control and Disarmament Agency into the State
Department, the President proposed that the functions of verification
and compliance be handled by a ``Special Adviser'' to the
Undersecretary of State for Arms Control and International Security.
  We think the Administration's proposal is ill-advised. Given the way
the State Department operates--where key policy battles are waged among
bureaus at the Assistant Secretary level --this ``adviser'' would be a
weak bureaucratic actor, and the function of assuring compliance with
arms control treaties and non-proliferation regimes would thereby be
unacceptably diminished. Therefore, the conference report includes a
provision which requires that this important duty be handled by an
Assistant Secretary of State for Verification and Compliance.
  Third, the bill reauthorizes Radio Free Asia (RFA) for another ten
years. RFA, which was established in 1994 pursuant to legislation I
introduced, broadcasts news and information to the People's Republic of
China and other non-democratic states in East Asia. I am pleased that
Congress has given its further stamp of approval to this important
instrument of American foreign policy.
  It is fitting that this bill is named for two devoted public servants
who were deeply involved in the development of foreign policy
legislation for the last two decades--James Nance and Meg Donovan.
  Admiral James W. Nance, known to everyone as ``Bud'', served as staff
director of the Committee on Foreign Relations for most of the 1990s,
working with his long-time friend, the Chairman of the Committee,
Senator Helms. Admiral Nance was a steady hand in guiding the Committee
staff for so many years, and was integral to the initial development of
the ``Helms-Biden'' legislation in 1997.
  Meg Donovan was long-time staffer for our House counterpart
committee, serving under Chairman Dante Fascell. After Chairman Fascell
retired, Meg worked closely with the Foreign Relations Committee on
behalf of Secretary Christopher, and then Secretary Albright, as a
senior deputy in the Bureau of Legislative Affairs. Meg's advice and
counsel was important on dozens of occasions--not only to senior State
Department officials but also to our committee.
  Bud Nance and Meg Donovan were both deeply committed to a bipartisan
foreign policy. They were both taken from us too soon. It is therefore
in tribute to them that we have named this bill--which represents an
important act of bipartisanship--in their honor.

              the need for small business superfund relief

  Mr. LOTT. Mr. President, as we end this session of the 106th
Congress, it is appropriate to reflect on what we have accomplished and
what remains to be done. In particular, Mr. President, I would like to
focus on our efforts to enact Superfund reform.
  As my colleagues know, I have fought for many Congresses to free our
nation's recyclers from needless Superfund liability. I could not be
more pleased to finally accomplish this goal by including the text of
mine and Senator Daschle's bill, S. 1528, in this year's final
appropriations package. I know many of you, on both sides of the aisle,
join me in celebrating this long-awaited reform of an unfair system.
  However, our work is not done, Mr. President. Like the recyclers,
thousands of small businesses are needlessly dragged into the Superfund
web each year. Although Superfund is intended to clean up the nation's
hazardous waste sites, small businesses are being sued for simply
throwing out their trash. Certainly we can all agree that potato peels
and cardboard boxes are far from toxic waste.
  Yet, another year has gone by without reform for small business. In
that year, 165 small businesses in Quincy, Illinois were forced to pay
over $3 million for legally sending trash to the local landfill. In
that year, Administrator Browner again publicly stated her desire to
get small businesses out of Superfund. In that year, reform efforts
were again stymied by those who want to hold incremental reforms
hostage to comprehensive fixes.
  Mr. President, we had the opportunity this year to enact targeted
Superfund reform for small businesses, but we did not do so. Senators
and Congressmen on both sides of the aisle, as well as the EPA, agree
that we should provide the relief so desperately needed by the small
business community. For nearly a decade, inaction has left thousands of
small business owners with no choice but to mortgage their businesses,
their employees and their future to pay for damage they did not do.
Small businesses struggle to survive under the threat of thousands of
dollars in penalties and lawsuits--all for legally disposing of their
garbage.
  That's why, Mr. President, I will continue to work to free innocent
small businesses from Superfund liability. I hope my colleagues on both
sides of the aisle will join me in the continued fight for fair
treatment of the small businesses that keep our nation's economy
strong.
  Mr. STEVENS. Mr. President, I have some comments on issues raised by
the conference report to the Interior appropriations bill.
  On the matter of contract support costs for Bureau of Indian Affairs
and Indian Health Service programs operated by native organizations
under the provisions of P.L. 93-638, I am pleased that we have been
able to add $10 million to BIA funding and $25 million to IHS funding
over fiscal year 1999 levels to support additional payments of contract
support costs for these programs. This new funding will allow BIA and
IHS to bring existing programs' contract support cost payments closer
to the full amount of negotiated support and will allow a limited
number of new and expanded programs in both agencies to go forward.
  However, I am concerned that the tribes have been operating, in the
distribution of contract support costs, under the assumption that
contract support costs are an entitlement under the law. The House and
Senate committees on appropriations have taken exception to that
interpretation and have tried to persuade the IHS to change its
allocation methodology and to set reasonable limits on the number and
size of new and expanded contracts it executes consonant with resources
made available by Congress for the payment of contract support costs.
The Federal circuit's court of appeals in its October 27, 1999 decision
in Babbitt v. Oglala Sioux Tribal Public Safety Department (1999 WL
974155 (Fed. Cir.)) has now affirmed that contract support costs are
not an entitlement, but rather are subject to appropriations. Contract
support cases raising similar legal issues are pending in the 10th
circuit court of appeals and in various Federal district courts around
the country. The Federal circuit's decision was correct both in its
holding and in its reasoning and should serve as precedent for other
pending cases. To assume that Congress would create a system in which
tribes receive the majority of their contract support costs through
funds appropriated to the Indian Health Service or Bureau of Indian
Affairs and which requires tribes to seek the balance in court through
the claims and judgment fund turns logic on its ear. ``Subject to
appropriations'' means what it says.
  The Indian Health Service has made improvements to its distribution
methodology in fiscal year 1999 but continues to distribute funds at
varying rates for different contracts, compacts and annual funding
agreements. More disturbing, the current IHS system pays contractors
with high overhead costs (relative to program costs) at the same
percentage rate as it pays contractors with low overhead rates,
rewarding inefficient operators and creating an incentive to
maximize overhead costs.

[[Page S15047]]

  The bill allows the funding in FY 2000 of a limited number of new and
expanded contracts through the Indian Self Determination (ISD) Fund of
$10 million. It is expected that, once the contract support cost total
(paid at an average rate not to fall above or below the average rate of
payment of contract support costs to existing contractors in FY 2000)
for new and expanded programs has reached $10 million, IHS will not
execute any further new or expanded contracts until Congress has
provided funds specifically earmarked for that purpose. Existing IHS
policy does not permit reduction of existing service providers' funding
in order to fund new entrants into the system. This bill does not
modify that policy. If funds remain in the ISD fund after all new
entrants have been accommodated, those funds should be distributed
equitably across existing programs, with particular emphasis on the
most underfunded.
  The Indian Health Service should include as part of its FY 2001
budget request a detailed cost estimate for new and expanded contracts
so that Congress will be aware of anticipated need when it establishes
a funding level for an ISD account in FY 2001. Congress and the courts
have made it plain that IHS can no longer enter into new and expanded
contracts without regard to the level of funding provided for that
purpose by Congress. Congress will be aided in its efforts to establish
a reasonable level of support for new and expanded contracts if the IHS
provides accurate estimates of anticipated need as part of the budget
process.
  The authorizing committees in the Senate and House are encouraged, in
consultation with the Indian Health Service, the Bureau of Indian
Affairs and tribal organizations, to develop timely proposals to
address the longer term issues surrounding contract support costs,
including the apparent contradiction between the self-determination
principles laid out in P.L. 93-638 and the legal requirement that
contract support costs are ``subject to appropriations.''
  Our committees encourage the transition of employees from Federal to
tribal employment as part of self-determination contracts and self-
governance compacts and strongly believe that the IHS should not
provide disincentives for such transfers. We have noted that each year
start-up costs from new and expanded contracts for the previous year
are returned to the base for distribution to other contracts. These
funds, currently estimated at $4.5 million, will be available in FY
2000. With my support, the House and Senate Committees on
Appropriations will soon be sending a letter to the IHS requesting that
it set aside a portion of base contract support funds associated
with prior year start up costs for use as a transition fund for costs
associated with employees who elect to transfer from Federal employment
to tribal employment during the period after which contract support
costs for individual contracts have been determined for that year. To
the extent set aside funds are not needed for employee transition, they
should be distributed equitably among existing contractors, with
emphasis on the most underfunded contracts.

  In the last fiscal year and the one we are funding now, we will have
added a total of $60 million in new contract support cost funding to
the IHS budget. We know that these funds are critical to the success of
Indian-operated health programs and that shortfalls still remain.
However, in the current environment of caps on discretionary spending,
we must develop policies that support the self-determination principles
embodied in P.L. 93-638 while taking into account the fiscal realities
of limits on funding for these programs. I look forward to receiving
recommendations from the authorizing committees, the IHS and BIA, and
tribal organizations which will address these issues in time for the
committees' consideration during the FY 2001 appropriations cycle.
  The conference report also includes a provision to authorize the
investment of Exxon Valdez oil spill--or EVOS--settlement funds outside
of the Treasury. This section is the exact language of legislation, S.
711, reported by the Senate Energy and Natural Resources Committee
earlier this year, and represents an accord struck among many
interests. The details of this accord are discussed more fully in the
committee report (Senate Rpt. 106-124) accompanying S. 711. These
interests include Koniag, a native regional corporation with a great
interests in seeing that their native lands are valued at the level
they feel appropriate given their prominence in the oil spill zone.
  The continuing availability of EVOS funds for habitat conservation
raises another important issue I hope can be resolved in the coming
months. It regards revenue sharing payments arising from oil spill area
acquisitions. New additions to refuge lands, such as those from EVOS
settlement land acquisitions, qualify adjacent communities to increased
federal payments in lieu of taxes under the Revenue Sharing Act of
1935.
  In 1995, the U.S. Fish and Wildlife Service agreed to purchase from
Old Harbor, Akiok-Kaguyak and Koniag Native Corporations over 160,000
acres of land within the Kodiak National Wildlife Refuge. These lands
were acquired using funds derived from the consent decree in
settling the United States' and State of Alaska's civil claims against
Exxon, Inc. for damages caused by the Exxon Valdez oil spill in 1989.

  The Exxon Valdez Trustee Council, which was formed to implement the
consent decree, adopted its restoration plan in 1994 with habitat
protection as a key component of the plan to recover the damages caused
by the oil spill. The trustee council subsequently solicited interest
from land owners throughout the spill zone and ranked the habitat based
on its restoration value for the species and services injured by the
spill. The council, working through State and Federal land managing
agencies, commissioned land appraisals and authorized negotiations with
land owners.
  Negotiated agreements with land owners, resulting in significant
habitat acquisitions, exceeded the appraisals approved by Federal and
State appraisers. The trustee council in its resolutions authorizing
these acquisitions with settlement funds made several findings, I'm
advised that these findings included the following:
  ``Biologists, scientists and other resource specialists agree that,
in their best professional judgment, protection of habitat in the spill
area to levels above and beyond that provided by existing laws and
regulations will likely have a beneficial effect on recovery of injured
resources and lost or diminished services provided by these
resources.''
  ``There has been widespread public support for the acquisition of
these lands, locally, within the spill zone and nationally.''
  ``It is ordinarily the Federal Government's practice to pay fair
market value for the lands it acquires. However, due to the unique
circumstances of this proposed acquisition, including the land's
exceptional habitat for purposes of promoting recovery of natural
resources injured by EVOS and the need to acquire it promptly to
prevent degradation of the habitat, the trustee council believes it is
appropriate in this case to pay more than fair market value for these
particular parcels.''
  ``This offer is a reasonable price given the significant natural
resource and service values protected; the scope and pervasiveness of
the EVOS environmental disaster and the need for protection of
ecosystems . . .''
  The trustee council-commissioned appraisals--which were performed in
accordance with Federal regulations--for the three large parcels
acquired within Kodiak National Wildlife Refuge are estimates of
fair market value. However, they varied substantially from the
landowners' appraisals and what they believed to be their fair market
value. The landowners rejected the initial offers made by the U.S. Fish
and Wildlife Service to purchase the lands based on the trustee
council's commissioned appraisals.

  The estimates of fair market value based on the Federal appraisals
are below the prices actually paid for the various parcels of land, and
they do not consider the purchase price paid in these and other
governmental acquisitions in Alaska. The trustee council, through its
public process, difficult negotiations and subsequent findings
determined that the price paid for the lands was a ``reasonable price''
for a variety of reasons including past Federal large scale
acquisitions.

[[Page S15048]]

  The acquisition in fee of these three large parcels within Kodiak NWR
now requires the U.S. Fish and Wildlife Service to make payments in
lieu of taxes to the Kodiak Island borough in accordance with the
Revenue Sharing Act of 1935. The act directs the agency to make such
payments based on the fair market value of acquired lands.
  The service is currently using the federally approved appraisals
estimating fair market value of these three large parcels as the basis
for computing the revenue sharing payment to the borough. The borough
has rightly challenged the service's determination of fair market value
based on the unique circumstances of these acquisitions and the
findings made by the trustee council in approving funds for these
acquisitions.
  A plain reading of the Revenue Sharing Act (which authorizes the
Secretary of the Interior to make refuge revenue sharing payments)
requires that the determinations of fair market value be made in a
manner that ``the Secretary considers to be equitable and in the public
interest.'' Clearly, the public interest associated with these unique
acquisitions has been well documented in the findings of the trustee
council.
  The Revenue Sharing Act imposes no legal impediment for the Secretary
to make a determination of fair market value that incorporates the
unique circumstances of these acquisitions and the specific findings
and actions taken by the trustee council. Thus, I urge the Secretary to
review the Kodiak Island borough's appeal to the service's
determinations for making revenue sharing payments and do what is fair
and equitable as called for by the act.
  These are unique circumstances that exist nowhere else in the
United States and are limited in Alaska to lands acquired in the Exxon
Valdez spill zone with settlement funds. Thus, there should be no
consequences for how revenue sharing payments are computed for service
acquired lands in other parts of Alaska or throughout the rest of the
country.

  At this opportunity, upon the passage of another year's funding for
the Federal and Indian lands management agencies, I must call to the
attention of my colleagues and to the attention of the President of the
United States, an issue that troubles me deeply. Over the years, our
Government has made commitments to native Americans which it has not
kept. Many Americans thought that practice ended with the new, more
enlightened self-determination approach to Indian policy. But as one of
Alaska's representatives in the Senate, members of the President's
staff made personal promises to me just last fall on behalf of the
native people of the Chugach region which have not been kept.
  In 1971 Congress passed the Alaska Native Claims Settlement Act
(ANCSA). The act cleared the way for Alaska native people, including
the Chugach natives, to receive title to a small portion of their
traditional lands as settlement of their aboriginal land claims. The
act also cleared the way for the additional millions of acres to our
national parks, wildlife refuges, forests, and wilderness areas.
Allowing native people to develop their lands freed them from economic
bondage to the Federal Government. No longer would they have to depend
exclusively on the benevolence of the Federal Government for hand-outs.
They could create their own jobs, generate their own income, and
determine their own destiny. But only if they had access to their
lands.
  Both the administration and the Congress recognized the lands would
be virtually valueless if there was no way to get to them. The Claims
Act recognized that native lands were to be used for both traditional
and economic development purposes. Alaska natives were guaranteed a
right of access, under law, to their lands across the vast new parks,
refuges, and forests that would be created.
  In 1971 and again in 1982, under the terms of the Chugach Native Inc.
settlement agreement, the Federal Government made a solemn vow to
ensure the Chugach people had access to their aboriginal lands. Now, a
quarter of a century later, that commitment has not been fulfilled.
Many of the native leaders who worked with me to achieve the landmark
Native Land Claims Settlement Act have died after waiting for decades
without seeing that promise honored. Last year, Congressman Don Young,
chairman of the House Resources Committee, added a provision to the
House Interior appropriations bill that required, by a date certain,
the Federal Government to live up to the access promises it made to the
Chugach natives decades ago. In the conference last fall on the omnibus
appropriations bill, the administration spoke passionately and
repeatedly against the provision.

  Why? They fully admitted the obligation to grant an access easement
exists. They acknowledged further that access delayed is access denied
and that further delays were harmful to the Chugach people. They
opposed the provision on the grounds that it was not necessary since
they were going to move with all due haste to finalize the easement
before the end of 1998. Katie McGinty, then head of the President's
Council on Environmental Quality sat across from me, looked me in the
eye, and promised me they would fulfill this long overdue promise
before the end of the year.
  She even offered to issue a ``Presidential proclamation'' promising
once again to do what had already been promised and promised and
promised. My staff worked with OMB on the content of such a
proclamation, but I told them it would not be necessary. I would take
her at her word and believed the administration would live up to the
personal commitment she made to me.
  Here we are a year later. Chugach still has not received its
easement. Ms. McGinty is gone, but her commitment on behalf of this
administration remains. It is now the responsibility of others to
ensure the promises she made to me and to Alaska's native people are
kept.
  Congressman Young's House resources Committee has reported a bill,
H.R. 2547, to address this issue legislatively, in the hope of forcing
the administration to do what it has promised to do. Senator Murkowski
has been tireless in his efforts to get the Federal Government to live
up to the promises made to Alaskans concerning access to our State and
native lands. I support those efforts.
  But I take the time today to say clearly to this administration that
the promises made by our Government to the Chugach people for access to
their lands--and to me personally as their representative--must be
honored. Make no mistake, if the promises made to me by officials in
this administration last fall are not lived up to soon, if they oppose
the efforts of Congressman Young and Senator Murkowski on this issue,
if they continue to obfuscate and ``slow roll'' this commitment, it
will be clear to all that his administration does not perceive the true
meaning of Robert Service's memorable phrase: ``A promise made is a
debt unpaid!''
  Mr. LOTT. Mr. President. On behalf of myself and my cosponsor,
Minority Leader Daschle, I would like to insert in the Record a
legislative history which describes the purpose of each section of S.
1528, the Superfund Recycling Equity Act of 1999. Throughout the
negotiations of this language there has been quite a bit of
misrepresentation of the purpose of this bill. I hope this will be
useful in clearing the confusion.
  Mr. President, I ask unanimous consent that the legislative history
be inserted in the Record at this point.

                    Legislative History for S. 1528

                  section 127--recycling transactions

                                Summary

       The Superfund Recycling Equity Act of 1999 (the language of
     S. 1528) seeks to correct the unintended consequence of
     CERCLA that actually discourages legitimate recycling. The
     Act recognizes that recycling is an activity distinct from
     disposal or treatment, thus sending material for recycling is
     not the same as arranging for disposal or treatment, and
     recyclable materials are not a waste. Removing the threat of
     CERCLA liability for recyclers will encourage more recycling
     at all levels.
       The Act has three major elements. First, it creates a new
     CERCLA Sec. 127 which clarifies liability for recycling
     transactions. Second, it defines those recycling transactions
     for which there is no liability by providing that only those
     persons who can demonstrate that they ``arranged for the
     recycling of recyclable material'' as defined by the criteria
     in sections 127(c) through (e) are not liable under section
     107(a)(3) or (a)(4). The specific definition of ``arranged
     for recycling'' varies depending upon the recyclable material
     involved. Third, a series of exclusions from the liability
     clarification are specified such that

[[Page S15049]]

     persons who arranged for recycling as defined above may still
     be liable under CERCLA sections 107(a)(3) or (4) if the party
     bringing an action against such person can prove one of a
     number of criteria specified in Sec. 127(f). Lastly, new
     CERCLA Sec. Sec. 127(g) through 127(l) clarify several
     miscellaneous issues regarding the proper application of the
     liability clarification.

                               Discussion

       Sec. 127(a)(1) is intended to make it clear that anyone
     who, subject to the requirements of Sec. 127(b), (c), (d) and
     (e) arranged for the recycling of recyclable materials is not
     held liable under Sec. Sec. 107(a)(3) or (4) of CERCLA.
     Sec. 127 provides for relief from liability for both
     retroactive and prospective transactions.
       Sec. 127(a)(2) is intended to preserve the legal defenses
     that were available to a party prior to enactment of this Act
     for those materials not covered by either the definition of a
     recyclable material in Sec. 127(b) or the definition of a
     recycling transaction within the bill. It is not Congress'
     intent that the absence of a material or transaction from
     coverage under this Act create a stigma subjecting such
     material or transaction to Superfund liability.
       Sec. 127(b)(1) is meant to include the broad spectrum of
     materials that are recycled and used in place of virgin
     material feedstocks. Whole scrap tires have been excluded
     from eligibility under this provision because of concerns
     about the environmental and health hazards associated with
     stockpiles of whole scrap tires. Processed tires including
     material from tires that have been cut or granulated, are
     eligible for the benefits of this provision.
       The term ``recyclable materials'' is defined to include
     ``minor amounts of material incident to or adhering to the
     scrap material . . .'' This is because in the normal course
     of scrap processing various recovered materials may be
     commingled. An appliance may, for example, be run though a
     shredder that also shreds automobiles. As a result, the metal
     recovered from the appliance may come into contact with oil
     that entered the shredded incident to an automobile. Numerous
     other examples exist.
       Sec. 127(b)(1)(A) is intended to exclude from the
     definition of recyclable material shipping containers between
     30 and 3000 liters capacity which have hazardous substances
     other than metal bits and pieces in them. The terms
     ``contained in'' or ``adhering to'' do not include any metal
     alloy, including hazardous substances such as chromium or
     nickel, that are metallurgically or chemically bonded in the
     steel to meet appropriate container specifications.
       Sec. 127(b)(1)(B) means that any item of material which
     contained PCBs at a concentration of more than 50 parts per
     million (``ppm'') at the time of the transaction does not
     qualify as recyclable material. Material, which previously
     held a concentration of PCBs in excess of 50 ppm, but has
     been cleaned to levels below 50 ppm, would still qualify for
     exempt treatment. Item, in this context, is meant to apply
     only to a distinct unit of material, not an entire shipment.
       This legislation builds a test to determine what are
     recycling transaction that should be encouraged under the
     legislation and what are recycling transactions that are
     really treatment or disposal arrangements cloaked in the
     mantle of recycling. The test specified in 127(c) applies to
     transactions involving scrap paper, plastic, glass, textiles,
     or rubber. Transactions can be a sale to a consuming
     facility; a return for recycling, whether or not accompanied
     by a fee; or other similar agreement.
       Sec. 127(c), (d) and (e), the term ``or otherwise arranging
     for the recycling of recyclable material'' recognizes that
     while recyclables have intrinsic value they may not always be
     sold for a net positive amount. Thus a transaction in which
     one who arranges for recycling does not receive any
     remuneration for the material but rather pays an amount, less
     than the cost of disposal, still qualifies for the protection
     afforded by this Sec. 127.
       A commercial specification grade as referred to in
     Sec. 127(c)91), can include specifications as those published
     by industry trade associations, or other historically or
     widely utilized specifications are acceptable. It is also
     recognized that specifications will continue to evolve as
     market conditions and technologies change.
       For purposes of Sec. 127(c)(3), evidence of a market can
     include, but is not limited to: a third-party published price
     (including a negative price), a market with more than one
     buyer or one seller for which there is a documentable price,
     and a history of trade in the recyclable material.
       Sec. 127(c)(3) means that for a transaction to be deemed
     arranging for recycling, a substantial portion, but not all,
     of the recyclable material must have been sold with the
     intention that the material would be used as a raw material,
     in place of a virgin material, in the manufacture of a new
     product. The fact that the recyclable material was not, for
     some reason beyond the control of the person who arranged for
     recycling, actually used in the manufacture of a new product
     should not be evidence that the requirements of this Sec. 127
     were not met.
       Additionally, no single benchmark or recovery rate is
     appropriate given variable market conditions, changes in
     technology, and differences between commodities. Instead, a
     common sense evaluation of how much of the material is
     recovered is appropriate. For example, in order to be
     economically viable as a recycling transaction a relatively
     high volume of the inbound material is expected to be
     recovered for feedstocks of relatively low per unit economic
     value (such as paper or plastic), while a dramatically lower
     volume of material is expected to be recovered to justify the
     recycling of a feedstock of very high economic value (such as
     gold or silver).
       It is not necessary that the person who arranged for
     recycling document that a substantial portion of the
     recyclable material was actually used to make a new product.
     Instead, the person need only be prepared to demonstrate that
     it is common practice for recyclable materials that he
     handles to be made available for use in the manufacture of a
     new saleable product. For example, if recyclable stainless
     steel is sold to a stainless steel smelter, it is presumptive
     that recycling will occur.
       The first part of Sec. 127(c)(4) acknowledges the fact that
     modern technology has developed to the point were some
     consuming facilities exclusively utilize recyclable materials
     as their raw material feedstock and manufacture a product
     that, had it been made at another facility, may have been
     manufactured using virgin materials. Thus, the fact that the
     recyclable material did not directly displace a virgin
     material as the raw material feedstock should not be evidence
     that the requirements of Sec. 127 were not met.
       Secondary feedstocks may compete both directly and
     indirectly with virgin or primary feedstocks. In some cases a
     secondary feedstock can directly substitute for a virgin
     material in the same manufacturing process. In other cases,
     however, a secondary feedstock used at a particular
     manufacturing plant may not be a direct substitute for a
     virgin feedstock, but the product of that plant completes
     with a product made elsewhere from virgin material. For
     example aluminum may be utilized at a given facility using
     either virgin or secondary feedstocks meeting certain
     specifications. In this case, the virgin and secondary
     feedstock materials compete directly. A particular steel
     mill, however, may only utilize scrap iron and steel as a
     feedstock because of the design restrictions of the
     facility. If that mill makes a steel product that competes
     with the steel product of another mill, which utilizes a
     virgin feedstock, the conditions of this paragraph have
     been met. In this example, the two streams of feedstock
     materials do not directly compete, but the product made
     from them do. It is the intent of this paragraph that the
     person be able to demonstrate the general use for which
     the feedstock material was utilized. It is not the intent
     that the person show that a specific unit was incorporated
     into a new product.
       Section 127 provides for relief from liability for both
     retroactive and prospective transactions. However, an
     additional requirement is placed on prospective transactions
     in this paragraph such that persons arranging for such
     transactions take reasonable care to determine the
     environmental compliance status of the facility to which the
     recyclable material is being sent. Reasonable care is
     determined using a variety of factors, of which no one factor
     is determinant. The clause ``not procedural or
     administratrative'' is included to protect one who arranges
     for recycling from losing the protection afforded by Sec. 127
     due to a record keeping error, missed deadline or similar
     infraction by the consuming facility which is out of control
     of the person arranging for recycling. For transactions
     occurring prior to, or during the 90 days after, enactment of
     Sec. 127 the requirements of Sec. 127(c)(5) shall not be
     considered in determining whether Sec. 127 shall apply.
       The person arranging for the transaction must exercise
     reasonable care at the time of the transaction (i.e., at the
     time when the buyer and seller reach a meeting of the minds).
     Should a consuming facility's compliance record indicate past
     non-compliance with the environmental laws, but at the time
     the person arranged for the transaction the person exercised
     reasonable care to determine that the consuming facility was
     in compliance with all applicable laws, the transaction would
     qualify for relief under Sec. 127.
       In addition, the person must only determine the status of
     the consuming facility's compliance with laws, regulations,
     or orders, which directly apply to the handling, processing,
     reclamation, storage, or other management activity associated
     with the recyclable materials sent by the person. Thus, for
     example, a person who arranges for the recycling of scrap
     metal to a consuming facility would not be responsible for
     determining the consuming facility's compliance with
     regulations governing the consuming facilities production of
     its product, just the consuming facility's compliance with
     management of the scrap metal as an in-feed material.
       It is common practice in the industry for scrap processors
     to otherwise arrange for the recycling of a secondary
     material through a broker. The broker chooses to which
     consuming facility the secondary material will be sold. In
     such cases, it is the responsibility of the broker, not
     the original person who entered into the transaction with
     the broker, to take reasonable care to determine the
     compliance status of the consuming facility. Likewise, a
     scrap processor may sell material to a consuming facility
     which in turn arranges for recycling of all or part of
     that material to another consuming facility. It is only
     the responsibility of the scrap processor to inquire into
     the compliance status of the party he arranged the
     transaction with, not subsequent parties.

[[Page S15050]]

       In determining whether a person exercised reasonable care,
     the criteria to be applied should be considered in the
     context of the time of the transaction. Thus, when looking at
     ``the price paid in the recycling transaction'' in
     Sec. 127(c)(6)(A) one should look not only at whether the
     price bore a reasonable relationship to other transactions
     for similar materials at the time of the transaction in
     question but should also take into account the circumstances
     surrounding the individual transaction such as whether it was
     part of a long term deal involving significant quantities. In
     addition, market conditions vary considerably over any given
     time period for any given commodity. Thus, when determining
     whether the price paid was reasonable, general market
     conditions, and variations should be considered.
       Congress recognizes that small businesses often have less
     resources available to them than large businesses. Thus,
     Sec. 127(c)(6)(B) acknowledges the fact that a small company
     may be able to determine less information about the consuming
     facility's operations than a large company. The size of an
     individual facility may be an important factor in the
     facility's ability to detect the nature of the consuming
     facility's operations.
       Sec. 127(c)(6)(c) requires a responsible person who
     arranges for the recycling of a recyclable material to
     inquire of the appropriate environmental agencies as to the
     compliance status of the consuming facility. Federal, State,
     and local agencies may not respond quickly (or respond at
     all) to inquiries made regarding a specific facility's
     compliance record. Sec. 127(c)(5) only requires a person to
     make reasonable inquiries; inquiries need not be made before
     every transaction. Inquiries need only be made to those
     agencies having primary responsibilities over environmental
     matters related to the handling, processing, etc. of the
     secondary materials involved in the recycling transaction.
       Sec. 127(d)(1)(B) provides that a person who arranges for
     the recycling of scrap metal must meet all of the criteria
     set forth in Sec. 127(c) as they relate to scrap metal and be
     in compliance with federal regulations or standards
     associated with scrap metal recycling that were in effect at
     the time of the transaction in question (not regulations
     promulgated or standards issued sequent to the time of the
     transaction). In addition, compliance must only be shown with
     Solid Waste Disposal Act regulations, which were promulgated
     and came into effect  subsequent to enactment of Sec. 127.
       Section 127(d)(1)(C) as modified by Sec. 127(d)(2) is not
     intended to exclude from liability relief such activities as
     welding, cutting metals with a torch, ``sweating'' iron from
     aluminum or other similar activities.
       Section 127(d)(3) defines scrap metal using the regulatory
     definition found at 40 CFR 261.1 The Administrator is given
     the authority to exclude, by regulation, scrap metals that
     are determined not to warrant the exclusion from liability.
     Because Sec. 127 grants relief from liability both
     prospectively and retroactively, any exclusion by the
     Administrator would only apply to transactions occurring
     after notice, comment and the final promulgation of a rule to
     such effect.
       Persons who arrange for the recycling of spent batteries
     must meet the criteria specified in Sec. 127(e), in addition
     to the criteria already discussed above and laid out in
     Sec. 127(c) for transactions involving scrap paper, plastic,
     glass, textiles, or rubber.
       The act of recovering the valuable components of a battery
     refers to the breaking (or smelting) of the battery itself in
     order to reclaim the valuable components of such battery. The
     generation, transportation, and collection of such batteries
     by persons who arrange for their recycling is an activity
     distinct from recovery. Thus, a person who generates,
     transports, and/or collects a spent battery, but does not
     themselves break or smelt such battery, is not liable under
     Sec. Sec. 107(a)(3) and (4) provided all other requirements
     set out in this Section are met.
       Section 127(e)(2)(A) provides that for spent lead-acid
     batteries, the party seeking the exemption must show that it
     met the federal environmental regulations or standards in
     effect at the time of the transaction in question (not
     regulations or standards issued subsequent to the time of the
     transaction).
       Persons who arrange for recycling as defined by the
     criteria specified in sections 127(a)-(e) and discussed above
     may be liable under CERCLA Sec. Sec. 107(a)(3) or (4) if the
     party bringing an action against such a person can
     demonstrate that one of the exclusions provided for in
     section 127(f) apply. Thus, the burden is on the government
     or other complaining party to demonstrate the criteria
     specified in section 127(f).
       Sec. 127(f)(1)(A) is intended to mean that an ``objectively
     reasonable basis for belief'' is not equivalent to the
     reasonable care standard. The objectively reasonable basis
     for belief standard is meant to be a more rigorous standard
     than the reasonable care standard.
       Sec. 127(f)(1)(A)(i) means that in order for the government
     to show that a recycling transaction should not receive the
     benefit of Sec. 127, it would have to prove that a person
     knew that the material would not be recycled. Moreover, it is
     not necessary that every component of the recyclable material
     be recycled and actually find its way into a new product in
     order to meet this requirement.
       For the purposes of Sec. 127(f)(1)(A)(ii), smelting,
     refining, sweating, melting, and other operations which are
     conducted by a consuming facility for purposes of materials
     recovery are not considered incineration, nor would they be
     categorized as burning as fuel or for energy recovery.
     However, nothing in this bill shall be construed to limit the
     definition of recycling so as to restrict, inhibit, or
     otherwise discourage the recovery of energy through
     pyroprocessing from scrap rubber and other recyclable
     materials by boilers and industrial furnaces (such as cement
     kilns).
       Sec. 127(f)(1)(A)(iii) sets forth certain obligations upon
     one who arranges for a recycling transaction which occurs
     within the first 90 days after enactment and had an
     objectively reasonable basis to believe that the consuming
     facility was not in substantive compliance with environmental
     laws and regulations. This is the corollary to
     Sec. 127(c)(5). The clause ``not procedural or
     administrative'' is included to protect one who arranges for
     recycling from losing the protection afforded by Sec. 127 due
     to record keeping error, missed deadline or similar
     infraction by the consuming facility which is out of control
     of the person arranging for recycling. There is no
     expectation that the person who arranged for recycling would
     necessarily have carried out any type of records search or
     made any extensive inquiries of administrative agencies.
       The provision in Sec. 127(f)(1)(B) is intended to apply to
     persons who intentionally add hazardous substances to the
     recyclable material in order to dispose or otherwise rid
     themselves of the substance.
       Sec. 127(f)(1)(C) is intended to mean that reasonable care
     is to be judged based on industry practices and standards at
     the time of the transaction. Thus, in order to determine if a
     person failed to exercise reasonable care with respect to the
     management and handling of the recyclable material, one
     should look to the usual and customary management and
     handling practices in the industry at the time of the
     transaction.
       In enacting Sec. 127(i) Congress clearly intends that the
     exemptions from liability granted by Sec. 127 shall not
     affect any concluded judicial or administrative action.
     Concluded action means any lawsuit in which a final judgment
     has been entered or any administrative action, which has been
     resolved by consent decree, which has been filed in a court
     of law and approved by such court. Furthermore, Sec. 127
     shall not affect any pending judicial action brought by the
     United States prior to enactment of this section. Any pending
     judicial action, whether it was brought in a trial or
     appellate court, by a private party shall be subject to the
     grant of relief from liability. For purposes of this section,
     Congress intends that any third party action or joinder of
     defendants brought by a private party shall be considered a
     private party action, regardless of whether or not the
     original lawsuit was brought by the United States.
     Additionally, any administrative action brought by any
     governmental agency but not yet concluded as set forth above,
     shall be subject to the grant of relief from liability set
     forth in this Sec. 127.
       Sec. 127(l)(1) preserves the rights of a person to whom
     Sec. 127(a)(1) does not apply to raise any defenses that
     might otherwise be raised under CERCLA. This is consistent
     with the explanation for Sec. 127(a)(2).
       By adding Sec. 127(l)(2) Congress intended to make certain
     that no presumption of liability is created against a person
     solely because that person is not afforded the relief granted
     by Sec. 127(a)(1).
  Mr. DASCHLE. This past Wednesday--the day we finally produced a
fragile budget agreement--marked the 199th anniversary of the first
time Congress ever met in Washington, DC. They met that day in what was
then an unfinished Capitol. Several times during the negotiations, the
thought occurred to me that, if the same people who are running this
Congress were in charge back then, the Capitol might still be
unfinished.
  These negotiations took longer, and were more difficult, than they
needed to be. The good news is: We finally have a budget that will keep
America moving in the right direction. Many longtime members and
observers of Congress say this has been perhaps the most confusing,
convoluted budget process they can remember.
  There have been a lot of technical questions these last few weeks
about accounting methods, economic growth projections, and CBO versus
OMB scoring. But the big question--the fundamental question that was at
the heart of this budget debate--is quite simple: Are we going to move
forward--or backward?
  We have chosen, thank goodness, to move forward. This budget
continues the progress we've made over the last seven years. It
maintains our hard-won fiscal discipline. It invests in America's
future. And it honors our values.
  This budget will put more teachers in our children's classrooms, and
more police on our streets. It will enable us to honor our commitments
to our parents, and fulfill America's obligations as a world leader.
And, it will enable us to protect our environment and preserve precious
wilderness areas for generations not yet born.
  I want to thank the Majority Leader, my Democratic colleagues,
especially Senator Harry Reid, our whip, and

[[Page S15051]]

Senator Robert Byrd, ranking member of the Appropriations Committee. I
also want to thank some of my colleagues on the other side of the
aisle, particularly Senator Stevens, chairman of the Appropriations
Committee.
  In addition, I want to acknowledge and thank President Clinton and
Vice President Gore, as well as the incredibly skillful, patient White
House negotiating team, especially Chief of Staff John Podesta, Deputy
Chief of Staff Sylvia Matthews, OMB Director Jack Lew; Larry Stein and
Chris Jennings.
  I also want to thank my own staff, and the staff of Appropriations
Committee, who have worked many weekends, many late nights, to turn our
ideas and debate into a workable budget document.
  Finally, I want to acknowledge our dear friend, the late Senator John
Chafee. Losing Senator Chafee so suddenly was one of the saddest
moments in this difficult year. He embodied what is best about the
Senate. He was a reasonable, honorable man who cared deeply about
people. Completing the budget process was a major challenge. But in the
end, I believe we have produced a budget John Chafee would have
approved of.
  This budget invests in our children's education - the best investment
any nation can make. It maintains our commitment to reduce class size
by hiring 100,000 teachers. It contains money to help communities
repair old schools and build new ones. It will enable more children to
get a Head Start in school, and in life. And it will allow more young
people to attend after-school programs where they will be safe, and
where they will have responsible adult supervision.
  This budget protects Medicare beneficiaries by providing fair
payments to the hospitals, clinics, home health care providers and
nursing homes they rely on.
  This budget will make our communities safer by putting 50,000 more
police officers on the street--in addition to the 100,000 who have
already been hired--and by investing in youth crime prevention.
  This budget will help keep Americans healthy . . . by reducing hunger
and malnutrition among pregnant women, infants and young children . . .
and by increasing funding for the National Institute of Health and the
national Centers for Disease Control.
  This budget protects our environment. We took out riders that would
have harmed our environment, and put in money to fund the President's
Lands Legacy program.
  This budget will help working families find affordable housing.
  It will help farm and ranch families weather these hard times.
  This budget protects our national security . . . by increasing
military pay and readiness . . . and by reducing the nuclear threat at
home and around the world.
  This budget will help us fulfill our responsibilities as the world's
only superpower. It provides money to pay our UN arrears and fund the
Wye Accord to promote peace to the Middle East. It will also enable us
to ease the crushing burden of debt on some of the world's poorest
countries, so those nations can begin to invest in their own futures.
  At the beginning of the year, our Republican colleagues proposed an
$800 billion tax cut. For months, we all heard a lot of debate about
what such a huge tax cut would mean. This budget makes it clear. There
is no way we could have paid for an $800 billion tax cut without
exploding the deficit again, or raiding Medicare, education, and other
programs working families depend on.
  Instead of moving backwards on taxes, we're moving forward. We're
cutting taxes the right way. We're widening the circle of opportunity .
. . by extending the R&D tax credit, and other tax credits that
stimulate the economy . . . and by empowering people with disabilities
by allowing them to maintain their Medicare and Medicaid coverage when
they return to work.
  There is one other point I want to make about the budget: For every
dollar Democrats succeeded in restoring these last few weeks . . . for
teachers, and police officers and other critical priorities . . . we
have provided a dollar in offsets. Dollar for dollar, every one of our
priorities is paid for. If CBO determines that this budget exceeds the
caps, the overspending is in the basic budget our Republican colleagues
drafted--on their own.

                         the unfinished agenda

  As I said, Mr. President, this budget does move the country in the
right direction--but only incrementally. My great regret and
frustration with this Congress, is that we have achieved so little
beyond this budget.
  Look what we are leaving undone! In a year in which gun violence
horrified America . . . a year in which gun violence invaded our
schools and even a day care center . . . the far right has prevented
this Congress from passing even the most modest gun safety measures--
measures that would make it harder for children and criminals to get
guns.
  The far right has prevented this Congress--so far--from passing a
Patients' Bill of Rights. More than 90 percent of Americans--Democrats
and Republicans--support a real Patients' Bill of Rights that holds
HMOs accountable. So does the AMA, the American Nurses Association--and
200 other health care and consumer organizations. And so does a
bipartisan majority in both the House and Senate. Yet the Republican
leaders in this Congress continue to use parliamentary tricks to deny
patients their rights. As we leave here for the year, HMO reform, like
gun safety, has been stuck for months in the black hole of conference
committees.
  The Republican leadership clearly is hoping that we will forget about
all the shootings . . . forget about the families who have been injured
because some HMO accountant overruled their doctor and denied needed
medical treatment. I am here to tell them: The American people will not
forget. And neither will Senate Democrats.
  We will fight to close the gun show loophole. And we will fight to
pass a real Patients' Bill of Rights next year. We will continue the
fight for meaningful campaign finance reform. We will continue the
fight to preserve and strengthen Medicare--including adding a
prescription drug benefit. We will resume the fight for a decent
minimum wage increase. We will fight for a fair resolution of the
dairy-pricing issue. And, we will restore the rural loan guarantee
program for satellite TV service, so rural Americans aren't left with
second-class service.
  It's taken a long time, but we finally have a budget that keeps
America moving in the right direction. That is a relief, and a victory
for the American people. But we still have a long way to go. We are
leaving here with too many urgent needs unmet. We must do better next
year.
  Mr. LOTT. Mr. President, today the Superfund Recycling Equity Act, S.
1528, is being sent to the President as part of H.R. 3194. This is a
great day for environmental law--this is the day that the public policy
restores recycling as a rewarded, rather than punished activity.
  This is a great day because partisan feuding was set aside so that
the Congress could find a realistic, incremental, and common sense
environmental fix. The freestanding Superfund Recycling Equity Act has
strong bipartisan support with 68 cosponsors--68 Senators who have
worked together to advance a fix to a small piece of the Superfund
debate.
  In this controversial world of environmental legislation it is rare
that the leaders of the two parties in either Congressional body would
agree on a piece of legislation. Well, here in the Senate we do. I wish
to thank Minority Leader Daschle who understood the merits of recycling
and twice joined with me to sponsor this legislation. Without his
leadership, this legislation would not have been possible.
  Mr. President, I would also like to commend the Senators who
originally joined Senator Daschle and me in introducing this
legislation. Senators Warner and Lincoln, who sponsored this measure in
a previous Congress, have long exhibited their enthusiasm for fixing
recycling rules. They are true leaders--leaders who have fostered this
reasonable, workable, environmental proposal. Senator Baucus, the
Ranking Minority Member of the Environment and Public Works Committee,
has also been an avid supporter of recycling by including a version of
the Superfund Recycling Equity Act in his comprehensive Superfund
reform bill in the 103rd Congress. His six years of leadership in
trying to fix public policy for recyclers is appreciated.

[[Page S15052]]

  Mr. President, this bill would not be where it is at today, on the
cusp of becoming law, had it not been for the active support of the
late Senator John Chafee--a dear friend to me and many of our
colleagues. John Chafee was a respected leader of the Environment and
Public Works Committee. His advice and counsel helped shape my bill and
he was an original cosponsor. I am proud to have been associated with
him on this bill and its legislative process. I consider it a tribute
that this bipartisan bill, negotiated with the Administration,
representatives of the national environmental community, and the
recycling industry, was supported by John Chafee, a man for whom
consensus was so important. I believe this is not a footnote to John
Chafee's legacy; rather I believe that he made this kind of cooperation
possible.
  The former mayor of Warwick, Rhode Island, is now the newly appointed
Senator from Rhode Island. I have already had an opportunity to hear
our newest senator--Senator Lincoln Chafee--tell me about what Warwick
has done with regards to recycling. It is a proud record--a record that
would be extended and enhanced by this bill. I find it a credit to John
Chafee's legacy that his son would be working with me on this
legislation. Less than a month in the Senate and already Lincoln's
voice is being heard in ways that will directly help Rhode Island.
  Mr. President, I also must recognize the vision of trade associations
like American Petroleum Institute and National Federation of
Independent Businesses for supporting an incremental solution. It would
have been easier for these groups to oppose the bill because it did not
address all the fixes for which they have been advocating. However, AFI
and NFIB recognized that this increment would not jeopardize their
efforts; rather it exemplifies the efforts of various stakeholders to
accomplish something positive for the environment albeit it
incremental.
  And finally, I must thank the various staff members who have
diligently worked toward the passage of this legislation: Eric Washburn
and Peter Hanson of Senator Daschle's staff, Tom Gibson and Barbara
Rogers of the Environment and Public Works committee staff, Charles
Barnett of Senator Lincoln's staff, Ann Loomis of Senator Warner's
staff, and my former staffer, Kristy Simms, who set the stage for this
years success.
  While too often Senators have seen various interest groups tell
Congress why we cannot achieve some worthy environmental goal, the
history of the Superfund Recycling Equity Act is replete with evidence
of people coming together to correct a problem. Everyone, including
myself, realizes that comprehensive reform is necessary to fix the vast
array of problems in many different sectors of the environmental
community. Unfortunately, we do not live in a perfect world, so
Congress must do what is achievable whenever it is possible. This is
good public policy --increments will show all parties there is a bridge
for bipartisan environmental fixes. Recycling is the first of many
necessary fixes, and I would bet my colleagues that it will not be the
last fix.
  This is a great day for many environmental groups who saw a change
that they supported, not be taken hostage by the debate that has for so
many years paralyzed reforms to Superfund. The original negotiation
that resulted in the basis of the bill was tough and long--but it was
fair. Each of the negotiating partners left items on the table that
they would have wanted in an otherwise perfect world. Their collective
approach was always bipartisan--they never pitted one party against
another by pledging one group of interests against another. They
remained loyal to their agreement for an unheard of five years--an
eternity in Washington. Though this legislation was a long time in
coming, I am grateful for its passage.

  Mr. President, this is a great day for my good friend and fellow
Mississippian, Phillip Morris. It is also a great day for the thousands
of mom-and-pop recycling firms across America, like the one owned by
Phillip Morris. This legislation protects the legacy of these firms
which in most cases have been handed down through generations--often
started by new immigrants to America nearly a hundred years ago. This
ends the long Superfund nightmare that our nation's recyclers have
suffered. Each time they sold their recyclable products they were,
unintentionally, exposing themselves to costly Superfund liability.
Removing Superfund as an impediment to recycling is a predicate to
higher recycling rates throughout the nation.
  The Superfund Equity Act is not about special interests getting a
fix. No, this bill is about representing constituent interests
throughout America and promoting the public interest. That is why
Senator Daschle and I have 68 cosponsors--cosponsors that range
completely across the liberal and conservative political spectrum, and
range across all regions of America.
  Mr. President, let me be clear, the Superfund Recycling Equity Act
corrects a mistake nobody intended to make. When the Comprehensive
Emergency Response, Compensation and Liability Act (CERCLA) was enacted
in 1980, there was no suggestion that traditional recyclables--paper,
plastic, glass, metal, textiles, and rubber were ever intended to be
subject to Superfund liability. As a result of court interpretations,
however, the sale of recyclables as manufacturing feedstock was
considered to be arranging for the disposal of the material and,
therefore, subject to Superfund's liability scheme. However, as we have
all come to know as a matter of public policy, recycling is not
disposal; it is the exact opposite of disposal.
  Mr. President, let me say that again--recycling is not disposal, and
a law is needed to remove this confusion. Sad, but true.
  Enactment of this legislation clarifies this point and corrects the
misinterpretations that have cost recyclers--primarily small family-
owned businesses--millions and millions of dollars for problems they
did not cause. With passage of the Superfund Recycling Equity Act, the
costs of cleanup at sites that utilize recyclable materials as
feedstock will be borne, rightfully, by those persons who actually
cause or contribute to the pollution. As a result, those facilities
will be less likely to cause contamination because they will no longer
have recyclers to help them pay for Superfund cleanup. That's a
powerful market incentive and will cause the consuming facility to
become more environmentally conscientious.
  Let me be clear, this legislation will not alter the basic tenants of
environmental law--polluters will still pay. This legislation does not
relieve recyclers of Superfund liability where they have polluted their
own facilities. It also does not protect these businesses when they
have sent materials destined for disposal to landfills or other
facilities where those materials contributed, in whole or in part, to
the pollution of those facilities. Furthermore, the public can expect
recyclers to continue to be environmentally vigilant because they must
operate their businesses in an environmentally sound manner, in order
to be relieved of Superfund liability.
  Today is a victory for coalition building that avoids the attack
strategies that are so often employed by trade associations in DC. I
hope they see the wisdom in building coalitions around achievable
increments. This is how Congress can move forward. This is how Congress
shows that it not only hears from its constituents but it acts
successfully. Hostage taking, distortion, and scorch the earth
approaches are not productive legislative strategies or lobbying
tactics. Trade associations need to seek achievable solutions, develop
responsible legislative goals, and avoid Beltway attack politics. I am
extremely pleased that Congress has been able to take this tiny but
very important step forward in reforming the Superfund law. I hope this
accomplishment will inspire others to work for sensible, incremental
solutions that help both our environment and our nation's economy.
  I am proud that today Congress leveled the playing field and created
equity in the statutory treatment of recycled material and virgin
materials. I am proud to have removed the disincentives to recycling
without loosening any existing liability laws for polluters. I am proud
to have represented the mom and pop recyclers across America. I'm
especially proud of the fact that this was all done in a bipartisan
manner.

[[Page S15053]]

  Mr. MOYNIHAN. Mr. President, 2 years ago, as part of the effort to
balance the Federal budget, Congress enacted the Balanced Budget Act of
1997--which we have come to know as the ``BBA.'' Among other
provisions, the BBA enacted major changes in the way Medicare pays for
medical services. As implementation of these changes proceeds, concerns
have been raised that some of them are having unintended consequences
that threaten the viability of health care providers--and consequently
the overall availability of health care to our constituents.
  In order to alleviate some of these unintended consequences of the
BBA, the appropriations conference report before the Senate today
incorporates by reference H.R. 3426, the ``Medicare, Medicaid and SCHIP
Balanced Budget Refinement Act of 1999.'' This legislation will restore
some $17 billion over 10 years to hospitals, skilled nursing
facilities, home health agencies, and other Medicare and Medicaid
providers. The bill will also facilitate administrative actions that
will provide an additional $10 billion of relief to hospital outpatient
departments.
  H.R. 3426 has many important provisions; here are some of the
highlights:
  Teaching hospitals will receive $600 million in additional Indirect
Medical Education (IME) payments over fiscal years 2000 and 2001. They
will also benefit from other provisions that add money back to hospital
outpatient departments, and which scale back cuts in Medicare
disproportionate share payments to hospitals serving low-income
patients. I will have more to say about teaching hospitals in a moment.
  Rural hospitals will be assisted by: an exemption from the new
payment system for hospital outpatient departments; improvements in the
Critical Access Hospital (CAH) program; a 5-year extension of the
Medicare Dependent Hospital program; and an update in payments for Sole
Community Hospitals (SCHs).
  Skilled Nursing Facilities--usually referred to as SNFs--would
receive $2.1 billion of assistance over 10 years by: increasing
payments for certain medically complex patients; permitting SNFs to
switch immediately to a more favorable payment system; and excluding
certain high cost items from consolidated billing.
  The caps on payments for rehabilitation therapy would be suspended
for two years pending development of a better payment system; and
hospice facilities, which are covered under Medicare part A, would
receive temporary payment increases in fiscal years 2001 and 2002.
  Other provisions of the bill would: stabilize the formula used to
calculate payment for physician services; lift time limits for state
use of a fund for delinking of welfare and Medicaid eligibility; slow
the phase-down of a Medicaid cost reimbursement to community health
centers and rural health clinics; and provide adjustments to the State
Children's Health Insurance Program--known as CHIP--which was enacted
by the BBA of 1997

                       graduate medical education

  I would like to focus the remainder of my remarks on one particular
aspect of this legislation--funding for graduate medical education. My
State of New York is the home to 117 teaching hospitals--almost 10
percent of our Nation's academic medical centers.
  The cumulative effect of several provisions in the Balanced Budget
Act of 1997 has produced an unintended financial burden on teaching
hospitals. First, the BBA enacted a multi-year reduction in payments
for the indirect costs associated with medical education, known as IME
payments. Second, many teaching hospitals serve a large share of low-
income inpatients and have therefore been burdened by the BBA's cuts in
disproportionate share hospital (DSH) payments. Finally, many teaching
hospitals are also subject to the BBA's reductions in hospital
outpatient department reimbursements.
  I am pleased that the legislation we are voting on today, mitigates
the fiscal pressures on teaching hospitals by adding back Indirect
Medical Education (IME) funds in fiscal years 2000 and 2001. Teaching
hospitals in New York will receive more than $150 million in additional
IME payments over these 2 fiscal years.
  In addition, the bill's relief to disproportionate share hospitals--
those serving low-income patients--will assist the many teaching
hospitals serving those populations. Finally, teaching hospitals across
the Nation will benefit from the nearly $10 billion over 10 years in
additional payments to hospital outpatient departments.
  I am concerned, however, about a change made in this bill to Direct
Graduate Medical Education (DGME) payments. Medicare DGME payments
compensate teaching hospitals for the costs directly related to the
graduate training of physicians. Such DGME costs include residents'
salaries and fringe benefits, the salaries and benefits of the faculty
who supervise the residents, as well as other direct and overhead
costs.
  The current payment methodology for DGME was developed in the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Under
COBRA, a hospital-specific per-resident amount was determined based on
each individual hospital's 1984 Medicare allowable costs. This per-
resident amount took into account the extent to which teaching
hospitals already had alternative sponsorship--such as from a
university, medical school, or faculty practice plan--and locked
payments at that level, so as not to replace outside funding sources.
In determining current DGME payments, 1984 costs are updated for
inflation and subjected to a formula based on each hospital's number of
current residents (which is capped under BBA), and each hospital's
proportion of inpatient Medicare beds.
  Consequently, there is wide variation in DGME payments from hospital
to hospital. On average, New York has a higher average per-resident
amount ($85,000/per resident) than the rest of the country ($67,000/per
resident). However, DGME payments are hospital specific, not region
specific; even within New York great variation exists. In New York DGME
payments range from $156,000 per-resident to $38,000 per-resident.
There are a number of factors which account for the variation in the
hospital specific payments: the level of outside support from non-
hospital sources; the relationship to the medical school; and state or
local government appropriations. In addition, residents' salaries,
which are determined by geographic cost of living factors, further
explains the variation.
  The version of this legislation that passed the House of
Representatives included DGME language that would change the hospital
specific per-resident formula to a payment based on a wage-adjusted
national average. I am pleased to say that during negotiations on these
provisions, I and the distinguished ranking Democrat on the Ways &
Means Committee, Representative Rangel, with Chairman Roth's support
were able to significantly narrow the scope of the House provision,
thereby protecting many teaching hospitals in New York and elsewhere
from abrupt changes in DGME payments. The scaling back of the House
provision will provide time to address the complicated DGME system in a
comprehensive and fair manner.
  The negotiations necessary to reach agreement on both the IME and
DGME adjustments in this legislation clearly demonstrate the need for
fundamental change in the way that medical education is financed in
this country. What is needed is not year-to-year adjustments in
Medicare funding but an explicit and dedicated source of funding for
these institutions--a Medical Education Trust Fund as I have proposed
this year and in the past.
  The legislation that I introduced would require that the public
sector, through the Medicare and Medicaid programs, and the private
sector, through an assessment on health insurance premiums, contribute
broad-based and fair financial support. Changing the funding source for
graduate medical education from primarily Medicare funds to multiple
payers would protect graduate medical education for the long term.
Teaching hospitals are national treasures; they are the very best in
the world. Yet today they find themselves in a precarious financial
situation as market forces reshape the health care delivery system in
the United States. The all-payer trust fund I have proposed would
ensure that America continues to lead the world in the quality of its
health care system.

[[Page S15054]]

  Mr. THURMOND. Mr. President, I rise in support of the Conference
Report to H.R. 1554, the Satellite Home Viewer Improvement Act. This is
pro-consumer legislation which will promote much needed competition
among television providers.
  This legislation allows satellite carriers to carry local television
stations for the first time. Consumers now will have a choice between
cable companies and satellite companies that offer similar programming.
This competition should help lower costs and increase quality service
for all consumers.
  In addition, this legislation contains many other pro-consumer
provisions. For example, it protects consumers who are about to lose
their distant signals and establishes a new consumer-friendly process
to determine distant signal eligibility.
  This legislation also protects local broadcasters who provide a
valuable service to our communities. Most importantly, local
broadcasters should benefit from the legislation's must carry
requirements. The members of the conference also agreed on a provision
which would encourage satellite carriers and other entities to provide
local into local network service in small and rural markets. However,
this provision was taken out at the last minute. I strongly support
fiscally sound ways of encouraging satellite carriers and other
entities to provide local network television in small and rural
markets.
  This legislation is a good step in promoting competition among
satellite and cable providers. I urge support of this legislation, and
I look forward to working early next year with other Senators regarding
local into local network service for small and rural markets.
  Mr. LIEBERMAN. Mr. President, I rise today with renewed hope for the
safety of our public roads. In 1998, 5,374 people were killed in truck-
related crashes. In my State there is a strong public sense of alarm
about this safety problem. And as trucks get bigger and heavier and the
volume of trucks on our roads increases, the General Accounting Office
(GAO) predicts that by the year 2000, over 6,000 people will be killed
every year as a result of truck-related crashes. This prediction comes
at a time when the Office of Motor Carriers (OMC)--the federal agency
charged with overseeing truck safety--has failed in its duties to
protect the American public. The Department of Transportation Inspector
General, the National Transportation Safety Board, the GAO and members
of this Congress have all brought to light and documented the many
inadequacies of this broken agency.
  I commend the leaders of the Senate Commerce Committee for pursuing
this very important issue. H.R. 3419, The Motor Carrier Safety
Improvement Act of 1999, addresses the numerous failings of the Office
of Motor Carriers by strengthening federal motor carrier safety
programs, and by creating a new Federal Motor Carrier Safety
Administration. Although H.R. 3419 takes a large step in the right
direction, federal truck safety oversight needs a new look, with a
focus dedicated to reducing truck-related fatalities and injuries, and
not simply a new agency with new letterhead.
  The Inspector General in his April 1999 report showed that the OMC
has not maintained an ``arm's length'' relationship between itself and
the industry it regulates. In fact, the report suggests OMC has
developed too close a relationship with the industry it must regulate.
This has limited OMC in taking the tough regulatory and enforcement
actions that the accident data suggests are needed to protect public
safety. One example of this problem is that the OMC has consistently
awarded research contracts to the regulated industry to perform some of
the most critical, and highly sensitive research on future rulemakings
governing the industry. This practice appears questionable. In order to
protect the American public, an independent relationship should be
established by the new Federal Motor Carrier Administration.
  H.R. 3419 provides us with an opportunity for real progress in
improving truck safety, but only if the new Federal Motor Carrier
Safety Administration and its leaders commit to a new culture which
truly holds safety as the highest priority. This Congress and the
Department of Transportation must restore the American public's trust
in federal motor carrier safety programs, and take action that produces
safer results.
  Mr. STEVENS. Mr. President, I have some comments on issues raised by
the conference report to the Interior appropriations bill.
  On the matter of contract support costs for Bureau of Indian Affairs
and Indian Health Service programs operated by Native organizations
under the provisions of P.L. 93-638, I am pleased that we have been
able to add $10 million to BIA funding and $25 million to IHS funding
over fiscal year 1999 levels to support additional payments of contract
support costs for these programs. This new funding will allow BIA and
IHS to bring existing programs' contract support cost payments closer
to the full amount of negotiated support and will allow a limited
number of new and expanded programs in both agencies to go forward.
  However, I am concerned that the Tribes have been operating, in the
distribution of contract support costs, under the assumption that
contract support costs are an entitlement under the law. The House and
Senate Committees on Appropriations have taken exception to that
interpretation and have tried to persuade the IHS to change its
allocation methodology and to set reasonable limits on the number and
size of new and expanded contracts it executes consonant with resources
made available by Congress for the payment of contract support costs.
The Federal Circuits Court of Appeals in its October 27, 1999 decision
in Babbitt v. Oglala Sioux Tribal Public Safety Department (1999 WL
974155 (Fed. Cir.)) has now affirmed that contract support costs are
not an entitlement, but rather are subject to appropriations. Contract
support cases raising similar legal issues are pending in the 10th
Circuit Court of Appeals and in various Federal district courts around
the country. The Federal circuit's decision was correct both in its
holding and in its reasoning and should serve as precedent for other
pending cases. To assume that Congress would create a system in which
Tribes receive the majority of their contract support costs through
funds appropriated to the Indian Health Service or Bureau of Indian
Affairs and which requires Tribes to seek the balance in court through
the claims and judgment fund turns logic on its ear. ``Subject to
appropriations'' means what it says.
  The Indian Health Service has made improvements to its distribution
methodology in fiscal year 1999 but continues to distribute funds at
varying rates for different contracts, compacts and annual funding
agreements. More disturbing, the current IHS system pays contractors
with high overhead costs (relative to program costs) at the same
percentage rate as it pays contractors with low overhead rates,
rewarding inefficient operators and creating an incentive to maximize
overhead costs.
  The bill allows the funding in fiscal year 2000 of a limited number
of new and expanded contracts through the Indian Self Determination
(ISD) fund of $10 million. It is expected that, once the contract
support cost total (paid at an average rate not to fall above or below
the average rate of payment of contract support costs to existing
contractors in fiscal year 2000) for new and expanded programs has
reached $10 million, IHS will not execute any further new or expanded
contracts until Congress has provided funds specifically earmarked for
that purpose. Existing IHS policy does not permit reduction of existing
service providers' funding in order to fund new entrants into the
system. This bill does not modify that policy. If funds remain in the
ISD fund after all new entrants have been accommodated, those funds
should be distributed equitably across existing programs, with
particular emphasis on the most underfunded.
  The Indian Health Service should include as part of its fiscal year
2001 budget request a detailed cost estimate for new and expanded
contracts so that Congress will be aware of anticipated need when it
establishes a funding level for an ISD account in fiscal year 2001.
Congress and the courts have made it plain that IHS can no longer enter
into new and expanded contracts without regard to the level of funding
provided for that purpose by Congress. Congress will be aided in its
efforts to establish

[[Page S15055]]

a reasonable level of support for new and expanded contracts if the IHS
provides accurate estimates of anticipated need as part of the budget
process.

  The authorizing committees in the Senate and House are encouraged, in
consultation with the Indian Health Service, the Bureau of Indian
Affairs and Tribal organizations, to develop timely proposals to
address the longer term issues surrounding contract support costs,
including the apparent contradiction between the self-determination
principles laid out in P.L. 93-638 and the legal requirement that
contract support costs are subject to appropriations.
  Our committees encourage the transition of employees from Federal to
Tribal employment as part of self-determination contracts and self-
governance compacts and strongly believe that the IHS should not
provide disincentives for such transfers. We have noted that each year
start-up costs from new and expanded contracts for the previous year
are returned to the base for distribution to other contracts. These
funds, currently estimated at $4.5 million, will be available in fiscal
year 2000. With my support, the House and Senate Committees on
Appropriations will soon be sending a letter to the IHS requesting that
it set aside a portion of base contract support funds associated with
prior year start up costs for use as a transition fund for costs
associated with employees who elect to transfer from Federal employment
to Tribal employment during the period after which contract support
costs for individual contracts have been determined for that year. To
the extent set aside funds are not needed for employee transition, they
should be distributed equitably among existing contractors, with
emphasis on the most underfunded contracts.
  In the last fiscal year and the one we are funding now, we will have
added a total of $60 million in new contract support cost funding to
the IHS budget. We know that these funds are critical to the success of
Indian-operated health programs and that shortfalls still remain.
However, in the current environment of caps on discretionary spending,
we must develop policies that support the self-determination principles
embodied in P.L. 93-638 while taking into account the fiscal realities
of limits on funding for these programs. I look forward to receiving
recommendations from the authorizing committees, the IHS and BIA, and
tribal organizations which will address these issues in time for the
committees' consideration during the fiscal year 2001 appropriations
cycle.
  Mr. President, the conference report also includes a provision to
authorize the investment of Exxon Valdez oil spill--or EVOS--settlement
funds outside of the Treasury. This section is the exact language of
legislation, S. 711, reported by the Senate Energy and Natural
Resources Committee earlier this year, and represents an accord struck
among many interests. The details of this accord are discussed more
fully in the committee report (Senate Rpt. 106-124) accompanying S.
711. These interests include Koniag, a native regional corporation with
a great interest in seeing that their native lands are valued at the
level they feel appropriate given their prominence in the oil spill
zone.
  The continuing availability of EVOS funds for habitat conservation
raises another important issue I hope can be resolved in the coming
months. It regards revenue sharing payments arising from oil spill area
acquisitions. New additions to refuge lands, such as those from EVOS
settlement land acquisitions, qualify adjacent communities to increased
Federal payments in lieu of taxes under the Revenue Sharing Act of
1935.
  In 1995, the U.S. Fish and Wildlife Service agreed to purchase from
Old Harbor, Akiok-Kaguyak and Koniag Native corporations over 160,000
acres of land within the Kodiak National Wildlife Refuge. These lands
were acquired using funds derived from the consent decree in settling
the United States' and State of Alaska's civil claims against Exxon,
Inc. for damages caused by the Exxon Valdez oil spill in 1989.
  The Exxon Valdez Trustee Council, which was formed to implement the
consent decree, adopted its restoration plan in 1994 with habitat
protection as a key component of the plan to recover the damages caused
by the oil spill. The trustee council subsequently solicited interest
from land owners throughout the spill zone and ranked the habitat based
on its restoration value for the species and services injured by the
spill. The council, working through State and Federal land managing
agencies, commissioned land appraisals and authorized negotiations with
land owners.
  Negotiated agreements with land owners, resulting in significant
habitat acquisitions, exceeded the appraisals approved by Federal and
State appraisers. The trustee council in its resolutions authorizing
these acquisitions with settlement funds made several findings, I'm
advised that these findings included the following:

       Biologists, scientists and other resource specialists agree
     that, in their best professional judgment, protection of
     habitat in the spill area to levels above and beyond that
     provided by existing laws and regulations will likely have a
     beneficial effect on recovery of injured resources and lost
     or diminished services provided by these resources.
       There has been widespread public support for the
     acquisition of these lands, locally, within the spill zone
     and nationally.
       It is ordinarily the Federal Government's practice to pay
     fair market value for the lands it acquires. However, due to
     the unique circumstances of this proposed acquisition,
     including the land's exceptional habitat for purposes of
     promoting recovery of natural resources injured by EVOS and
     the need to acquire it promptly to prevent degradation of the
     habitat, the trustee council believes it is appropriate in
     this case to pay more than fair market value for these
     particular parcels.
       This offer is a reasonable price given the significant
     natural resource and service values protected; the scope and
     pervasiveness of the EVOS environmental disaster and the need
     for protection of ecosystems . . .

  The trustee council-commissioned appraisals--which were performed in
accordance with Federal regulations--for the three large parcels
acquired within Kodiak National Wildlife Refuge are estimates of fair
market value. However, they varied substantially from the landowners'
appraisals and what they believe to be their fair market value. The
land owners rejected the initial offers made by the U.S. Fish and
Wildlife Service to purchase the lands based on the trustee council's
commissioned appraisals.
  The estimates of fair market value based on the Federal appraisals
are below the prices actually paid for the various parcels of land, and
they do not consider the purchase price paid in these and other
governmental acquisitions in Alaska. The trustee council, through its
public process, difficult negotiations and subsequent findings
determined that the price paid for the lands was ``a reasonable price''
for a variety of reasons including past Federal large-scale
acquisitions.
  The acquisition in fee of these three large parcels within Kodiak NWR
now requires the U.S. Fish and Wildlife Service to make payments in
lieu of taxes to the Kodiak Island borough in accordance with the
Revenue Sharing Act of 1935. The act directs the agency to make such
payments based on the fair market value of acquired lands.
  The service is currently using the federally approved appraisals
estimating fair market value of these three large parcels as the basis
for computing the revenue sharing payment to the borough. The borough
has rightly challenged the Service's determination of fair market value
based on the unique circumstances of these acquisitions and the
findings made by the trustee council in approving funds for these
acquisitions.

  A plain reading of the Revenue Sharing Act (which authorizes the
Secretary of the Interior to make refuge revenue sharing payments)
requires that the determinations of fair market value be made in a
manner that ``The Secretary considers to be equitable and in the public
interest.'' Clearly, the public interest associated with these unique
acquisitions has been well documented in the findings of the trustee
council.
  The Revenue Sharing Act imposes no legal impediment for the Secretary
to make a determination of fair market value that incorporates the
unique circumstances of these acquisitions and the specific findings
and actions taken by the trustee council. Thus, I urge the Secretary to
review the Kodiak Island Borough's appeal to the Service's
determinations for making revenue sharing payments and do what is fair
and equitable as called for by the act.

[[Page S15056]]

  These are unique circumstances that exist nowhere else in the United
States and are limited to Alaska to lands acquired in the Exxon Valdez
spill zone with settlement funds. Thus, there should be no consequences
for how revenue sharing payments are computed for service acquired
lands in other parts of Alaska or throughout the rest of the country.
  At this opportunity, upon the passage of another year's funding for
the Federal and Indian land management agencies, I must call to the
attention of my colleagues and to the attention of the President of the
United States, an issue that troubles me deeply. Over the years, our
Government has made commitments to Native Americans which it has not
kept. Many Americans thought that practice ended with the new, more
enlightened self-determination approach to Indian policy. But as one of
Alaska's Representatives in the Senate, members of the President's
staff made personal promises to me just last fall on behalf of the
Native people of the Chugach region which have not been kept.
  In 1971 Congress passed the Alaska Native Claims Settlement Act
(ANCSA). The act cleared the way for Alaska Native people, including
the Chugach Natives, to receive title to a small portion of their
traditional lands as settlement of their aboriginal land claims. The
act also cleared the way for the addition of millions of acres to our
national parks, wildlife refuges forests, and wilderness areas.
Allowing Native people to develop their lands freed them from economic
bondage to the Federal Government. No longer would they have to depend
exclusively on the benevolence of the Federal Government for hand-outs.
They could create their own jobs, generate their own income, and
determine their own destiny. But only if they had access to their
lands.
  Both the administration and the Congress recognized the lands would
be virtually valueless if there was no way to get to them. The Claims
Act recognized that Native lands were to be used for both traditional
and economic development purposes. Alaska Natives were guaranteed a
right of access, under law, to their lands across the vast new parks,
refuges, and forests that would be created.
  In 1971 and again in 1982, under the terms of the Chugach Native Inc.
settlement agreement, the Federal Government made a solemn vow to
ensure the Chugach people had access to their aboriginal lands. Now a
quarter of a century later, that commitment has not been fulfilled.
Many of the Native leaders who worked with me to achieve the landmark
Native Land Claims Settlement Act have died after waiting for decades
without seeing that promise honored.
  Last year, Congressman Don Young, Chairman of the House Resources
Committee, added a provision to the House Interior Appropriations bill
that required, by a date certain, the Federal Government to live up to
the access promises it made to the Chugach Natives decades ago. In the
conference last fall on the Omnibus appropriations bill,
the administration spoke passionately and repeatedly against the
provision.

  Why? They fully admitted the obligation to grant an access easement
exists. They acknowledged further that access delayed is access denied
and that further delays were harmful to the Chugach people. They
opposed the provision on the grounds that it was not necessary since
they were going to move with all due haste to finalize the easement
before the end of 1998. Katie McGinty, then head of the President's
Council on Environmental Quality sat across from me, looked me in the
eye, and promised me they would fulfill this long overdue promise
before the end of the year.
  She even offered to issue a ``Presidential Proclamation'' promising
once again to do what had already been promised and promised and
promised. My staff worked with OMB on the content of such a
proclamation, but I told them it would not be necessary. I would take
her at her word and believed the administration would live up to the
personal commitment she made to me.
  Here we are a year later, Chugach still has not received its
easement. Ms. McGinty is gone, but her commitment on behalf of this
administration remains. It is now the responsibility of others to
ensure the promises she made to me and to Alaska's Native people are
kept.
  Congressman Young's House Resources Committee has reported a bill,
H.R. 2547, to address this issue legislatively, in the hope of forcing
the administration to do what it has promised to do. Senator Murkowski
has been tireless in his efforts to get the Federal Government to live
up to the promises made to Alaskans concerning access to our State and
Native lands. I support those efforts.
  But I take the time today to say clearly to this administration that
the promises made by our Government to the Chugach people for access to
their lands--and to me personally as their Representative--must be
honored. Make no mistake, if the promises made to me by officials in
this administration last fall are not lived up to soon, if they oppose
the efforts of Congressman Young and Senator Murkowski on this issue,
if they continue to obfuscate and ``slow roll'' this commitment, it
will be clear to all that this administration does not perceive the
true meaning of Robert Service's memorable phrase: ``A promise made is
a debt unpaid''!
  Mrs. FEINSTEIN. Mr. President, today I am pleased the Senate is
considering the Balanced Budget Refinement Act of 1999, to restore some
of the unanticipated cuts in Medicare and Medicaid made in 1997 and I
commend the Senate leadership, the Finance Committee, Senators Roth and
Moynihan, and the Administration for their hard work in developing this
bill. The bill includes several important provisions.
  The Balanced Budget Act of 1997 has been one of several factors
threatening the overall stability of the health care system in
California, which many believe to be on the verge of collapse. Today I
will focus on eight provisions of the bill which are particularly
important to California.

                california's health care system eroding

  During the past few months, I have met with many California health
care leaders who have convinced me that the Medicare and Medicaid cuts
contained in the Balanced Budget Act of 1997 have undermined the
financial stability of California's health care system. In the past 6
months, I have urged President Clinton, Secretary Shalala, and Senators
Roth and Moynihan to join me in addressing the impact the Balanced
Budget Act of 1997 is having on our nation's health care system.
  California's health care system, in the words of a November 15th Wall
Street Journal article, is a ``chaotic and discombobulated
environment.'' It is stretched to the limit:
  Thirty-seven California hospitals have closed since 1996, and up to
15 percent more may close by 2005.
  By 2002, the Balanced Budget Act of 1997 will result in cuts of $5.2
billion for California hospitals. For California's two largest Catholic
health systems, Catholic Healthcare West and St. Joseph's Health
System, the loss amounts to over $842 million.
  Over half of my state's hospitals lose money on hospital operations
annually.
  Hospitals have laid off staff.
  California physician groups are failing at the rate of one a week,
with 115 bankruptcies or closures since 1996.
  Academic medical centers, which incur added costs unique to their
mission, are facing margins reduced to zero and below.
  The University of California's five medical centers will lose $225
million.
  California hospitals are contending with the impact of BBA while
facing a projected margin of negative 7.58 percent by 2002, compared to
the national rate of negative 4 percent.
  For rural California hospitals, because 40 percent of patients
receive Medicare and 20 percent receive Medicaid, 69 percent lost money
in 1998, according to the California Health Care Association.
  In short, restoring Medicare cuts is crucial to stabilizing
California's health delivery system.

                               Hospitals

  This bill contains several provisions that will help stabilize
California's hospitals by restoring $400 million, according to
preliminary estimates of the California Health Care Association. This
bill clarifies that Congress' intent was not to impose a 5.7 percent
cut in outpatient services, which restores $137

[[Page S15057]]

million to California, according to preliminary estimates by the
California Health Care Association. Cancer hospitals are held harmless
permanently. Since Medicare is a major payer for hospital care,
improving payment rates and methods is a significant way to stop
further closures and stabilize the system.

                          safety net hospitals

  I want to thank the Finance Committee and the Administration for
including a provision maintaining adequate Medicaid payments to
disproportionate share hospitals. California has a disproportionate
burden of uncompensated care. We have one of the highest uninsured
rates in the country at 24 percent, while the national rate is 17
percent. California has the fourth highest uninsured rate in the
country, a rate that has risen over the last 5 years and now totals
over seven million people. As a result of Medicaid reductions in the
Balanced Budget Act of 1997, California's Medicaid disproportionate
share hospital program could lose more than $200 million by 2002,
representing a 20 percent reduction in the program, if what is know as
the ``transition rule'' for California's public hospitals is not
extended. At my urging, this bill continues for California only the
``transition rule'' allowing California DSH hospitals to calculate
Medicaid payments at 175 percent of unreimbursed costs. Under this
provision, tens of millions of dollars will be restored to California
hospitals.
  Public hospitals carry a disproportionate share of caring for the
poor and uninsured. The uninsured often choose public hospitals and
frequently wait until their illnesses are exacerbated when they come to
the emergency room, making their care even more costly. Without this
transition rule, for example, Kern Medical Center, in Bakersfield,
would lose $8 million. Alameda County, would lose $14 million.
  Forty percent of all California uninsured hospital patients were
treated at public hospitals in 1998, up from 32 percent in 1993. The
uninsured as a share of all discharges for public hospitals grew from
22 percent in 1993 to 29 percent in 1998. While overall public hospital
discharges declined from 1993 to 1999 by 15 percent, discharges for
uninsured patients increased by 11 percent. Large numbers of uninsured
add huge uncompensated costs to our public hospitals.

                       medicaid community clinics

  Another important provision is the Medicaid payment method for
community health clinics. Extending the phase out of cost-based
reimbursement for community health clinics over four years will help
alleviate the financial burden associated with the more expedited
phase-out proposed under the Balanced Budget Act of 1997.
  BBA 1997 allowed state Medicaid programs to phase-out the previous
requirement that clinics be paid on the basis of cost. The phase-out
was to occur over 5 years. Under the phase-out, health centers could
lose as much as $1.1 billion in Medicaid revenues. California health
clinics' could have lost $969 million annually. To halt further
decreases in payments to community health, an extended phase-out of
cost-based reimbursement has been included in the bill which allows
clinics in fiscal year 2000 to be reimbursed at 95 percent and by 2003
at 90 percent of costs.
  California has over 7 million uninsured, and 306 federally qualified
health centers and 218 rural health clinics that rely on federal
funding so that they can provide vital health services to some of the
state's sickest and poorest. Over 80 of California's clinics are
located in underserved areas and provide primary and preventive
services to 10 percent of the uninsured people in the state. According
to the federal Bureau of Primary Health Care's Uniform Data System, 42
percent of California community health center patients are children, 52
percent are adults ages 21-64, and 6 percent are the elderly.

                              home health

  I am also pleased that the bill addresses home health care in this
bill. For example, the provision which delays the 15 percent reduction
in payment for one year will enable home health providers to transition
more smoothly and better maintain continuity of services to patients.
California will gain $162 million over 5 years as a result of all the
home health provisions included in the bill, according to preliminary
estimates by the California Association of Health Services at Home.
  While the intent of the BBA 1997 law was to restrain the growth of
Medicare home health expenditures, it is now anticipated that home
health expenditures in fiscal year 2000 will be lower than they were
projected in 1997. CBO estimated that BBA 1997 would cut $16 billion
over 5 years. Recent estimates show cuts of $48 billion over 5 years,
which is three times more than originally expected. HCFA's 1998 data
shows that total Medicare payments to home health agencies declined
between 1997 and 1998 by 33 percent; reimbursements dropped from $1.1
billion to $745 million.
  California home health providers have suffered immeasurably since
passage of the BBA. In California, 230 home health agencies have closed
since 1997, which is 25 percent of all state licensed agencies, largely
due to the effects of BBA, according to the California Association for
Health Services at Home. For example, the home health agency at the San
Gabriel Valley Medical Center, which was providing nearly 10,000
patient visits per year, was forced to close this year due in part to
the effects of the BBA. Additionally, between 1997-1998 there has been
a 12 percent decrease in the number of patients served nationally and a
35 percent decrease in the number of home health visits nationally. As
the population ages and families are more dispersed, it is especially
important to help people stay in their own homes.

                           medical education

  I support the provisions included in the bill which alleviate
reductions in graduate medical education and begin to restore equity in
payment levels. Freezing cuts in the indirect medical education (IME)
payment at the current level of 6.5 percent for fiscal year 2000, 6.25
percent in 2001, and 5.5 percent in 2002 and thereafter could help
stabilize teaching hospitals and prevent a loss of about $3 billion for
teaching hospitals nationwide over five years. For example, freezing
indirect medical education payment rates represents $5 million to
UCLA's teaching hospital. California's teaching hospitals as a whole
will receive approximately $52 million because of this freeze,
according to preliminary estimates by the California Health Care
Association.
  The bill also takes a good first step to correct Medicare's direct
medical education (DME) formula, a geographic disparity in payments,
that has paid California teaching hospitals far less than teaching
hospitals in the Northeast so that California's teaching hospitals can
begin to receive payments for medical residents closer to those of
their counterparts in other states. Currently, California teaching
hospitals receive 40% less in Medicare payments for medical education
than similar New York institutions. The DME provision in this bill
begins to reform a longstanding inequity in the formula that has
unfairly compensated medical education in California. California's
teaching hospitals will benefit from this provision by approximately
$52 million over five years, according to the California Health Care
Association.
  Many of the nation's teaching hospitals, including UCLA in
California, are premier research and clinical care facilities and will
be forced to close down beds and lower the quality of care they provide
if reductions in indirect medical education (IME) payments continues.
According to the Association of American Medical Colleges, 30 percent
of all teaching hospitals nationwide are now operating in the red, and
by 2002, 50 percent of all teaching hospitals will be losing money
without this bill.
  Academic medical centers deserve protection because they have
multiple responsibilities--teaching, research, and patient care--which
cause them to incur costs unique to such facilities. There are 400
teaching hospitals across the country. Teaching hospitals only account
for 5.5 percent of the nation's 5,000 hospitals but they house 40
percent of all neonatal intensive care units, 53 percent of pediatric
intensive care units, and 70 percent of all burn units. Our nation's
teaching hospitals are providing care to some of the nation's sickest
patients.
  Academic medical centers also provide care to a disproportionate
share of the uninsured and underinsured. They

[[Page S15058]]

provide 44 percent of all care for the poor. The University of
California's academic medical centers are the second largest safety net
for a state that has the fourth highest uninsured rate in the country.
  Medicaid disproportionate share payments to hospitals that serve the
impoverished were also reduced five percent over five years as a result
of the Balanced Budget Act of 1997. Teaching hospitals receive two-
thirds of all Medicaid disproportionate share payments, worth $4.5
billion annually.
  In California, graduate medical education (GME) funding helps support
108 hospitals that train more than 6,700 residents over three-to-five
year periods. In 1997, the direct medical education funding in
California totaled $95 million. Dr. Gerald Levey, the Medical Provost
at the University of California Los Angeles wrote that:

       In the 5\1/2\ years I have been in my position at UCLA, my
     colleagues and I have implemented virtually every conceivable
     cost-cutting measure to keep us financially strong in order
     to compete in the brutal managed care market and maintain our
     academic mission of research and teaching. Coming on the
     heels of these measures, the Balanced Budget Act of 197 has
     served to literally ``break the camel's back.''

Teaching hospitals' ability to serve their communities, advance
research, and train physicians will be compromised if we do not pass
this bill.

                       adequately paying doctors

  I also thank the Finance Committee and Administration for addressing
the issue of the ``sustainable growth rate'' factor in payments to
physicians under Medicare. The Balanced Budget Act of 1997 changed how
Medicare physician payment rates are updated every year, including
creating the new sustainable growth rate factor. In the first two years
of using the sustainable growth rate, it appears that errors in its
calculations were made because projections were used to determine the
rate rather than actual data. As a result of these errors, physicians
are caring for one million more patients than Medicare anticipated, at
a cost of $3 billion according to the American Medical Association.
  California's doctors have made a compelling case that errors in its
estimates have caused unintended reductions in payments to physicians.
The bill would require HCFA to use actual data beginning in 2001 to
calculate payments instead of projections in order to stabilize
payments to physicians who treat Medicare patients. While it does not
go far enough, it is a step in the right direction towards decreasing
fluctuations in physician payments from year to year.

                           retaining medicaid

  Another provision included in this bill that is of great importance
to California is removing the December 21, 1999 expiration date for the
$500 million Temporary Assistance to Needy Families (TANF) Fund. The
expiration date for these funds must be repealed so that states like
California can continue to use TANF funds to enroll low-income children
and adults in Medicaid and CHIP. As part of the 1996 welfare reform,
Medicaid was ``de-linked'' from cash assistance, and states were given
increased matching federal funds for administering a new Medicaid
family coverage category.
  Of the $500 million provided, as of July 1999, states have only spent
10 percent. Unless federal law is changed very soon, 34 states,
including California, will lose these funds by the end of this year
because under the law, states have to spend the funds within the first
12 calendar quarters that their TANF programs are in effect. Thus,
December 31, 1999, California will lose access to the $78 million
remaining of the $84 million allocated if we do not act. Fifteen other
states will lose access to their remaining funds in December as well.
On September 30, 1999, sixteen states lost access their funds due to
these time limits.
  We cannot let these funds lapse in California because we need to
enroll more working, low-income people in Medicaid and children in CHIP
and ensure that more Californians have access to health services.
  I thank the Committee and Administration for including this
provision.

                      medicare managed care reform

  I am pleased with the five-year moratorium placed on NCFA's use of
health status risk adjuster for payments to managed care plans included
in the bill. HCFA has been using hospitalizations as a measure of
health, which is not only an incomplete measure of health but also
unfairly penalizes states like California that historically have had a
heavy penetration of managed care, lower hospital admissions rates and
shorter hospital lengths of stay. The way Medicare pays managed care
plans deserves a thorough review to determine if both the payment
methodology and the payment rats are appropriate. This moratorium could
give us time to conduct a review as well as give HCFA time to develop a
better measure of health. Under this provision, $130 million over five
years will be restored so that managed care plans can pay providers
more adequately, according to preliminary estimates by the California
Health Care Association.

              environment post-balanced budget act of 1997

  Circumstances have changed since 1997 when we passed the Balanced
Budget Act. We have eliminated the federal deficit. Because we have a
robust economy, lower inflation, higher GDO growth and lower
unemployment, we also have lowered Medicare spending growth more than
anticipated. This climate provides us an opportunity to revisit the
reductions made by the Balanced Budget Act of 1997 and to strengthen
the stability of health care services, a system that in my state is on
the verge of unraveling.
  We should not end this session without passing this bill. Without it,
we could have a more severe health care crisis on our hands, especially
in my state. I urge my colleagues to join me in passing this bill.
  Mr. LOTT. Mr. President, today concludes a grueling debate on the
state of the dairy industry. Though the process was long and often
times quite confusing, I think the Senate has come to an agreement on a
package that will prove to be beneficial to most interested parties at
this time.
  Mr. President, I must say this process would not have been possible
without the diligent work of one of my former staffers, Congressman
Chip Pickering. I have always said ``once a Lott staffer, always a Lott
staffer.'' Although Chip has moved on to represent the people of the
third district of Mississippi, he continues to constantly be of great
help to me, and to always keep the best interest of the entire state of
Mississippi at heart.
  Chip believes that Option 1A is absolutely essential for allowing
most dairies in Mississippi and outside the upper Midwest to remain in
business, and he worked with me to see that this legislation was put
into law. He organized House members from across the country to fight
in order to see that the crucial dairy language we needed became law
this year.
  Chip realizes Option 1A is the only way the interests of
Mississippi's dairy farmers can be protected. Having grown up working
on his family's dairy farm, meeting with dairy farmers across
Mississippi, and working with Mississippi Farm Bureau, Chip knows the
importance of this legislation to the survival of dairy farms and to
the continued fresh supply of milk for all Mississippians. I thank
Congressman Pickering for his relentless efforts on behalf of
Mississippi dairy farmers.
  The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to the conference report to accompany H.R. 3194.
  The yeas and nays have not been ordered.
  Mr. LOTT. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays are ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oregon (Mr. Smith) is
necessarily absent.
  I further announce that, if present and voting, the Senator from
Oregon (Mr. Smith) would vote ``yea.''
  Mr. REID. I announce that the Senator from Washington (Mrs. Murray)
is absent attending a funeral.
  The result was announced--yeas 74, nays 24, as follows:

                      [Rollcall Vote No. 374 Leg.]

                                YEAS--74

     Abraham
     Akaka
     Ashcroft
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback

[[Page S15059]]

     Bryan
     Bunning
     Burns
     Campbell
     Chafee, L.
     Cleland
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Domenici
     Durbin
     Feinstein
     Frist
     Gorton
     Gramm
     Grassley
     Gregg
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McConnell
     Mikulski
     Moynihan
     Murkowski
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Snowe
     Specter
     Stevens
     Thompson
     Thurmond
     Torricelli
     Warner
     Wyden

                                NAYS--24

     Allard
     Baucus
     Bayh
     Boxer
     Byrd
     Conrad
     Dorgan
     Edwards
     Enzi
     Feingold
     Fitzgerald
     Graham
     Grams
     Hagel
     Inhofe
     Kohl
     Levin
     McCain
     Sessions
     Shelby
     Smith (NH)
     Thomas
     Voinovich
     Wellstone

                             NOT VOTING--2

     Murray
     Smith (OR)

  The conference report was agreed to.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. GORTON. I move to lay that motion on the table.
  The motion to table was agreed to.

           colloquy between senator warner and senator helms

  Mr. WARNER. I rise to address a number of aspects of the State
Department Authorization Act, which has been included in the final
omnibus budget package of legislation. This bill contains a number of
provisions that, directly and indirectly, affect the jurisdiction of
the Armed Services Committee, and I am very concerned by the fact that
this major bill was included with virtually no consultation with our
committee. I believe that the process works better when the normal
legislative procedures are followed.
  I would like to raise a specific issue with the distinguished
chairman of the Foreign Relations Committee. Section 1134 of the State
Department Authorization Act prohibits Executive Branch agencies from
withholding information regarding nonproliferation matters, as set
forth in section 602(c) of the Nuclear Non-Proliferation Act of 1978,
from the Senate Foreign Relations Committee and the House International
Relations Committee, including information in special access programs.
  I am aware that problems with the dissemination of nonproliferation
information have arisen in the past. DOD has taken steps to correct
these problems and has established a policy that special access
programs will not include nonproliferation information, as defined in
section 602(c) of the Nuclear Non-Proliferation Act of 1978. Based on
my review of DOD's special access programs, I believe that the
Department of Defense does not now have special access programs which
include such nonproliferation information. I have been assured that, in
the future, DOD will provide nonproliferation information to the
appropriate committees of Congress.
  Mr. HELMS. I thank my colleague, the chairman of the Armed Services
Committee. I too have been assured by the Department that it will not
use special access program status to deny the Foreign Relations
Committee access to the nonproliferation information required by
section 602(c).
  Mr. WARNER. I am concerned that some might interpret section 1134 of
the State Department Authorization Act as requiring expanded access to
sensitive DOD intelligence sources and methods, as contrasted with
nonproliferation information itself. I believe that section 1134 would
not require DOD to change its current procedures for protecting such
sensitive sources and methods. Is this also the understanding of the
chairman of the Foreign Relations Committee?
  Mr. HELMS. I believe that is correct. If the Department's assurances
are accurate, then this provision would not modify DOD's current
policies regarding the protection of sensitive sources and methods. The
Foreign Relations Committee has no intention of seeking expanded access
to such sources and methods, or to DOD special access programs, so long
as DOD lives up to its reporting obligations under existing law. DOD's
policy of not handling nonproliferation information within special
access channels certainly provides a significant reassurance in that
regard. Our concern is only to ensure that DOD policy regarding special
access programs or intelligence sources and methods not be seen as
obviating its long-standing legal obligations to inform appropriate
committees of Congress.
  Mr. WARNER. That is the case now, and I am pleased that DOD has
assured both of us that the prerogatives of the Foreign Relations
Committee will be protected. I thank my distinguished colleague, the
chairman of the Foreign Relations Committee.
  Mr. HELMS. I appreciate these assurances and thank my colleague, the
chairman of the Armed Services Committee.
  Mr. SHELBY. I am concerned with section 1134 which requires the DCI
to provide certain information, including information contained in
special access programs, to the chairman and ranking member of the
Foreign Relations Committees. I note that this language on special
access programs was added after the bill was passed by the Senate. I
wish to clarify that the legislative intent of this provision does not
wish to clarify that the legislative intent of this provision does not
include expanded information relating to intelligence operational
activities or sensitive sources and methods.
  I ask for the chairman of the Foreign Relations Committee's
clarification regarding the companion section in the State Department
Authorization bill, section 1131. Am I correct in understanding that
this provision does not levy the same requirement upon the Director of
Central Intelligence that is required of the Secretaries of Defense,
State, and Commerce?
  Mr. HELMS. That is correct, Mr. Chairman. Unlike the other
Secretaries you have mentioned, the Director of Central Intelligence is
required only to disclose information covered under subparagraph (B).
That information relates to significant proliferation activities of
foreign nations. The Director is exempt from reporting information
under subparagraph (A) and (B) which relates to the agency's
operational activities. The Foreign Relations Committee understands
that intelligence operations fall within the jurisdiction of the
Intelligence Committee, and therefore did not include such activities
in this reporting requirement.
  Mr. SHELBY. I thank the Chairman for that explanation and yield the
floor. I look forward to fully reviewing those provisions in the
Intelligence Committee next year.

                          ____________________
