[Pages S4262-S4280]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mrs. FEINSTEIN:
S. 580. A bill to amend the Immigration and Nationality Act to
control illegal immigration to the United States, reduce incentives for
illegal immigration, reform asylum procedures, strengthen criminal
penalties for the smuggling of aliens, and reform other procedures; to
the Committee on the Judiciary.

THE ILLEGAL IMMIGRATION CONTROL AND ENFORCEMENT ACT OF 1995

Mrs. FEINSTEIN. Mr. President, I rise today to introduce, and now
send to the desk, the Illegal Immigration Control and Enforcement Act
of 1995. This bill incorporates many of the concepts in the immigration
package that I introduced in the last session of Congress. New
proposals have been added, however, after consultation with many,
including California's law enforcement officials and others interested
in curbing illegal immigration.
Mr. President, I offer this legislation not to compete with Senator
Simpson's S. 269, which he introduced on January 24, but rather to
complement it. Little in this bill is duplicative of Senator Simpson's
legislation. I am convinced that, combined, these two bills could offer
a strong, straightforward program to stop illegal immigration.
There simply is no time to lose. The crisis of illegal immigration
continues in California and throughout the Nation.

[[Page S4263]]

Too many people are still able to illegally cross our borders, and
too few States, most notably California, carry the burden of having to
support, educate, and often incarcerate the hundreds of thousands who
enter this country illegally each year.
There is no doubt in my mind that our border enforcement has improved
in the last 2 years and I want to thank this administration for an
unprecedented commitment to that end. I am equally convinced, however,
that steps already taken have been insufficient to fully address the
problem.
Despite its major flaws and probable unconstitutionality, proposition
187 in California was overwhelmingly approved by voters last November.
The message was clear: Stop illegal immigration. If Congress does not
heed this warning, I fear an even more serious backlash nationwide
against all immigrants, including those who want to come to our country
legally.

Impact on California

One reason proposition 187 passed by such a large margin is that
Californians know the impact of immigration on our State. According to
1993 INS statistics, 45 percent of the Nation's illegal immigrants are
now in California. That means between 1.6 and 2.3 million illegal
immigrants now reside in our State; 15 percent of California's State
prison population--or almost 20,000 inmates--is comprised of
incarcerated illegal immigrants; 45 percent of all persons with pending
asylum cases reside in California; 35 percent of the refugees to this
country claimed residency in California in 1993; and almost 30 percent
of the legal immigrants in this have country chosen to live in
California.
According to the Governor of our State, illegal immigration in fiscal
year 1995-96 will cost California an estimated $3.6 billion, including
an $2.66 billion for the federally mandated costs of education, health
care, and incarceration. By anyone's estimation, that is a staggering
sum, and a tremendous burden on just one State.

The Need for Immigration Reform

I believe our Federal response to the problem of illegal immigration
must address four key goals: First, control illegal immigration at the
border; second, reduce the economic incentives to come to the United
States illegally; third, deal swiftly and severely with document
forgers and alien smugglers; and fourth, remove criminal aliens from
our Nation's prisons and jails, while assuring that their sentences are
served in their countries of origin.

Border Control

This legislation requires that at least 700, and up to 1,000, new
Border Patrol agents be hired in each of the next 3 fiscal years. It
differs from the crime bill in one critical respect. The crime bill
authorized the hiring of up to 1,000 new agents in each of Fiscal Years
1996, 1997 and 1998. This bill further requires that a minimum of 700
agents per year be hired. It thus adds a floor to the crime bill which
will assure that no fewer than 2,100 new agents, and up to 900 support
personnel, will be on board by the end of Fiscal Year 1998 for a total
of 7,082 Border Patrol agents.
It mandates the hiring of sufficient INS border inspectors to fully
staff all legal crossing lanes at peak periods. The bill also provides
for improved border infrastructure and Border Patrol training.

Reducing Incentives

Second, this legislation substantially expands existing employer
sanctions and wage and hour law enforcement programs to reduce the
biggest incentives for undocumented persons to come to this country,
namely jobs.
Central to this effort is the creation of a counterfeit-proof work
and benefits authorization verification system. Any employer--and any
provider of federally funded benefits--ought to be 100 percent certain
that a candidate is here legally. A counterfeit-proof verification
system is the only way this can be achieved.
In addition, this bill dramatically increases the civil fines for
anyone who knowingly hires, recruits, or refers illegal aliens for
hiring. This is important because today the civil penalties for
illegally hiring an illegal immigrant are very low. Fines range between
just $250 and $2,000--per alien hired--for a first offense.
This bill would increase that range from $1,000 to $3,000 for the
first offense.
Second offenses would carry per alien fines of between $3,000 and
$7,000, and third or later offenses would cost $7,000 to $20,000 per
alien--that is more than double the current $3,000 to $10,000
liability.
It dramatically increases the criminal penalties for a pattern or
practice of hiring illegal immigrants. This bill doubles the maximum
criminal fine, and triples the maximum jail sentence, for anyone who
facilitates a fraudulent application for benefits by an unlawful alien
by counterfeiting the seal or stamp of any Federal agency. If this bill
is enacted, the new maximums will be $500,000, or 15 years in jail, or
both.
It provides for additional INS and Department of Labor inspectors to
enforce existing laws and provides for the hiring of additional
assistant U.S. attorneys to more aggressively prosecute these crimes.

Smuggling and Document Fraud

Shutting down false document mills, counterfeiters, smugglers, and
smuggling organizations is the third priority at the core of this
legislation.
Smugglers and forgers will find this to be a very tough bill indeed.
This legislation broadens current Federal asset seizure authority to
include those who smuggle or harbor illegal aliens, and those who
produce false work and benefits documents.
It imposes tough minimum and maximum sentences on smugglers, and it
imposes those penalties for each alien smuggled. At the moment,
penalties are assessed per transaction, no matter how many illegal
immigrants a smuggler takes across our borders.
This bill increases the penalty for smugglers in the event that an
alien is injured, killed, or subject to blackmail threats by the
smuggler.
It makes it easier to deport so-called weekend warriors--legal
permanent residents, green card holders, who are in the United States,
smuggle illegal immigrants for profit, and then try to use their
immigration status to avoid being deported from the United States.
It dramatically increases penalties for document forgers or
counterfeiters. First offenders will be sentenced to 2\1/2\ to 5 years,
5 to 10 years with any prior felony conviction, and 10 to 15 years with
two or more prior felonies. Currently, document forgers can receive as
little as 0 to 6 months for a first offense.

Criminal Aliens

This legislation is intended to once again signal that the President
must have the authority, by treaty, to deport aliens convicted of
crimes in this country for secure incarceration in such aliens' home
countries.
Although we have prisoner transfer treaty agreements with many
nations now, they are subject to the consent of the prisoner to be
transferred. If the prisoner does not consent, he is not transferred.
This legislation eliminates that obstacle. It also would speed up the
deportation process and make more criminal aliens deportable by
broadening the definition of an aggravated felony for which aliens may
already be deported to include document fraud crimes not now
independent grounds for deportation; it classifies as aggravated
felonies certain offenses punishable by 3 years, rather than for which
an alien has actually been sentenced to 5 years or more. As a result,
it would definitely increase the number of criminals who would qualify
for deportation as having committed aggravated felony.
In addition, courts would have the authority to require that, in
order to receive a sentence of probation rather than a prison term, an
illegal alien convicted of a crime would be required to consent to
being deported as a condition of probation. This would give prosecutors
the option of ejecting from the country relatively low-level offenders
after trial without going through an additional, and often lengthy,
deportation hearing.

Sponsors of Legal Immigrants

Before concluding, let me note just one other feature of the bill
which pertains to immigrants who have lawfully come to the United
States on the basis of a citizen's--usually an immediate relative's--
sponsorship. The legislation would require anyone who sponsors a legal
immigrant for admission to the United States to make good on their
promise of financial support should the
[[Page S4264]] legal alien require assistance before becoming a
citizen.
In addition, past proposals to strengthen sponsorship agreements
typically exempted sponsors from liability for medical costs.
This legislation would make sponsors responsible for the costs of
medical care, requiring them to obtain health insurance for the
immigrant they have sponsored. The insurance would be of a type and
amount to be specified by the Secretary of Health and Human Services,
and would be required to be purchased within 20 days of an immigrant's
arrival in this country. A safety valve is built into the bill,
however, for sponsors who die, or who become impoverished or bankrupt.

Border Crossing Fee

This bill also provides a funding mechanism for this package with a
border crossing fee of $1 per person, which could yield up to $400
million per year. The border control, the infrastructure, the training,
the additional narcotics abatement efforts provided in this bill all
could be underwritten by such a fee.

Conclusion

In conclusion, Mr. President, immigration is too much at the core of
what America means to each of us individually, and to our society
collectively, to politicize and polarize the coming debate. If we are
to map common ground together, it is the spirit of compromise that must
prevail. We owe America--America the Nation and America the idea--no
less.
I look forward to continuing to work closely with the chairman of my
subcommittee, Senator Simpson, with Senators Kennedy and Simon, and
with all of my Republican colleagues on the subcommittee to present the
full Judiciary Committee and the Senate with the best possible
comprehensive illegal immigration legislation as quickly as possible.
______

By Mr. HATFIELD (for himself and Mr. Brown):
S. 582. A bill to amend title 28, United States Code, to provide that
certain voluntary disclosures of violations of Federal laws made
pursuant to an environmental audit shall not be subject to discovery or
admitted into evidence during a Federal judicial or administrative
proceeding, and for other purposes; to the Committee on the Judiciary.

ENVIRONMENTAL AUDIT PRIVILEGE LEGISLATION

<bullet> Mr. HATFIELD. Mr. President, with the recent changes in
Congress, we are presented with an important opportunity to take a
fresh look at many aspects of our Federal legal and regulatory system.
A return to federalism is underway including a movement to allow
greater flexibility in administering Federal programs. I support a full
review of the Federal regulatory straitjacket we have helped create and
believe that greater flexibility should be extended to both the public
and private sectors of this Nation.
As my colleagues know, it is difficult to have a conversation these
days with a business leader or a local government official without the
topic turning to the increasingly onerous burden of Federal
regulations--particularly environmental regulations. It is now clear
the many of our laws and regulations designed to ensure a safer
environment are now having the unfortunate effect of discouraging sound
environmental practices.
The legislation I will introduce today makes the point that the
Federal Government should encourage responsible actions by businesses
with incentives and flexibility, rather than through threats and
penalties. Given the limited resources available for environmental
enforcement and monitoring, it is vital that companies self-police and
be willing partners in the implementation of the Nation's environmental
programs. There is no other way to protect our people, our communities,
and our environment.
In an effort to advance this idea, I am introducing the Environmental
Audit Privilege Act. I am pleased to be joined in this effort by my
friend from Colorado, Senator Hank Brown.
This legislation will create new incentives for companies to police
their own environmental actions by establishing a limited legal
privilege for businesses that voluntarily audit their compliance with
environmental laws and promptly proceed to correct any violations
discovered.
In 1993, Oregon became the first State to codify a privilege for
environmental audits. Under the Oregon law, an internal environmental
audit, undertaken voluntarily, cannot be used against the company in a
trial or administrative action, unless efforts to comply were not
promptly initiated and pursued with reasonable diligence or the
privilege was invoked for fraudulent purposes. The Oregon law garnered
support not only from the business community, but also from the Oregon
Department of Environmental Quality and the State attorney general.
These supporters have told me of the positive effects this law has had
in Oregon.
Six other States have created a similar privilege, including
Colorado, Indiana, Kentucky, Arkansas, Illinois, and Wyoming. Nearly
two dozen other States are considering bills to create an environmental
audit privilege. Supporters of these State provisions argue that their
efforts are undermined by the absence of a Federal counterpart. To
avoid the State privilege, a litigant must simply file suit in Federal
court, where it is possible the State privilege will not be recognized.
The legislation I put forward today is an extension of legislation I
introduced in the 103d
Congress which was based solely on the Oregon law. A new section has
been added to this bill as a result of the very constructive efforts of
Senator Brown. This new section is based on a worthy idea pioneered by
the State of Colorado.

The audit privilege portion of my bill strikes an equitable balance
between protecting a company's right to self-police and ensuring that
businesses comply with environmental regulations. There are clear
limits on the privilege, however. The privilege would cease to exist if
used for fraudulent activities or if waived by a company. Furthermore,
the privilege is moot if the company does not promptly act to achieve
compliance when a violation is discovered in an audit. This factor
ensures a strong incentive for companies to immediately correct any
potential or real problem in their activities.
Even if the company proceeds immediately to correct a violation, the
privilege is not absolute. The privilege only extends to information in
the audit report, not to the violation itself. It would not bar
enforcement action for environmental violations; no environmental law
is decriminalized nor are enforcement agencies barred from pursuing
action. This protection does not prevent an agency or an injured party
from pursuing legal action against a violator on the basis of
independent evidence of the violation.
Oregon's law has expanded employee involvement, which has made audits
more complete and accurate, and it has helped employees connect their
daily jobs with environmental compliance. It has also created new
incentives for companies to independently pursue compliance while
encouraging businesses to adopt more systematic approaches to examining
and correcting their environmental activities.
Last, but by no means least, lawyers are no longer needed in Oregon
to shield audit documents under the attorney-client privilege.
Companies can now feel secure in keeping records, and they have had
much greater success in dealing with chronic problems. Removing lawyers
from audits substantially reduces the cost of auditing and improves the
frankness of information flowing within companies.
The legislation I am introducing today also includes a very important
section which I will refer to as voluntary disclosure. This section
provides protection for companies that wish to step forward and
voluntarily disclose inadvertent violations of environmental laws that
come to light through the conduct of a voluntary environmental audit.
Again, these provisions are based on a law first passed in the State of
Colorado. It has been a pleasure to have worked with Senator Brown and
his fine staff over the past several months to reach agreement on this
important section of the bill.
Under this section, if an audit reveals a previously unknown
environmental violation, the company will be immune from
administrative, civil, or criminal penalties if it: First, promptly and
voluntarily discloses the violation to the regulatory agency; second,
takes prompt steps to correct the problem; and, third, fully cooperates
with the
[[Page S4265]] regulatory agency. As with the privilege, this
protection does not prevent an agency or an injured party from pursuing
legal action against a violator on the basis of independent evidence of
the violation.
While Oregon did not include such provisions in its law, I believe
providing protections for voluntary disclosures is a meritorious idea,
and one certainly worthy of the full consideration of the Senate. As
one of my colleagues recently noted, sunlight is an excellent
disinfectant. Thus, while the privilege portions of this bill allow an
environmental audit to remain secret, the voluntary disclosure
provisions would give the public access to this important information
and would require any violations be addressed promptly.

Last week, President Clinton announced his plans to encourage
environmental audits as part of a package of regulatory reform
measures. I want to commend the President and those at EPA who have
recognized the benefits of encouraging companies to engage in this type
of self-analysis. I believe both business profitability and the
environment will benefit from these efforts, and I look forward to
working with the administration on the legislative side of this effort.
I am aware the administration has serious misgivings about codifying
and audit privilege and has raised questions about the voluntary
disclosure protection in this bill. I admit this is an issue that
excludes great common sense appeal upon first glance, but which
certainly grows more complex with each level of further analysis. While
I am not a lawyer, my further analysis leads me to the conclusion that
this idea is sound and that the Nation would benefit from the debate
this legislative proposal will inevitably generate.
Self-enforcement by responsible companies is vital to the success of
our environmental objectives. It is a fact that most companies want to
police themselves. Not only is it morally correct, it is also
consistent with a total quality management approach to business
management, for companies to take a proactive approach to environmental
safety. It makes business sense and is less costly for a company to
find and rectify a violation than it is to face regulatory, civil, or
criminal action. Incentives for self-enforcement will help free up the
very limited resources of Federal and State environmental and
enforcement agencies, allowing them to pursue the most severe,
egregious, and dangerous violations of our environmental laws.
Federal policy must promote the delicate balance between protecting
our environment and allowing business to flourish. The Environmental
Audit Privilege Act will provide companies with greater flexibility and
with incentives for compliance with environmental protection
regulations. Such protections will signal an important step toward
ensuring the success of our businesses and of our environmental
programs.
Mr. President, I ask unanimous consent that the text of the bill and
additional material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the ``Voluntary Environmental
Audit Protection Act''.

SEC. 2. VOLUNTARY SELF-EVALUATION PROTECTION.

(a) In General.--Part VI of title 28, United States Code,
is amended by adding at the end the following new chapter:

``CHAPTER 179--VOLUNTARY SELF-EVALUATION PROTECTION
``Sec.
``3801. Admissibility of environmental audit reports.
``3802. Testimony.
``3803. Disclosure to a Federal agency.
``3804. Definitions.
``Sec. 3801. Admissibility of environmental audit reports

``(a) General Rule.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), an environmental audit report prepared in good faith by
a person or government entity related to, and essentially
constituting a part of, an environmental audit shall not be
subject to discovery and shall not be admitted into evidence
in any civil or criminal action or administrative proceeding
before a Federal court or agency or under Federal law.
``(2) Exclusions.--Paragraph (1) shall not apply to--
``(A) any document, communication, data, report, or other
information required to be collected, developed, maintained,
or reported to a regulatory agency pursuant to a covered
Federal law;
``(B) information obtained by observation, sampling, or
monitoring by any regulatory agency; or
``(C) information obtained from a source independent of the
environmental audit.
``(3) Inapplicability.--Paragraph (1) shall not apply to an
environmental audit report, if--
``(A) the owner or operator of the facility that initiated
the environmental audit expressly waives the right of the
person or government entity to exclude from the evidence or
proceeding material subject to this section;
``(B) after an in camera hearing, the appropriate Federal
court determines that--
``(i) the environmental audit report provides evidence of
noncompliance with a covered Federal law; and
``(ii) appropriate efforts to achieve compliance were not
promptly initiated and pursued with reasonable diligence; or
``(C) the person or government entity is asserting the
applicability of the exclusion under this subsection for a
fraudulent purpose.
``(b) Determination of Applicability.--The appropriate
Federal court shall conduct an in camera review of the report
or portion of the report to determine the applicability of
subsection (a) to an environmental audit report or portion of
a report.
``(c) Burdens of Proof.--
``(1) In general.--Except as provided in paragraph (2), a
party invoking the protection of subsection (a)(1) shall have
the burden of proving the applicability of such subsection
including, if there is evidence of noncompliance with an
applicable environmental law, the burden of proving a prima
facie case that appropriate efforts to achieve compliance
were promptly initiated and pursued with reasonable
diligence.
``(2) Waiver and fraud.--A party seeking discovery under
subparagraph (A) or (C) of subsection (b)(3) shall have the
burden of proving the existence of a waiver, or that
subsection (a)(1) has been invoked for a fraudulent purpose.
``(d) Effect on Other Rules.--Nothing in this Act shall
limit, waive, or abrogate the scope or nature of any
statutory or common law rule regarding discovery or
admissibility of evidence, including the attorney-client
privilege and the work product doctrine.

``Sec. 3802. Testimony

``Notwithstanding any other provision of law, a person or
government entity, including any officer or employee of the
person or government entity, that performs an environmental
audit may not be required to give testimony in a Federal
court or an administrative proceeding of a Federal agency
without the consent of the person or government entity
concerning the environmental audit, including the
environmental audit report with respect to which section
3801(a) applies.

``Sec. 3803. Disclosure to a Federal agency

``(a) In General.--The disclosure of information relating
to a covered Federal law to the appropriate official of a
Federal agency or State agency responsible for administering
a covered Federal law shall be considered to be a voluntary
disclosure subject to the protections provided under section
3801, section 3802, and this section if--
``(1) the disclosure of the information arises out of an
environmental audit;
``(2) the disclosure is made promptly after the person or
government entity that initiates the audit receives knowledge
of the information referred to in paragraph (1);
``(3) the person or government entity that initiates the
audit initiates an action to address the issues identified in
the disclosure--
``(A) within a reasonable period of time after receiving
knowledge of the information; and
``(B) within a period of time that is adequate to achieve
compliance with the requirements of the covered Federal law
that is the subject of the action (including submitting an
application for an applicable permit); and
``(4) the person or government entity that makes the
disclosure provides any further relevant information
requested, as a result of the disclosure, by the appropriate
official of the Federal agency responsible for administering
the covered Federal law.
``(b) Involuntary Disclosures.--For the purposes of this
chapter, a disclosure of information to an appropriate
official of a Federal agency shall not be considered to be a
voluntary disclosure described in subsection (a) if the
person or government entity making the disclosure has been
found by a Federal or State court to have committed repeated
violations of Federal or State laws, or orders on consent,
related to environmental quality, due to separate and
distinct events giving rise to the violations, during the 3-
year period prior to the date of the disclosure.
``(c) Presumption of Applicability.--If a person or
government entity makes a disclosure, other than a disclosure
referred to in subsection (b), of a violation of a covered
Federal law to an appropriate official of a Federal agency
responsible for administering the covered Federal law--
``(1) there shall be a presumption that the disclosure is a
voluntary disclosure described
[[Page S4266]] in subsection (a), if the person or government
entity provides information supporting a claim that the
information is such a voluntary disclosure at the time the
person or government entity makes the disclosure; and
``(2) unless the presumption is rebutted, the person or
government entity shall be immune from any administrative,
civil, or criminal penalty for the violation.
``(d) Rebuttal of Presumption.--
``(1) In general.--The head of a Federal agency described
in subsection (c) shall have the burden of rebutting a
presumption established under such subsection. If the head of
the Federal agency fails to rebut the presumption--
``(A) the head of the Federal agency may not assess an
administrative penalty against a person or government entity
described in subsection (c) with respect to the violation of
the person or government entity and may not issue a cease and
desist order for the violation; and
``(B) a Federal court may not assess a civil or criminal
fine against the person or government entity for the
violation.
``(2) Final agency action.--A decision made by the head of
the Federal agency under this subsection shall constitute a
final agency action.
``(e) Statutory Construction.--Except as expressly provided
in this section, nothing in this section is intended to
affect the authority of a Federal agency responsible for
administering a covered Federal law to carry out any
requirement of the law associated with information disclosed
in a voluntary disclosure described in subsection (a).

``Sec. 3804. Definitions

``As used in this chapter:
``(1) Covered federal law.--The term `covered Federal
law'--
``(A) means--
``(i) the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. 136 et seq.);
``(ii) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.);
``(iii) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
``(iv) the Oil Pollution Act of 1990 (33 U.S.C. 2701 et
seq.);
``(v) title XIV of the Public Health Service Act (commonly
known as the `Safe Drinking Water Act') (42 U.S.C. 300f et
seq.);
``(vi) the Noise Control Act of 1972 (42 U.S.C. 4901 et
seq.);
``(vii) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
``(viii) the Clean Air Act (42 U.S.C. 7401 et seq.);
``(ix) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.);
``(x) the Emergency Planning and Community Right-To-Know
Act of 1986 (42 U.S.C. 11001 et seq.); and
``(xi) the Pollution Prevention Act of 1990 (42 U.S.C.
13101 et seq.);
``(B) includes any regulation issued under a law listed in
subparagraph (A); and
``(C) includes the terms and conditions of any permit
issued under a law listed in subparagraph (A).
``(2) Environmental audit.--The term `environmental audit'
means a voluntary and internal assessment, evaluation,
investigation or review of a facility that is--
``(A) initiated by a person or government entity;
``(B) carried out by the employees of the person or
government entity, or a consultant employed by the person or
government entity, for the express purpose of carrying out
the assessment, evaluation, investigation, or review; and
``(C) carried out to determine whether the person or
government entity is in compliance with a covered Federal
law.
``(3) Environmental audit report.--The term `environmental
audit report' means any reports, findings, opinions, field
notes, records of observations, suggestions, conclusions,
drafts, memoranda, drawings, computer generated or
electronically recorded information, maps, charts, graphs,
surveys, or other communications associated with an
environmental audit.
``(4) Federal agency.--The term `Federal agency' has the
meaning provided the term `agency' under section 551 of title
5.
``(5) Government entity.--The term `government entity'
means a unit of State or local government.''.
(b) Technical Amendment.--The analysis for part VI of title
28, United States Code, is amended by adding at the end the
following:

``179. Voluntary Self-Evaluation Protection.................3801''.....
SEC. 3. APPLICABILITY.

This Act and the amendment made by this Act shall apply to
each Federal civil or criminal action or administrative
proceeding that is commenced after the date of enactment of
this Act.
____

Summary of Hatfield/Brown Voluntary Environmental Audit Protection Act

The ``Voluntary Environmental Audit Protection Act'' amends
Title 28 of the U.S. Code by adding Chapter 179 entitled
``Voluntary Self-Evaluation Protection.'' The purpose is to
protect environmental audits and provide qualified penalty
immunity for voluntary disclosures made as a result of
conducting environmental audits. The Act consists of the
following four sections:

A. Sec. 3801. Admissibility of Environmental Audit Reports

Generally, environmental audit reports prepared in good
faith are not subject to discovery and are not admissible in
any federal administrative or judicial proceeding.
Exclusions: The protection against admissibility does not
apply to documents or information: Required to be collected,
maintained or reported under environmental laws; available
due to the agency's own observation, sampling or monitoring;
or available from an independent source.
Waiver: Waiver can only occur by an express waiver by the
owner or operator of the facility that initiated audit.
Inapplicability: The protection is not applicable if: An
environmental audit report shows non-compliance with an
environmental law and the entity does not promptly initiate
actions to achieve compliance and pursue those actions with
reasonable diligence, or the protection is claimed for a
fraudulent purpose.
Determination of Applicability: A federal court determines
the applicability of the protection in an in camera review of
an audit report or portion of an audit report.
Burden of Proof: The person or government entity invoking
the protection has the burden of demonstrating its
applicability and if there are instances of non-compliance,
that appropriate efforts to achieve compliance have been
initiated. The party seeking discovery of the audit report
has the burden of proving that the protections were waived
or that the privilege was invoked for a fraudulent
purpose.
Other Statutes/Requirements: The Act does not affect any
existing statutory or common law rules of evidence, discovery
or privilege (such as attorney-client privilege and work-
product doctrine).

b. Sec. 3802. testimony

Any person that performs an environmental audit is not
required to give testimony relating to the audit in an
administrative or judicial proceeding. This applies to
officers and employees of the person or government entity as
well as the person or government entity itself.

c. Sec. 3803. disclosure to a federal agency

The Act defines a disclosure as ``voluntary'' if: it arises
out of an ``environmental audit'' (as defined); it is made
promptly after learning of the information; actions are
undertaken to achieve compliance; and the person or entity
making the disclosure provides additional relevant
information as requested by the appropriate agency.
Involuntary Disclosures: Otherwise voluntary disclosures
will not be voluntary if the person or government entity has
committed repeated violations of federal or state
environmental laws or orders during the three years prior to
the disclosure.
Presumption of Voluntariness: Disclosures are presumed to
be voluntary, and unless rebutted, the person or government
entity is immune from administrative, civil or criminal
penalties for the violation(s) disclosed.
Rebuttal of Presumption: The federal agency has the burden
of rebutting the presumption of voluntariness of the
disclosure.
d. Sec. 3804. Definitions

``Covered Federal Law'' includes FIFRA, TSCA, the Clean
Water Act, the Oil Pollution Act of 1990, the Safe Drinking
Water Act, the Noise Control Act, RCRA, the Clean Air Act,
CERCLA, EPCRA and the Pollution Prevention Act of 1990, and
any regulations or permits issued thereunder.
``Environmental Audit'' is a voluntary and internal review,
assessment, evaluation or investigation that is initiated by
the person or government entity, carried out by the person or
government entity or its employees to determine compliance
with any covered Federal law.
``Environmental Audit Report'' generally includes any
reports, findings, opinions, observations, and conclusions
relating to an environmental audit.
``Government Entity'' means any unit of state or local
government.

OVERVIEW OF STATE ENVIRONMENTAL AUDIT PRIVILEGE LAWS
[<copyright>1995 Coalition for Improved Environmental Audits--Current as of Mar. 6, 1995]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Issues AR\1\ CO\2\ IL\3\ IN\4\ KY\5\ OR\6\ WY\7\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Environmental Audit Report: Requires documents Yes No Yes Yes Yes Yes Yes
comprising environmental audit report to be prepared
as a result of an environmental audit and labeled
``Environmental Audit Report: Privileged Document.''.
Voluntary Disclosure:
Immunity or reduction in penalties for voluntary No Yes No No No No Yes
disclosure.
Immunity from criminal charges for voluntary No Yes No No No No No
disclosure.
Waiver of Privilege:
Expressly......................................... Yes Yes Yes Yes Yes Yes Yes
By implication.................................... Yes Not stated Not stated Yes Yes Yes Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page S4267]]
OVERVIEW OF STATE ENVIRONMENTAL AUDIT PRIVILEGE LAWS--Continued
[<copyright>1995 Coalition for Improved Environmental Audits--Current as of Mar. 6, 1995]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Issues AR\1\ CO\2\ IL\3\ IN\4\ KY\5\ OR\6\ WY\7\
--------------------------------------------------------------------------------------------------------------------------------------------------------
By failing to file a petition for in camera review Yes Not stated Yes Yes Yes Yes Yes
or hearing (# of days to file petition after (30 days) (30 days) (30 days) (20 days) (30 days) (20 days)
filing or request for the environmental audit
report).
By introduction of any part of the environmental No Not stated Not stated Not stated Yes Not stated No
audit report by party asserting the privilege.
Privilege is lost if:
Asserted for fraudulent purposes.................. Yes Yes Yes Yes Yes Yes Yes
Material is not subject to the privilege.......... Yes Not stated Yes Yes Yes Yes Yes
Material shows evidence of non-compliance and Yes Yes Yes Yes Yes Yes Yes
efforts to achieve compliance were not promptly
initiated and pursued with reasonable diligence.
In a criminal proceeding, the legal official has a Not stated Yes Not stated Yes Yes Yes Yes
(need, substantial need, compelling need, or
compelling circumstances) requiring the otherwise
unavailable information.
Burden of Proof:
Party asserting the privilege has burden of Yes Yes\8\ No\9\ Yes Yes Yes Yes
proving privilege and reasonable diligence toward
compliance.
Party seeking disclosure has burden of proving Yes Yes Yes Yes Yes Yes Yes
fraudulent purpose.
Legal official or party seeking disclosure has Yes Yes Yes Yes Yes Yes Yes
burden of proving conditions for disclosure.
Provision for disclosure of only the portions of the Yes Not stated Yes Yes Yes Yes Yes
environmental audit report relevant to the issues in
the dispute.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Enacted February 17, 1995. Effective 90 days after the legislative session ends. Act No. 350 of the 1995 Session.
\2\Effective June 1, 1994. Colorado Revised Statutes Section 13-25-126.5.
\3\Effective January 24, 1995. Illinois Public Act 88-0690.
\4\Effective July 1, 1994. Indiana Code 13-10.
\5\Effective July 15, 1994. Title XVIII, Kentucky Statute Sec. 224.01-040.
\6\Effective 1994. Or. Rev. Stat. Sec. 468.963.
\7\Enacted February 18, 1995. Effective July 1, 1995.
\8\Party asserting privilege has burden of proving a prima facie case.
\9\Party asserting privilege has burden of proving privilege, but adverse party has burden of showing lack of reasonable diligence toward compliance.

SUMMARY OF 1995 STATE AND FEDERAL LEGISLATIVE INITIATIVES FOR THE ENVIRONMENTAL AUDIT PRIVILEGE
[1995 Coalition for Improved Environmental Audits--Revised Mar. 10, 1995]
----------------------------------------------------------------------------------------------------------------
``Environmental
Audit Report'' Immunity for Immunity
State and legislative status Reference No. label required voluntary includes
on privileged disclosure? criminal
document? charges?
----------------------------------------------------------------------------------------------------------------
Arizona: Approved by Senate. Sent to S.B. 1290................... NO YES YES
House.
Arkansas: Signed into law on 2/17/95. Act No. 350 of 1995 Session. YES NO NO
Georgia: Introduced in Senate........ S.B. 244.................... NO NO NO
Hawaii:
Introduced in House.............. H.B. 390.................... YES NO NO
Introduced in Senate............. S.B. 1304................... NO YES YES
Idaho: Approved by Senate. Sent to S. 1142..................... YES YES YES
House.
Kansas: Approved by Senate. Sent to S.B. 76..................... YES YES YES
House.
Massachusetts: Introduced in House... H. 3426..................... NO NO NO
Mississippi: Bill passed both Houses. S.B. 3079................... NO YES\1\ YES
Returned to Senate for concurrence 3/
7/95.
Missouri: Bills introduced in House H.B. 338.................... NO YES YES
and Senate. S.B. 350.................... NO YES YES
S.B. 363.................... YES YES\1\ NO
Montana: Introduced in House......... H.B. 412.................... YES YES YES
Nebraska: Introduced to Legislature.. L.B. 731.................... NO YES YES
New Hampshire: Introduced in House... H.B. 275.................... NO YES YES
New Jersey: Bills introduced in A.B. 2521................... NO YES YES
Assembly and Senate. S.B. 1797................... NO YES YES
North Carolina: To be introduced in ............................ NO NO NO
larger regulatory reform proposal.
Ohio: A bill similar to S.B. 361 of ............................ NO YES YES
1994 to be introduced.
Oklahoma: Introduced in House........ H.B. 1388................... YES YES YES
South Carolina: Introduced in Senate. S.B. 15..................... NO YES YES
Tennessee: Introduced in Senate...... S.B. 1135................... YES YES YES
Texas:
Introduced in House.............. H.B. 2473................... YES YES YES
Senate bill to be introduced..... S.B. ______................. YES YES YES
Utah: Bill passed both Houses 3/1/95. S.B. 84..................... NO NO NO
Sent to Governor.
Virginia: Bill passed both Houses 2/ H.B. 1845................... NO YES NO
16/95. Sent to Governor.
West Virginia: Bills introduced in H.B. 2494................... NO NO NO
Senate and House. S.B. 362.................... NO NO NO
Wyoming: Signed into law on 2/18/95.. Act No. 26 of 1995 Session.. YES YES\1\ NO
Federal: Introduced in the House on 2/ H.R. 1047................... NO YES YES
24/95 with 6 co-sponsors.
----------------------------------------------------------------------------------------------------------------
\1\Voluntary disclosures warrant either de minimis or reduced penalties.

Note: Other States with proposals not yet introduced: Alabama, California, Florida, Michigan, and Minnesota.

Associated Oregon Industries,

Salem, OR, March 17, 1995.
Re legislation for a Federal environmental audit privilege.
Hon. Mark O. Hatfield,
U.S. Senator, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: I understand you are favorably
inclined to introducing legislation this Congress for a
federal environmental audit privilege. Your bill would be
modeled along the lines of the law Associated Oregon
Industries pushed through the Oregon legislature in 1993. On
behalf of Associated Oregon Industries' 2,400 primary members
and 14,000 associate members, I applaud you efforts to
actively pursue a federal law protecting environmental audit
reports.
Oregon's environmental audit privilege was signed into law
by Gov. Barbara Roberts on July 22, 1994. Oregon's law is the
first of its kind in the nation. Since enactment, other
states have adopted similar laws.
As a whole, Oregon industry works hard to comply with
today's complex and voluminous environmental laws. Perfect
compliance at all times, however, is a virtually unattainable
objective for large facilities. Compliance is made all the
more difficult when reports, generated during a company's
voluntary environmental audit, are not confidential. Prior to
Oregon's law, environmental agencies could obtain such audit
reports and use them against a company in an enforcement
action. By making environmental audit reports privileged.
Oregon's law protects companies from ``hanging themselves''
as long as actions are taken to correct any violations found.
Though Oregon's regulated companies are reacting positively
to the new state protections, Oregon's new law does not
complete the protection circle. The Environmental Protection
Agency is not bound by Oregon's environmental audit privilege
and occasionally inspects Oregon companies. This is why a
federal environmental audit privilege is needed.
Thank you for your efforts. I look forward to working with
you.
Sincerely,
James M. Whitty,
Legislative Counsel.
____

Port of Portland,

Portland, OR, March 20, 1995.
Hon. Mark O. Hatfield,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: On behalf of the Port of Portland, I
want to express the Port's strong support for the
environmental auditing privilege and voluntary disclosure
bill that you are sponsoring.
The Port conducts periodic environmental audits at all of
its facilities. The enactment of a federal environmental
auditing privilege and voluntary disclosure provision will
encourage many more businesses, especially medium- and small-
sized businesses, to start environmental auditing. By
limiting the fear that their voluntarily prepared
environmental audit reports will be used against
[[Page S4268]] them in enforcement proceedings, your bill
will spur this auditing activity.
In addition to the environmental audit report evidentiary
privilege, I understand your legislation includes a voluntary
disclosure component to protect persons who discover
inadvertent environmental violations from criminal or civil
penalties, if they report the violations to the proper
authorities and remedy them promptly. We believe this
voluntary disclosure provision is as important as the
environmental auditing privilege. We are pleased to see that
your bill includes both of these elements.
Your environmental audit privilege and voluntary disclosure
legislation should result in more companies conducting
environmental audits and in a substantial overall increase in
compliance with environmental requirements. Thank you for
your efforts. Please let me know if there are steps we can
take to support passage of this measure.
Sincerely,
David Lohman,
Director, Policy and Planning.
____

Litton Corp.,

Arlington, VA, March 14, 1995.
Hon. Mark O. Hatfield,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: I am writing on behalf of Litton
Industries, Inc. to express Litton's strong support for the
environmental auditing privilege and voluntary disclosure
bill that you are co-sponsoring with Sen. Brown, and that we
understand you intend to introduce imminently.
Litton is a leader in worldwide technology markets for
advanced electronic and defense systems, and a major designer
and builder of large, multimission combat ships for the U.S.
Navy and allied nations. Litton employs approximately 30,000
people at numerous facilities across the country, including
approximately 200 people in our Grants Pass, Oregon facility.
Litton conducts periodic environmental audits at all of its
U.S. facilities. The enactment of a federal environmental
auditing privilege and voluntary disclosure provision will
encourage many more businesses, especially medium- and small-
sized businesses, to start environmental auditing programs,
without fear that their voluntarily prepared environmental
audit reports will be used against them in enforcement
proceedings.
In addition to the environmental audit report evidentiary
privilege, we understand that your legislation includes a
voluntary disclosure component which protects persons who
discover inadvertent environmental violations, report the
violations to the proper authorities, and remedy them
promptly from criminal or civil penalties. Litton views the
voluntary disclosure provision to be as important as the
environmental auditing privilege, and we are gratified that
your bill will include both of these elements.
Litton believes that your environmental audit privilege and
voluntary disclosure legislation will result in more
companies conducting environmental audits, and in a
substantial overall increase in compliance with environmental
requirements. Litton commends and will support your
environmental audit privilege and voluntary disclosure bill.
We believe that it represents a superior approach to
environmental compliance because it emphasizes improved
environmental quality rather than increased environmental
enforcement. Thank you for your efforts.
Sincerely,
Mark V. Stanga,
Environmental Affairs Counsel.
____

Ontario Produce,

March 17, 1995.
Senator Mark O. Hatfield,
U.S. Senate,
Washington, DC.
Dear Senator Hatfield: I would like to give my support for
your bill providing for a federal environmental audit
privilege similar to the Oregon law. It would allow
businesses to realistically correct problems without creating
more problems for themselves.
Very truly yours,
Robert Komoto.
____

AT&T,

Washington, DC, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Dear Senator Hatfield: We at AT&T were pleased to learn
that you plan to introduce a bill establishing a privilege
for environmental audits and a limited ``safer harbor'' for
those who voluntarily correct and disclose environmental
infractions.
AT&T has a strong record of environmental compliance, has
performed environmental self-audits for many years, and is
continuously improving its environmental compliance
management systems. AT&T has played a strong role in
protecting our environment through voluntary reductions in
materials usage and recycling.
Environmentally responsible companies such as AT&T, which
perform voluntary self-assessments, are presently placed in
the uncomfortable position of creating documents in the
course of their voluntary compliance efforts which government
agencies and special interest groups will try to use against
them in penalty actions and citizen's suits.
Similarly, enforcement agencies often assess large
penalties as a consequence of a responsible company's
voluntarily disclosure of an environmental infraction
discovered through voluntary audits and self-assessment
processes and voluntarily corrected. Absent these voluntary
audit and self-assessment procedures, such violations would
likely continue uncorrected, undisclosed, and unpenalized.
Thus, current enforcement policy works as a disincentive to
voluntary compliance, and thus works against the environment.
AT&T salutes your efforts to legislatively remedy this
problem. AT&T would fully support a bill that would, under
appropriate conditions, protect environmental audits from
disclosure and create a safe harbor for companies that have
voluntarily discovered, corrected, and disclosed
environmental violations to the government.
We look forward to working with you, your staff, and other
interested parties toward the enactment of such legislation.
Such legislation would add a measure of fairness to the
enforcement process and would remove disincentives to engage
in voluntary audits, compliance management, and disclosure
activities.
By eliminating some of the inequities and disincentives in
the current enforcement scheme, we believe Congress will
cause a higher level of voluntary compliance by American
business with concomitant benefit to our environment.
Very truly yours,
Norm Smith.
____

Georgia-Pacific Corp.,

Washington, DC, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: Georgia-Pacific Corporation is very
supportive of the need for the Congress to enact an
environmental audit protection bill. The State of Oregon has
passed legislation to afford legal protection to the
environmental audits we perform in our manufacturing
facilities to help us in compliance with a host of
environmental permits (air, water, solid waste, hazardous
materials).
The corporation is moving aggressively to increase the
audit program at every location to accomplish not only basic
compliance, but more importantly to elevate the importance of
environmental performance in the daily operation of our mills
and plants. We are ranking environmental performance on an
equal status of employee safety.
The potential misuse of this information in third party
litigation is a major problem. We have experienced such
misuse in Mississippi in connection with our water discharge
permit at paper mill. If public policy demands proper
compliance and monitoring, it should encourage--not
discourage--more auditing by companies. We have been
disappointed by EPA's own policy on environmental audits that
discourages auditing.
A number of States have enacted or are considering
legislation this year. However, this public policy should be
uniform nationwide. Thus, G-P's strong support for audit
protection legislation. G-P management in Oregon has advised
us of your interest in leading such legislation. Because of
your knowledge of our company in the State and your
responsible record on environmental issues, we strongly urge
you to take a leadership role on environmental audits.
I can assure you that should you introduce legislation to
afford appropriate protection to environmental audits, G-P
will not only be appreciative of this effort, but we will
work very hard in support of your effort with other Senators.
Sincerely,
John M. Turner,
Vice President.
____

The GEON Co.,

Cleveland, OH, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: The Geon Co. strongly supports the
Voluntary Environmental Audit Protection Act, which we
understand will be introduced tomorrow. This Act will benefit
not only responsible members of the regulated community, but
the public as well, by encouraging companies to implement
strong and effective environmental auditing and oversight
programs.
It has been our experience that most potential compliance
problems are discovered and corrected through voluntary self-
audits. The fear of discouraging past compliance problems,
especially when they may give rise to huge potential civil
penalties, is a very real disincentive to proactive
compliance programs that rely on internal and external self-
audits.
Although the U.S. EPA has claimed that voluntary self-
disclosure issues can be addressed as a part of its
enforcement policies and that legislation is unnecessary, we
have, unfortunately, first-hand current experience that the
EPA has been woefully remiss in adopting or even pursuing any
enforcement policies that affect the purpose to which your
bill is addressed, and those policies the EPA has recently
proposed would fall far short of their state objectives.
[[Page S4269]] We believe that current EPA enforcement
policies often single out for punishment environmentally
responsible proactive companies, which are thereby placed at
a competitive disadvantage with their less proactive
competitors.
Sincerely,

William F. Patient,

Chairman of the Board,
President and Chief Executive Officer.
____

Polaroid Corp.

Cambridge, MA, March 15, 1995.
Re support for environmental audit privilege and voluntary
disclosure legislation; The Voluntary Environmental Audit
Protection Act.

Hon. Mark Hatfield,
US Senate, Hart Senate Office Building, Washington, DC.
Hon. Senator Hatfield: Polaroid Corporation wishes to
express its support for legislation that you and Senator
Brown intend to introduce which will allow for a Federal
Environmental Audit Privilege and for Voluntary Disclosure
Protection. Polaroid is a worldwide manufacturer of various
Imaging Products, and the majority of its manufacturing
facilities are located in the Commonwealth of Massachusetts.
Polaroid believes that the fundamental policy
justifications underlying the proposed ``Voluntary
Environmental Audit Protection Act'' are consistent with this
nation's laudable goals of encouraging higher levels of
responsible environmental protection rather than simply
continuing the promotion of ``command and control'' style
environmental regulations. The substantial and measurable
levels of environmental improvement that have been achieved
in the United States over the past twenty-five years are, in
large part, the result of the combined actions of the US
Congress, the administrative agencies of the Executive, and
American Industry. But new, more positive and cost effective
incentives than those needed in the 1970's and 80's are
required to enhance environmental protection and improve
environmental performance in the 1990's. Polaroid supports
this legislation and your actions involved in introducing and
overseeing its passage.
Sincerely,

Harry Fatkin,

Division Vice President,
Health, Safety & Environmental Affairs.
____

Environmental Auditing Roundtable,

North Ridgeville, OH, March 16, 1995.
Hon. Mark Hatfield,
US Senate, Hart Senate Office Building, Washington, DC.
Dear Chairman hatfield: Following are the views of the
Environmental Audit Roundtable on the ``Voluntary
Environmental Audit Protection Act'' that you and Senator
Brown are introducing. The intent of the bill is to encourage
environmental auditing for compliance and effective
management systems to ensure compliance and continual
improvement.
The EAR, representing over 800 members, is the largest body
of professional Environmental Health and Safety Auditors in
the world.
As a general rule, our organization should be silent on
activity that are external to the auditing process unless
those activities promotes improvement in audit quality. We
believe the concept of improving disclosure through a
privilige mechanism will improve the quality of the audit
process in the followng ways:
1. Removing the fear of penalty when non compliance is
inadvertent will promote disclosure between the auditors and
the audited entity.
2. The concept will encourage implementation of
Environmental Audits.
3. The concept will facilitate the flow of information from
the regulated community to the agency with regard to
understanding and implementing environmental regulation. For
small and medium size enterprises that do not have large EH&S
staffs it is essential that an open dialogue with state and
federal agencies be promoted to assist in understanding and
implementing regulations. In addition, this
exchange of information will provide valuable feedback on
ways in which to make the regulation more understandable
and efficient. Under our current regime of command and
control there is little or no information flow from the
regulated community to the agencies because the
consequences are unpredictable.
4. The International Standards Organization (ISO) will be
issuing a series of standards in early 1996 that could
revolutionize the approach for managing and improving
environment performance. Linkage between our national
regulatory scheme and this international effort will depend
on the agencies ability to communicate with its regulated
customers. The concept of disclosure will elevate the level
of communication.
In conclusion EAR believes that the legislation will
promote environmental dialogue at all levels and improve the
quality of the audit process. We believe the current
regulatory mechanism of police and fine should be replaced
with a cooperative program of disclose and correct.
Legislation that promotes information exchange between state
and federal agencies and their regulated customers creates
fertile fields for innovative solutions and continual
improvement.
Regards,
Ronald F. Black.
____

Philips Electronics Corp.,

Washington, DC, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Dear Senator Hatfield: Philips Electronics is pleased to
support your legislation known as the Voluntary Environmental
Audit Protection Act. This legislation makes eminent sense in
that it removes the threat of unreasonable penalty for an
action of good faith to correct certain situations arising
from noncompliance with environmental law. Philips
Electronics and the vast majority of U.S. manufacturers
strive to be good corporate citizens with respect to
environmental and other laws. Your legislation will create an
enforcement atmosphere that will encourage such good
corporate citizenry. We thank you for your leadership.
Philips Electronics North America Corporation employs
nearly 30,000 Americans engaged in the manufacture and sale
of consumer and industrial electronics products and
electronic components under the brand names of Philips,
Magnavox and Norelco. Annual sales of more than $6 billion
rank Philips among the top 100 U.S. manufacturers.
Sincerely,
Randy Moorhead.
____

Collier, Shannon, Rill & Scott,

Washington, DC, March 15, 1995.
Re Senator Hatfield's and Senator Brown's audit and
disclosure protection legislation.

Hon. Mark Hatfield,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Hatfield: On behalf of the Coalition for
Improved Environmental Audits (``CIEA''), we write in support
of your proposed legislation for environmental audit and
voluntary disclosure protection. We applaud your efforts in
conjunction with Senator Brown to introduce this legislation
into the Senate. CIEA was formed to support legislative
initiatives for the protection of environmental audits and
voluntary disclosures; therefore, we wholly support your
efforts to establish a qualified self-examination privilege
that helps encourage companies to conduct comprehensive
audits by reducing the risk that the audits will be used
against them in enforcement proceedings. CIEA membership
includes corporations and trade associations committed to
establishing useful and effective environmental auditing
programs. CIEA member companies own and operate facilities
throughout the United States and welcome your proposed
legislation to encourage and protect comprehensive
environmental audits at their facilities.
CIEA supports your efforts to introduce legislation that
establishes a federal environmental audit privilege and
immunity for voluntary disclosures. The privilege will
encourage corporations to establish useful and effective
environmental auditing programs. The conditional immunity
described in Section 3803 of the proposed legislation will
encourage corporations to conduct candid assessments and
timely remediation of any noncompliance with environmental
laws. Recognition of a qualified environmental audit
privilege and immunity provision will enhance compliance with
environmental regulations without harming the ability of
enforcement officials to prosecute significant wrongdoers.
U.S. industry can rely on a commitment made through
legislation. Therefore, your federal legislation for the
environmental audit privilege and voluntary disclosure
protection allows U.S. industry to conduct environmental
audits without the fear that the audit will end up being used
against them. Now that federal legislation for the
environmental audit privilege is moving forward (and seven
States have enacted similar statutes) EPA should establish
policy that reinforces this legislation.
The CIEA membership appreciates the opportunity to support
your forthcoming legislation for the environmental audit
privilege and voluntary disclosure immunity. We believe a
reasoned discussion of the issues of environmental audit
privileges will result in the passage of your bill, which
will encourage and improve corporate environmental
compliance.
Sincerely,
John L. Wittenborn,
Stephanie Siegel,
Counsel to the Coalition
for Improved Environmental Audits.
____

The BFGoodrich Co.,

Akron, OH, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Dear Chairman Hatfield: The BFGoodrich Company wishes to
express its support for legislation that you and Senator
Brown are introducing--``The Voluntary Environmental Audit
Protection Act.''
The BFGoodrich Company provides aircraft systems,
components and services and manufactures a wide range of
specialty chemicals. BFGoodrich manufactures in seven
countries and operates an international network of sales
offices and aircraft service centers with our Corporate
headquarters in Akron, Ohio.
Because of the Company's international presence, we are
exposed to a wide variety of environment, health and safety
requirements. In order to ensure compliance with these
requirements, our Company conducts environment, health and
safety audits worldwide.
[[Page S4270]] Only in the United States do we have a
system where responsibly managed organizations suffer severe
punishment for maintaining a review process to ensure
compliance. Our current system is subject to the whim of U.S.
EPA interpretations in the different regions of our nation.
This does not allow for certainty in interpretation or
fairness in enforcement.
Your proposed legislation, along with the legislation
already enacted in those states that have chosen a new
approach for the regulated community, will establish a
mechanism where those who are sincere in trying to improve
the environment will benefit--while those who continue to
disregard good practices will be subject to the full
enforcement of the law.
Your legislation is forward-looking and compatible with
international programs. It will encourage our government
agencies to focus their efforts on those who truly require
oversight while encouraging greater disclosure of information
and communications from the regulated community. Moreover, it
will provide regulatory agencies with information to improve
programs and better measure performance.
BFGoodrich supports your proposed legislation and actions
aimed at introducing and overseeing its passage.
Sincerely,

Jon V. Heider,

Executive Vice President
and General Counsel.
____

Corporate Environmental

Enforcement Council,

Alexandria, VA, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Dear Chairman Hatfield: On behalf of the members of the
Corporate Environmental Enforcement Council (CEEC), I want to
express to your support for legislation that you and Senator
Hank Brown are introducing, ``The Voluntary Environmental
Audit Protection Act.''
CEEC is an organization of 18 member companies comprised of
corporate counsel and management from a wide range of
industrial sectors that focuses exclusively on civil and
criminal environmental enforcement public policy issues.
CEEC's membership includes: AT&T, The BFGoodrich Company,
Caterpillar, Inc., Coors Brewing Company, DuPont, Eli Lilly
and Company, Hoechst Celanese Corporation, ITT Corporation,
Elf Atochem, North America, Inc. Kaiser Aluminum & Chemical
Corporation, Kohler Company, 3M, Owens Corning, Pfizer, Inc.,
Polaroid Corporation, Procter and Gamble, Textron and
Weyerhaeuser Company.
We commend you and Senator Brown for this legislation
because it is constructive environmental legislation. You
have recognized that environmental audits are valuable
management tools for improving environmental compliance, that
they are good for the environment, and that they will enhance
all of our collective efforts to improve environmental
performance.
Mr. Chairman, we thank you and Senator Brown, and your
staffs, for developing this important legislation and stand
ready to work with you to see it become law.
Sincerely,
Carl A. Mattia,
Chairman of the Board; Vice President, Environment,
Health and Safety, The BFGoodrich Co.
____

Coors Brewing Co.,

Washington, DC, March 15, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Dear Senator Hatfield: We are pleased to support you and
Senator Brown in your efforts to enact the Environmental
Audit Disclosure Protection Act.
Environmental audits are proven management tools. They
provide the opportunity for companies and public facility
operators to take a close critical look at their operations,
determine compliance with the thousands of complicated, often
confusing and overlapping environmental regulations and
statutes now on the books and fix any problem discovered. In
Colorado with the passage of a bill in 1994 that is very
similar to yours, we are creating a climate of some
certainty, wherein a company or facility operator knows what
kind of enforcement treatment to expect before investing in
expensive and time consuming environmental audits and then
disclosing results to state regulatory authorities. We
strongly believe this certainty, albeit limited, goes a long
way toward promoting self-initiated audits.
However, that same certainty must be applied at the Federal
level to allow the Colorado statute, and others like it, to
be fully effective and widely utilized. That is why your bill
is so important. The debate over proper Federal legal
controls over the extent, form and utilization of voluntary
self audits and the use of the information obtained has been
a matter of controversy among regulators in Washington who
hold unchallenged power and control under the current command
and control system.
Stanley Legro, EPA's Chief Enforcement official from 1975-
77, wrote an interesting article entitled ``Self Audits and
EPA Enforcement'' in the Environmental Forum, December 1994.
The article follows this letter. To paraphrase Mr. Legro, he
says in order to reach the next plateau to improving the
quality of the environment there must be a shift from the
current enforcement mentality to providing incentives to
increase compliance. In moving to that next plateau Mr. Legro
says he ``favors maximizing incentives for voluntary self
audits.''
We believe that your bill as drafted embraces Mr. Legro's
thoughts by striking an appropriate and constructive balance
between many of the relevant competing interests involved.
The bill provides protection for responsible entities against
being punished for doing the right thing without impending
enforcement against those who flaunt environmental laws. It
is truly refreshing without impeding enforcement against
those who flaunt environmental laws. It is truly refreshing
to see legislation that benefits the environment, benefits
responsible industry, protects against abuses, imposes no
costly mandates and doesn't spend a dime of taxpayers' money.
Indeed, it may even reduce the need for, and expense of,
certain enforcement resources.
Coors looks forward to assisting you and Senator Brown to
secure early enactment of this legislation.
Respectfully yours,

Alan R. Timothy,

Director,
Federal Government Affairs.
____

[From the Environmental Forum, December 1994]

Self Audits and EPA Enforcement

(By Stanley W. Legro)

The high degree of interest in the public meeting held by
EPA on auditing last summer is strong evidence of the
continuing importance of this vital subject. Indeed, it may
be fair to say that the subject of auditing necessarily
raises the most fundamental issue affecting the EPA: What is
the role of enforcement in achieving the agency's primary
purpose for being?
The debate about voluntary self-audits and the use of the
information obtained has been ongoing since the earliest days
of the EPA. It was a hotly debated subject during my tenure
as the agency's chief enforcement official from 1975-77. It
continues to be a hotly debated issue today. Its long tenure
and the agency's inability to come to closure on a decision
are to a large extent attributable to the difficult policy
choices involved.
The fundamental issue is whether the EPA's primary purpose
to improve the quality of the environment is best achieved by
providing positive incentives for voluntary compliance and
remediation or by punishing, for past actions or omissions,
those who have failed to meet their responsibilities to
preserve and maintain the quality of the environment. These
are not easily separable.
During the nascent stages of the agency, strong enforcement
actions and substantial punishments for violators were
necessary to convince both the public and those in regulated
industries that environmental laws were to be taken seriously
and that failure to comply could have serious consequences.
During my tenure, there was still a substantial questioning
among many in the regulated communities as to whether these
environmental requirements were a passing fad that might be
repealed by the next Congress and whether the EPA really
meant business. An emphasis on vigorous enforcement was vital
to send an unequivocal answer to those questions.
With the hindsight of time, I am convinced that the
decision made then was the right one, emphasis on vigorous
enforcement to send the clear message that or country had
made a decision to improve the quality of the environment,
and that those who tried to thwart the effort would face
severe consequences. While our country still has much left to
do, the progress to date is proof of the wisdom of choosing
robust enforcement.
Today, we are faced with a somewhat different situation
which, I believe, calls for a different emphasis. One should
not gainsay the vital continuing role of vigorous
enforcement. We must begin by leaving no doubt whatsoever
that anyone who intentionally or recklessly harms or
endangers the quality of our environment, no matter how long
after the fact the transgression is discovered, should--
indeed must--be subject to the full force of the law.
Nevertheless, now there is a high degree of awareness of
the existence of environmental laws and regulations in
general, as well as the specific requirements for compliance,
among the regulated communities as well as among the public.
There is relatively little incidence of knowing or
intentional actions or omissions which harm or degrade the
environment. From my present perspective, a much bigger
barrier to continuing substantial progress is awareness of
environmental problems on the ground so that appropriate
remedial actions can be promptly commenced and effectively
accomplished in a timely manner.
This brings us to environmental audits. What is the best
balance between the carrot and the stick to achieve the best
overall results? I recommend that today, while the stick
should always remain within easy reach, the emphasis must be
shifted to providing incentives for broad scale voluntary
compliance. In my opinion, the emphasis today should be on
those measures that will encourage environmental audits and
the benefits which they can produce in the real world.
[[Page S4271]] Accordingly, I suggest that the results of
environmental audits should not be used by the EPA (or state
or local) enforcement authorities to seek penalties for any
past acts or omissions unless it is shown that such acts or
omissions were intentional with knowledge that they would or
were likely to result in serious harm to the environment or
were reckless.
At the same time, I recommend that the results of
environmental audits be provided to the agency, and that they
serve as a benchmark for future remediation and correction of
practices, processes, and existing pollution which they have
revealed. In other words, prospectively the results of
environmental audits will be used to set a high standard, but
one that is fair because it offers an opportunity to take
those actions which would avoid or alleviate the
environmental harm.
If the EPA discovers a violation by its own inspection or
as a result of information received from a third party, I
believe that it should pursue vigorously all remedies
available. However, if the discovery is a result of a
voluntary audit and is timely reported first to the EPA by
the source, policy considerations weigh in favor of
encouraging voluntary self audits and prompt follow-up
corrective actions.
We also need to consider the nature and extent of
privilege, the right to confidentiality for the results of
environmental audits. Some jurisdictions have adopted this
approach. I have researched and considered the issue at
length. It is my conclusion that the use of a privilege
approach by the EPA is an unsatisfactory solution which does
not protect the environment nor provide maximum incentive to
initiate self audits. (However, it is vital to have a
privilege from disclosure to private parties and to any state
or local officials who refuse to join in the recommended EPA
approach.)
From the perspective of the EPA, the purpose of this, as
any other policy, is to improve the environment. The agency
seeks to provide incentives for self audits to discover and
to commence prompt and effective remedial measures. The self
audit is merely a means; without assuring that the audit
results are put to use, the policy fails. The remedial
measures are the end. A privilege approach gives no assurance
that problems discovered will result in remedial actions
taken. Indeed, the privilege approach may actually discourage
prompt remedial measures in many cases.
From the perspective of the corporate executive, the
privilege approach is also unsatisfactory for at least two
reasons. First, some information resulting from the audit is
likely to be subject to mandatory disclosure under certain
environmental laws and securities laws. Such partial
disclosure will often lead to investigations or audits that
independently uncover most, if not all, of the information
for which the privilege is claimed. Second, and even more
important from the point of view of a corporate official
deciding whether to undertake a voluntary self audit, a
privilege does nothing to eliminate liability for past
violations; a self audit increases the availability of
evidence to authorities to prove those violations. For these
reasons, a privilege approach would not be the best policy
for the EPA.
In sum, in order to maximize the incentives to conduct self
audits and to apply the information obtained to realize the
greatest environmental improvement, I recommend the following
commitment by the agency's enforcement authorities:
The EPA will continue to apply the full penalties for past
violations discovered by EPA inspections or by a means other
than as a result of a voluntary self audit and timely
reporting by the source. Penalties will not be assessed for
past violations discovered by a voluntary self audit and
voluntarily reported to EPA, unless the past violation was
intentional or resulted from reckless conduct. Last, once a
violation has been discovered and reported, the source will
be required promptly to take prospective actions necessary to
prevent a continuance or recurrence of the problem and to
commence appropriate remedial measures to protect and restore
the quality of the environment.
All policy choices must be measured against the standard of
achieving the greatest amount of improvement in our
environmental quality. Today, I believe the balance should
favor maximizing the incentives for voluntary self audits.
Voluntary environmental self audits, reporting past
violations and pollution which requires remedial actions
discovered by those audits to the EPA, and undertaking prompt
and effective remedial measures offer the best opportunity to
achieve our national policy objectives in the shortest period
of time. This is the right policy choice for the EPA today.
____

American Forest &

Paper Association,

Washington, DC, March 20, 1995.
Hon. Mark Hatfield,
Hart Senate Office Building,
Washington, DC.
Dear Senator Hatfield: I want to express the support of the
American Forest & Paper Association (AF&PA) for the efforts
you and Senator Brown have undertaken with regard to granting
a limited privilege to internal, voluntary environmental
audits.
AF&PA is the major trade association representing the
forest products industry in this country. We account for 7
percent of all U.S. manufacturing output and directly employ
1.6 million workers in the manufacture of forest and paper
products and the recovery and recycling of paper. We
contribute $49 billion in direct payrolls to local economies
and rank among the top ten employers in 46 of the 50 states.
AF&PA member companies are regulated under a wide range of
environmental programs, including the Federal Water Pollution
Control Act, the Clean Air Act, and the Resource Conservation
and Recovery Act. The Association strongly supports public
policies that will serve to increase compliance with
environmental laws by granting a limited protection for
information developed by companies through voluntary,
internal environmental audit programs. Some states, including
Oregon and Colorado, have already enacted statutes providing
such protections, and we believe the positive experience
gained in these instances bolsters the case for a similar
statute at the Federal level.
Accordingly, AF&PA strongly supports the leadership you and
Senator Brown have shown in this field. Although we have not
had the opportunity to analyze your draft legislation in
detail, we believe that it will help to lay the foundation
for a necessary Federal debate. As a matter of policy, such
audits help to increase compliance with environmental
safeguards, and should be encouraged. When our analysis of
your proposal is completed, AF&PA will share that review with
you and your staff. We look forward to working with you to
expedite consideration of this important issue.
Sincerely,

B. Roland McElroy,

Vice President,
Government Affairs.
____

Elf Atochem North America, Inc.,

Arlington, VA, March 21, 1995.
Hon. Mark Hatfield,
U.S. Senate,
Washington, DC.
Subject: ``Voluntary Environmental Audit Protection Act'' to
amend Title 28 of the United States Code.
Dear Senator Hatfield: On behalf of Elf Atochem North
America, Incorporated, I am writing to express our strong
support for the proposed ``Voluntary Environmental Audit
Protection Act'' introduced by both you and Senator Hank
Brown. Our company has developed a strong audit program which
will be further strengthened with passage of this proposed
legislation. The ability to move rapidly to fix problems and
share concerns throughout the company, without the legal
concerns that presently overshadow any audit program, will be
greatly enhanced.
We are aware of the U.S. Environmental Protection Agency's
(EPA) effort to amend its current audit policy. However, in
our view EPA still takes the position that ``no good deed
goes unpunished,'' by providing for penalties when a company
voluntarily discloses violations that would not have been
found but for the use of good environmental management
through auditing.
For some time, our management has been actively involved in
the conceptual issues concerning auditing and environmental
management. Frank Friedman, Elf Atochem N.A. Senior Vice-
President for Health, Environment and Safety, is author of
the leading book on environmental management, ``A Practical
Guide to Environmental Management'' (Fifth Edition 1995)
published by the Environmental Law Institute. At EPA's
request, Mr. Friedman was the lead-off speaker at the
Agency's review of its audit policy in July 1994. In his
testimony, Mr. Friedman counseled, as did many others, on the
need ``for EPA to develop other indicators of enforcement
success rather than just on the basis of the number of cases
brought''.
There is no question that EPA should retain a strong
enforcement program, but it is equally important that
enforcement be put in context, namely, as a vehicle for
assuring environmental compliance. If compliance is achieved
voluntarily; if problems are disclosed and dealt with more
rapidly, and more companies develop in-depth audit programs,
then EPA's enforcement goals are readily achieved.
We also have, at this time, one important comment on the
proposed legislation. Proposed Section 3803(b) limits
voluntary disclosure if a company has ``committed repeated
violations''. We assume this language applies to companies
operating a single ``facility''. If not, such a provision
disadvantages companies operating multiple facilities with
respect to the audit disclosure protections provided in the
proposed bill. In such cases, if a violation has occurred at
one facility and a company wants to make certain that this
will not occur elsewhere it will be penalized. We are sure
this is not the intent of the bill and it should be
clarified.
Again, we wish to commend you and your staff for the
careful and thoughtful way in which this proposed legislation
was crafted. The proposed bill recognizes that if companies
have strong, voluntary auditing programs in place, compliance
will follow. Because this legislation represents sound public
policy that will advance protection of human health and the
environment, Elf Atochem (as will, we are certain, other
members of the regulated community) is committed to
supporting passage of this legislation.
Sincerely,
Charles A. Kitchen,
Director, Government Relations.
____

[[Page S4272]] Environmental Protection Agency,

Washington, DC, March 1, 1995.
Hon. Joel Hefley,
U.S. House of Representatives,
Washington, DC.
Dear Congressman Hefley: I am writing to express EPA's
opposition to the environmental audit privilege/penalty
immunity provisions currently contained in H.R. 1047. Our
concerns include the following:
1. Environmental damage or even disasters caused by
recklessness or gross negligence would go unpunished under
certain provisions. Specifically, regardless of the harm
inflicted on people or the environment, H.R. 1047 would
eliminate all punishment for certain criminal and other
violations if they are ``voluntarily'' disclosed. As we read
H.R. 1047, a ``voluntary disclosure,'' for which total
immunity from civil and criminal penalties is granted,
includes information that is required to be reported--
including notification of emergencies as well as routine
reports, such as Discharge Monitoring Reports under the Clean
Water Act. Truly ``voluntary'' disclosures should be
encouraged, but not by granting blanket immunity for criminal
and other harmful acts.
2. The bill encourages litigation that will further burden
our already taxed judicial system. Specifically, the bill
uses many vague terms for lawyers to argue over. For example,
H.R. 1047 would allow violators to argue that many routine
business activities are ``compliance evaluations'' simply to
evade disclosure. This kind of litigation will drain both
private and government resources and in some cases prevent
quick action to address environmental emergencies--despite
the exceptions in the bill.
3. The evidentiary privilege in this bill appears to go far
beyond the attorney-client and work product privileges by
potentially shielding from the government and the public
virtually all factual information about environmental
noncompliance--including facts underlying a self-evaluation
that might be crucial in holding violators accountable for
their actions. It appears that the privilege would apply to
much more than just audit reports and over documents related
to self-evaluations.
4. It makes sense to give substantial penalty reductions to
those who come forward, disclose their violations, and
promptly correct them. The penalty immunity provision in the
bill, however, gives violators an unfair economic advantage
over their law-abiding competitors because it does not allow
federal and state governments to recover from the violator
even the economic benefit they gained from their
noncompliance.
As you may know, Administrator Browner asked the Office of
Enforcement and Compliance Assurance last May to reassess
EPA's environmental auditing policy to see if we needed new
incentives to encourage voluntary disclosures and prompt
correction of violations uncovered in environmental audits.
Our review has been open and inclusive. In July 1994, and
again in January 1995, we held public meetings, and an Agency
auditing workgroup has met and continues to work with key
stakeholders. We have involved industry, trade groups, state
environmental commissions and attorneys general's offices,
district attorneys' offices, and environmental groups. We
have identified approaches that seem to have broad support
among these groups.
Consistent with prior correspondence between several House
members and Administrator Browner, we expect to announce the
results of our reassessment process shortly. The issues
surrounding environmental auditing, voluntary self-
evaluations and voluntary disclosure are complex, and we are
eager to share what we have learned with the Congress in
hearings. We think it is crucial that the House take the time
to hold appropriate hearings on the full range of views on
these issues, and to consider alternative approaches that
would have the support of a wide range of stakeholders.
Unfortunately, H.R. 1047 falls far short of that mark.
I look forward to working with you and other members on
these very important and complex issues.
Sincerely,
Steven A. Herman,
Assistant Administrator.
____

House of Representatives,

Washington, DC, March 20, 1995.
Mr. Steven A. Herman,
Assistant Administrator, U.S. Environmental Protection
Agency, Washington, DC.
Dear Mr. Herman: I am writing in response to your letter of
March 1, 1995. While I appreciate the Office of Enforcement
and Compliance Assurance taking the time to comment on H.R.
1047, I am disappointed that your letter merely recasts the
unsubstantiated objections that the Environmental Protection
Agency routinely has made for many years.
Let me respond to each of your specific concerns and take
the opportunity to explain why protections for legitimate
environmental audits and voluntary disclosures are critical
for the public health and the environment.
1. You argue that the voluntary disclosure provisions would
grant blanket immunity from criminal penalties and would
include information that is required to be reported under
environmental laws, such as Discharge Monitoring Reports,
etc.
H.R. 1047 does not grant blanket immunity from prosecution.
In fact, there is no immunity from prosecution, but simply
immunity from administrative, civil and criminal penalties.
Further, the immunity is not a ``blanket'' immunity; there
are two important limitations. First, the presumption against
imposition of penalties is a rebuttable presumption. If the
presumption can be rebutted by the EPA (i.e., notice was not
given promptly, the information was not learned as a result
of an environmental audit or the problem is not corrected)
then penalties can be assessed. Second, if a regulated entity
has demonstrated a pattern of disregard for environmental
laws, they are not eligible for penalty immunity for
voluntary disclosures. In addition, information that is
voluntarily disclosed that may be required to be reported
under an environmental law would only be subject to the
immunity if it was learned as a result of performing the
environmental audit. This is a significant limitation.
2. Your letter states that the legislation will encourage
litigation because it is vague and would allow violators to
argue that many routine business activities are compliance
evaluations to evade disclosure. You do not believe that the
exceptions in the bill will prevent such evasion and,
consequently, such litigation.
H.R. 1047 does not privilege any reports or data that are
already required to be compiled or reported. Nor does it
restrict EPA's ability to request additional data. The
definition of a voluntary environmental self-evaluation is
clear in the bill. To qualify, the evaluation must be
initiated and carried out by the person for the purpose of
determining compliance with environmental laws. The EPA
itself has defined environmental auditing in its 1986 policy
statement in broader terms. Thus, in this legislation, there
are no vague terms behind which persons can hide to evade
disclosure of anything that is already required to be
reported. It is disingenuous for the EPA to suggest increased
litigation as a reason to oppose this bill, when many EPA
programs have just that effect.
3. You argue that the evidentiary privilege goes beyond the
common law attorney-client and work product privileges.
While H.R. 1047 does provide a more expanded privilege than
the attorney-client privilege, it does not protect the facts
that are required to be provided to the EPA. The EPA still
has complete access to the date and reports as it had before.
Moreover, the EPA can still obtain additional information
through investigations, information requests, sampling and
monitoring, etc. Facts available to the EPA in documents
required to be maintained by entities, reports that must be
provided to the EPA and information obtained from independent
sources are all still available to the EPA under H.R. 1047.
Presumably, these are the facts the EPA believes are
necessary to ensure compliance with environmental laws.
4. Finally, you argue that the penalty immunity in the
legislation gives violators an unfair economic advantage over
their law-abiding competitors because it does not allow
federal and state regulators to recover the economic benefit
gained from noncompliance. Your concern that a violator will
derive an economic benefit is misplaced.
Under H.R. 1047, as soon as a person voluntarily discloses
a violation, that person must promptly achieve compliance in
order to receive penalty immunity. These steps include
installing whatever equipment may be required. In cases where
there are environmentally irresponsible companies that have
avoided installing the requisite equipment, any economic
benefit that they may have derived will surely be cancelled
out--and then some--by having to quickly retrofit their
plants to come into compliance. It will likely cost them
significantly more to come into compliance at a later date
than it did for their competitors who designed compliant
systems from the outset. Further, how would the EPA propose
to determine any such economic benefit while assuring the
certainty required for companies to utilize
the voluntary disclosure provisions? I believe this would be
terribly difficult to predict with certainty.
In addition to the specific responses above, several other
points must be considered regarding H.R. 1047. Administrator
Browner has emphasized that ``enforcement is not an end in
itself.'' She has noted that the EPA must change its ways;
that the agency must do everything it can to focus on
compliance, and that obstacles to compliance must be
eliminated. H.R. 1047 does just that.
As the EPA recognizes, an environmental enforcement policy
should not discourage compliance. Unfortunately, current EPA
and Department of Justice policies do precisely that. Under
the current enforcement scheme, responsible entities that
work to achieve environmental goals find themselves exposed
to greater liability than those in the regulated community
who do less or do nothing at all.
The result of all this is that responsible members of the
regulated community are discouraged from conducting self-
evaluations and from voluntarily disclosing violations
because of the tremendous risk of civil and criminal
enforcement. This negatively impacts compliance which, in
turn, negatively impacts public health and the environment.
In the end, the environment is the loser.
Since the EPA's goal is compliance, not punishment, as
stated by the president last Thursday in announcing his
regulatory reform package, then surely it makes sense to
[[Page S4273]] encourage compliance. This view is not without precedent
at the federal level. Other federal agencies have recognized the need
to encourage compliance, and have done so by implementing protections
similar to those in H.R. 1047. The Federal Aviation Administration's
policy serves as a perfect example that compliance should come first.
The FAA policy is designed to provide incentives for
deficiencies to be identified and corrected by the companies
themselves, rather than risk air safety by awaiting the
results of an FAA inspection. In implementing the FAA policy,
agency officials emphasized that ``aviation safety is best
preserved by incentives . . . to identify and correct their
own instances of noncompliance and invest more resources in
efforts to preclude recurrence, rather than paying
penalties''. Surely, environmental protection is at least as
important as aviation safety and, therefore, deserves the
same incentives to enhance compliance.
H.R. 1047 is critical because it provides incentives to
maximize environmental compliance and allocates resources to
compliance, not enforcement. I reiterate that intentional
violators cannot benefit from the legislation. And while
responsible members of the regulated community will indeed
benefit in terms of receiving much needed protections and
certainty, the real beneficiary of H.R. 1047 is the
environment.
I look forward to your participation in this debate as the
legislative process moves forward.
Sincerely,
Joel Hefley,
Member of Congress.<bullet>
______

By Mr. STEVENS:
S. 583. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation and coastwise trade endorsement for two
vessels; to the Committee on Commerce, Science, and Transportation.

VESSEL DOCUMENTATION LEGISLATION

<bullet> Mr. STEVENS. Mr. President, today I am introducing a bill to
provide certificates of documentation for the vessels Resolution and
Perserverance.
The hovercraft Resolution, Serial Number 77NS8701, and Perserverance,
Serial Number 77NS8901, were built in 1983 and 1985, respectively, by
British Hovercraft Corp. Limited in East Cowes, Isle of Wight, England.
They are 70 feet in length, and have a maximum operating weight of 32
tons.
The craft were sold to Hovertravel, a United Kingdom company, which
operated the craft in a passenger ferry operation from the Isle of
Wight, England.
The two hovercraft were sold by Hovertravel to the U.S. Navy in 1986
Resolution, and 1989 Perserverance.
They were modified by Textron in Panama City, FL to be used as
training craft for U.S. Navy personnel to learn to operate hovercraft.
After being declared surplus by the U.S. Navy, ownership of the
vessels now resides with Champion Constructors, Inc., a subsidiary of
Cook Inlet Region, Inc. of Anchorage, AK.
Because the vessels were built in England, they are undocumented, and
require a waiver of the Jones Act to be operated in the U.S. coastwise
trade.
Champion Constructors, Inc. intends for the vessels to be used
between points in Alaska transporting cargo and passengers.
It is my understanding that no other hovercraft of this type and size
exist.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the record, as follows:

S. 583

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
notwithstanding sections 12106, 12107, and 12108 of title 46,
United States Code, and section 27 of the Merchant Marine
Act, 1920 (46 App. U.S.C. 883), as applicable on the date of
enactment of this Act, the Secretary of Transportation may
issue a certificate of documentation with a coastwise
endorsement for each of the vessels RESOLUTION (Serial Number
77NS8701) and PERSERVERANCE (Serial Number 77NS8901).<bullet>
______

By Mr. ROBB (for himself, Mr. Craig, Mr. Akaka, Mr. Harkin, Mr.
Rockefeller, Mr. Lugar, Mr. DeWine, Mr. Stevens, Mr. Cochran,
Mr. Wellstone, Mr. Ford, and Mr. Kerry):
S. 584. A bill to authorize the award of the Purple Heart to persons
who were prisoners of war on or before April 25, 1962; to the Committee
on Armed Services.

PURPLE HEART LEGISLATION

<bullet> Mr. ROBB. Madame President, I introduce legislation which
will correct an inequity that unfairly denies due recognition to some
of America's worthiest veterans.
Specifically, this bill would entitle prisoners of war from War World
I, World War II, and Korea to receive the Purple Heart Medal for wounds
which were sustained while being captured or while in captivity.
Currently, only those veterans who suffer wounds while being captured
or in captivity after April 25, 1962, are eligible for the Purple Heart
Medal.
While we might debate how best to recognize their sacrifice and
hardship, one thing is abundantly clear; we should not differentiate
between prisoners of war based solely on the date of the war in which
they were captured.
Madam President, as a Vietnam veteran who has had the privilege of
leading marines in combat, and as a member of the Senate's Select
Committee on POW/MIA Affairs, I am acutely aware of the hardships
endured by service personnel who have been captured by hostile military
forces. All of these servicemen have suffered mental and physical
abuse, and many were tortured, beaten and starved while in confinement.
Our prisoners of war from World War I, World War II, and Korea
suffered various wounds and innumerable atrocities at the hands of
their captors. Many continue to suffer from physical difficulties
associated with their capture and confinement. The Purple Heart Medal
would serve to put their service and sacrifice on par with the veterans
of other wars, and will remind Americans of their sacrifices. It seems
a fitting and overdue recognition.
Madam President, I ask unanimous consent that the text of the bill,
the supporting resolutions of the Military Order of the Purple Heart
and the Disabled American Veterans, and the letters of support from the
DAV, American Legion, AMVETS, and the Jewish War Veterans of the United
States, be printed in the Record. I would also like to thank my
colleagues, Senators Akaka, Cochran, Craig, DeWine, Ford, Harkin,
Kerry, Lugar, Rockefeller, Stevens, and Wellstone for joining me as
original cosponsors of this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 584

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. AUTHORITY TO AWARD PURPLE HEART.

(a) Authority To Make Award.--(1) Subject to paragraph (2),
the President may award the Purple Heart to a person
described in subsection (b) who was taken prisoner and held
captive before April 25, 1962.
(2)(A) Except as provided in subparagraph (B), an award of
the Purple Heart under paragraph (1) may be made only in
accordance with the standards in effect on the date of the
enactment of this Act for the award of the Purple Heart to a
person described in subsection (b) who has been taken
prisoner and held captive on or after April 25, 1962.
(B) An award of a Purple Heart may not be made under
paragraph (1) to any person convicted by a court of competent
jurisdiction of rendering assistance to any enemy of the
United States.
(b) Eligible Persons.--(1) A person referred to in
subsection (a) is an individual--
(A) who is a member of the Armed Forces of the United
States; and
(B) who is wounded while being taken prisoner or held
captive--
(i) in an action against an enemy of the United States:
(ii) in military operations involving conflict with an
opposing foreign force;
(iii) during service with friendly forces engaged in an
armed conflict against an opposing armed force in which the
United States is not a belligerent party;
(iv) as the result of an action of any such enemy or
opposing armed force; or
(v) as the result of an act of any foreign hostile force.
(2) Any wound of a person referred to in paragraph (1)(A)
that is determined by the Secretary of Veterans Affairs to be
a service-connected injury arising from being taken prisoner
or held captive under a circumstance referred to in paragraph
(1)(B) shall also meet the requirement set forth in paragraph
(1)(B).
(c) Relationship to Other Authority To Award the Purple
Heart.--The authority under this Act is in addition to any
other authority of the President to award the Purple Heart.
____

[[Page S4274]]

The Military Order

of the Purple Heart,

Springfield, VA, February 14, 1995.
James Connell,
Department State Director,
Richmond, VA.
Dear Mr. Connell: I received a call from the Senator's
office requesting a copy of the Resolution ``to authorize the
award of the Purple Heart Medal.''
Enclosed is a copy of Resolution No. 94-038, passed by the
Convention Body at the National Convention of the Military
Order of the Purple Heart, in Des Moines, Iowa.
If I can be of further assistance, contact this office.
Sincerely,
Edmund E. Janiszewski,
National Legislative Director.

Resolution No. 94-038
Re to authorize the award of the Purple Heart to persons who
were prisoners of war on or before April 25, 1962.
Committee: Legislative/Service.
Committee Action: Approve.
Whereas: Current law provides for the award of the Purple
Heart Medal to POWs under certain circumstances, who were
captured on or after April 25, 1962; and
Whereas: Senator Robb of Virginia has proposed a bill to
award the Purple Heart Medal to POWs captured prior to April
25, 1962; and
Whereas: Presidents Kennedy and Reagan have issued
Executive Orders allowing for the award of the Purple Heart
Medal to civilians wounded under certain circumstances to
include terrorists attacks; now, therefore be it
Resolved: That the Military Order of the Purple Heart
support legislation proposed by Senator Robb, which is
attached to this resolution; and be it further
Resolved: That the Military Order of the Purple Heart of
the United States of America seek legislation, to negate the
award of the Purple Heart Medal to any civilian under any
circumstances; and finally be it
Resolved: That copies of this resolution be forwarded to
the 62nd National Convention of the Military Order of the
Purple Heart of the United States of America, for adoption by
the delegates in assembly at Des Moines, Iowa, August 8th
thru August 13th, 1994.
Submitted by Edmund F. Janiszewski, National Legislative
Director, July 14, 1994.
Convention Action: Approved by Convention Body August 11,
1994.
____

Disabled American Veterans,

Washington, DC, September 6, 1994.
Hon. Charles S. Robb,
State Office of Senator Charles S. Robb, Richmond, VA.
Dear Senator Robb: Thank you for providing us with a copy
of your draft bill to authorize the award of the Purple Heart
to persons who were prisoners of war on or before April 25,
1962.
This measure has the support of the Disabled American
Veterans. The delegates to our 1994 annual National
Convention adopted a resolution (copy enclosed) supporting
legislation for this purpose, and your draft bill is
consistent with that resolution.
We appreciate the changes you made to address our concerns,
and we appreciate your efforts on behalf of this deserving
group of veterans.
Sincerely,
Richard F. Schultz,
National Legislative Director.

National Interim Legislative Committee Resolution

authorize the purple heart medal to former pows of world war i, world
war ii, and the korean war for injuries received during captivity

Whereas, Title 32, U.S. Code, effective April 25, 1962,
authorizes the award of the Purple Heart to prisoners of war
for wounds or injuries sustained as a result of beatings and
other forms of physical torture while in captivity; and
Whereas, prior to April 25, 1962, the Purple Heart Medal
for former prisoners of war was only awarded to those who
were wounded or injured in action prior to or at the time of
capture or in an attempted or successful escape; and
Whereas, former prisoners of war of World War I, World War
II and the Korean War were physically abused, beaten,
tortured and placed on forced work details, without concern
for their health by enemy guards and hostile civilians; and
Whereas, many of these servicemen, while in captivity,
suffered from physical abuse, malnutrition and exhaustion, as
well as received wounds and injuries as a result of direct
and indirect action at the hands of their captors; NOW
Therefore, be it Resolved that the Disabled American
Veterans in Nation Convention assembled in Chicago, Illinois,
August 20-25, 1994, supports the enactment of legislation to
provide the same consideration to the award of the Purple
Heart Medal to former prisoners of war held captive prior to
April 25, 1962, as afforded those captured after that date.
____

The American Legion,

Washington, DC, August 29, 1994.
Mr. Jim Connell,
Deputy State Director, State Office of Senator Charles S.
Robb, Richmond, VA.
Dear Mr. Connell: Members of the staff of the American
Legion have reviewed Senator Robb's proposed bill authorizing
award of the Purple Heart medal. You have satisfied the
concerns we outlined in our March 31, 1994 letter and we have
no objection to the proposed bill as it now reads. The
Legion, however, still has no resolution recognized by the
membership on this subject and therefore, cannot specifically
and formally endorse the bill at this time.
In most cases dealing with presentation of military awards
and decorations, we defer to the Department of Defense and
their appropriate directives. If your proposed bill
complements a service regulation you should encounter few
objections.
Sincerely,

Gerald M. May,

Assistant Director,
National Legislative Commission.
____

AMVETS,

Lanham, MD, August 25, 1994.
Hon. Charles S. Robb,
U.S. Senate,
Washington, DC.
Dear Senator Robb: I am writing to express AMVETS' support
for your bill to award the Purple Heart to certain military
personnel who were taken prisoner before April 25, 1962.
We are pleased that your bill will recognize the sacrifices
made by those who suffered at the hands of the enemy,
whatever the period of conflict.
I would also like to express AMVETS' opposition to awarding
the Purple Heart to civilians who suffer injuries because of
terrorist action. While we in no way minimize anyone's
suffering, there is a fundamental difference between the
responsibilities incumbent upon each service member and their
civilian counterparts. That alone justifies the limitation on
the eligibility for the award.
Thank you again for working for America's veterans, and we
look forward to working with you in the future.
Sincerely,
Donald M. Hearon,

National Commander.<bullet>
______

By Mr. LAUTENBERG:
S. 586. A bill to eliminate the Department of Agriculture and certain
agricultural programs, to transfer other agricultural programs to an
agribusiness block grant program and other Federal agencies, and for
other purposes; to the Committee on Agriculture, Nutrition, and
Forestry.

the agriculture modernization act

<bullet> Mr. LAUTENBERG. Mr. President, I introduce the Agriculture
Modernization Act. It would eliminate the Department of Agriculture,
spinning off some programs to other parts of the Federal Government,
and sell the two USDA buildings on the Mall.
This legislation acknowledges what we all know: the Great Depression
ended 50 years ago and it's 1995. Many USDA activities should go the
way of the WPA and other programs which, like the USDA's commodity
price programs, were set up to deal with the devastation caused by the
Depression. With recovery, they were disbanded.
House Budget Committee Chairman John Kasich and Senate Majority
Leader Bob Dole have proposed eliminating four departments of
government as part of their deficit reduction plan: Committee,
Education, Energy, and Housing and Urban Development.
If we want to scale back government, and eliminate wasteful
bureaucracies, the USDA is an excellent place to start. It is the most
obsolete and bloated of all Cabinet departments. The USDA tops the list
for personnel, budget, and subsidies to those who need them least.
In scaling back Government, let's start with a department that
provides pork for agribusinesses that don't need it before we eliminate
one that helps our children get an education and start on life.
In evaluating the Kasich-Dole proposal, it is important to understand
that the USDA has 109,000 employees, more than the other four
departments combined. Furthermore, USDA's $62 billion budget dwarfs the
budgets of Commerce, Energy, Education and HUD. Indeed, it is almost as
large as these four departments combined.
The Agriculture Modernization Act will eliminate wasteful programs in
USDA. It will transfer important programs to agencies better suited to
administer them, like HHS taking over the Food Stamp Program.
And it will put all the money spent on commodity programs into a
block grant which will be phased out completely over 5 years. This will
permit the States to help recipients of agricultural entitlement
programs adjust to a scaling back, and then loss, of benefits.
[[Page S4275]] This bill will reduce the deficit by approximately
$25 billion over 5 years. The Republican leaders
have laid out ambitious deficit reduction goals to slice $500 billion
off the Federal budget in the next 5 years. They propose to accomplish
this without touching Social Security.

That's going to mean very deep cuts. I'd like to see us start on
subsidies to agribusiness and waste at USDA before we cut the safety
net out from under our Nation's families and children.
The Department of Agriculture's time has come and gone. It began
under President Abraham Lincoln. In the 1860's, 60 percent of Americans
were farmers and the USDA had 9 employees. Now only 2 percent of
Americans are farmers and USDA has 109,000 employees worldwide.
That's one bureaucrat for every five farmers.
The commodity programs began in the Great Depression, when we did not
know if America could feed itself. When we didn't know if grocery
stores would have food on their shelves.
But American agriculture is much different today. Our stores are
stocked with inexpensive foods. And our most competitive commodities
are fruits, vegetables, meats, and poultry that don't receive any price
subsidies.
It's time to extend free market principles to agriculture.
There are 75,000 farmers with incomes over $250,000 per year who get
an average of $26,000 in agricultural subsidies. My small
businesspeople in New Jersey making a lot less don't get subsidies.
And, the Republicans want to reduce the school lunch program, nutrition
programs, take away summer jobs from kids, cut assistance to seniors
and others for heating bills, and cut housing aid to AIDS patients,
among others.
I say we should start with USDA. No more aid for dependent
agribusinesses.
I support entitlement programs for kids and other groups in need. I
think we should have a social safety net. But, agribusiness is not on
my list of deserving beneficiaries.
This bill sets priorities for deficit reduction. We should start by
cutting obsolete programs and programs that benefit those who don't
need Government assistance.
Mr. President, I ask unanimous consent that an accompanying factsheet
be inserted in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Agriculture Modernization Act of 1995

This bill will eliminate the USDA in 1996. This will be
accomplished by eliminating some programs, phasing out the
commodity programs over five years and by transferring some
agencies and functions to other departments.

Programs to be Eliminated

Market Promotion Program.
Export Enhancement Program.
Rural Telephone Program.
Rural Electricity Program.
Animal Damage Control Program.
Commodity Credit Corporation.

Block Grant--Administered by the Department of Commerce (Phased out
over five years)

All commodity programs including: Feed grains, wheat, rice,
cotton, tobacco, dairy, soybeans, peanuts, sugar, honey, and
wool.

Deficit Reduction

This legislation will save approximately $25 billion over five years,
not including administrative savings resulting from transferring
duplicative functions to other departments and agencies. See attachment
for details.
programs to be transferred

Health and Human Services:
Food Stamps, School Lunch, WIC and other nutrition
programs. Nutrition programs that are entitlements will
remain so.
Food Safety and Inspection Service.
Food and Consumer Service.
Parts of the Animal and Plant Health Inspection Service.
Commerce:
Economic research and statistical programs.
Agriculture research programs.
Regulatory programs.
Economic development programs.
Parts of Animal and Plant Health Inspection Service.
Interior: Forest Service, Natural resource, conservation
and environmental programs.
Treasury: Credit and loan programs.
FEMA: Crop insurance.
EPA: Rural Utilities Service Water and Sewer
Programs.<bullet>
______

By Mr. HATCH (for himself, Mr. Heflin, Mr. Dole, Mr. Thurmond,
Mr. Grassley, Mr. Simpson, Mr. Kyl, Mr. Exon, Mr. Craig, Mr.
Ford, Mr. Lott, Mr. Ashcroft, Mr. Baucus, Mr. Bond, Mr. Breaux,
Mr. Campbell, Mr. Coats, Mr. Cochran, Mr. Cohen, Mr. Coverdell,
Mr. D'Amato, Mr. Faircloth, Mrs. Feinstein, Mr. Gramm, Mr.
Grams, Mr. Gregg, Mr. Helms, Mr. Hollings, Mrs. Hutchison, Mr.
Inhofe, Mrs. Kassebaum, Mr. Kempthorne, Mr. Lugar, Mr. Mack,
Mr. McCain, Mr. Murkowski, Mr. Pressler, Mr. Rockefeller, Mr.
Roth, Mr. Santorum, Mr. Shelby, Mr. Smith, Ms. Snowe, Mr.
Stevens, Mr. Thomas, Mr. Thompson, and Mr. Warner):
S.J. Res. 31. A joint resolution proposing an amendment to the
Constitution of the United States to grant Congress and the States the
power to prohibit the physical desecration of the flag of the United
States; to the Committee on the Judiciary.

flag desecration constitutional amendment

Mr. HATCH. Mr. President, throughout our history, the American people
have revered the flag of the United States as the symbol of our Nation.
The American flag represents in a way nothing else can, the common bond
shared by a very diverse people. Yet whatever our differences of party,
politics, philosophy, race, religion, ethnic background, economic
status, social status, or geographic region, we are united as
Americans. That unity is symbolized by a unique emblem, the American
flag.
As Supreme Court Justice, John Paul Stevens said in his dissent in
the 1989 Texas flag-burning case:

A country's flag is a symbol of more than nationhood and
national unity. It also signifies the ideas that characterize
the society that has chosen that emblem as well as the
special history that has animated the growth and power of
those ideas. . . . So it is with the American flag. It is
more than a proud symbol of the courage, the determination,
and the gifts of a nation that transformed 13 fledgling
colonies into a world power. It is a symbol of freedom, of
equal opportunity, of religious tolerance, and of goodwill
for other peoples who share our aspirations.

For over 200 years, this proud banner has symbolized hope,
opportunity, justice and, most of all, freedom, not just to the people
of this Nation, but to people all over the world. I believe that the
American flag is equally worthy of protection as the ideals for which
it stands.
This February 23 marked the 50th anniversary of one of the most
dramatic moments in our Nation's history; the raising of the American
flag on the Island of Iwo Jima by U.S. marines during World War II.
That heroic image instantly came to symbolize the determination and
courage of all of the brave Americans fighting in that great struggle
for the very survival of
America as a free nation. Fifty years later, it remains one of our
Nation's most powerful images, reminding us that throughout our
history, through the generations, from the Battle of Bunker Hill to
Operation Desert Storm, on every continent and ocean, in every corner
of the world, Americans have fought, and in many cases given their
lives, fighting under this flag and for the Nation and the ideals it
represents. By protecting that flag against acts of physical
desecration, we honor their memory and their sacrifice.

I am proud to rise today to introduce a constitutional amendment that
would restore to Congress and to the 50 States the right to protect our
unique national symbol, the American flag, from acts of physical
desecration.
Restoring legal protection to the American flag is not a partisan
issue. Forty-three Senators, both Republicans and Democrats, have
joined with Senator Heflin and myself as original cosponsors of this
amendment.
Restoring legal protection to the American flag would not overturn
the first amendment. Rather, it would overturn an interpretation of
that amendment by the Supreme Court, in which the Court, by the
narrowest of margins, five to four, held that flag burning was a form
of protected free speech. Distinguished jurists regarded as great
champions of the first amendment agreed that physical desecration of
the American flag does not fall within the ambit of the first
amendment. In the case of Street versus New York, then Chief Justice
Earl Warren wrote:
[[Page S4276]] ``I believe that the States and the Federal Government
have the power to protect the flag from acts of physical desecration
and disgrace.'' Justice Abe Fortas wrote: ``The States and the Federal
Government have the power to protect the flag from acts of desecration
committed in public.'' Justice Hugo Black, generally regarded as a
first amendment absolutist, stated: ``It passes my belief that anything
in the Federal Constitution bars a State from making the deliberate
burning of the American flag an offense.'' I believe the Court majority
in the Texas versus Johnson case had it wrong; burning the flag is
conduct and may be prohibited. This amendment would correct that error
and restore to Congress and the State the power they historically had
to protect the American flag from acts of physical desecration.
Restoring legal protection to the American flag would not place us on
a slippery slope precisely because the flag is so unique as our
national symbol. There is no other symbol, no other object, which
represents our Nation as does the flag. Accordingly, there is
absolutely no basis for concern that the protection we seek for the
American flag could be extended to cover any other object of form of
political expression.
Restoring legal protection to the American flag would not infringe on
free speech. Freedom of speech is not and has never been absolute. We
have laws against libel, against slander, and against obscenity. As a
society, we can and do place limitations on both speech and conduct.
The classic example is, of course, the prohibition against shouting
fire in a crowded theater. You can't hold a demonstration in a
courtroom. You can't make speeches using a bullhorn at 2 a.m. in a
residential neighborhood. You can't destroy Government property or
buildings as a means of protest. Right here in the U.S. Senate, we
prohibit speeches or demonstrations of any kind, even the silent
display of signs or banners, in the public galleries. I believe flag
burning is in the same category as obscenity--conduct which is beyond
the pale of acceptability even in a free society.
For many years, our flag was protected, by Federal law and laws in 48
States, from acts of physical desecration. No one can seriously argue
that freedom of speech or freedom of expression was diminished or
curtailed during that period. Restoring the protection of law to our
flag would not prevent the expression, in numerous ways safeguarded
under the Constitution, of a single idea or thought. It merely prevents
conduct with respect to one unique, symbolic object, our Nation's flag.
The effort to restore legal protection to our national symbol is a
movement of the American people. It has been initiated by grassroots
Americans; 91 civic, veterans, and patriotic organizations, led by the
American Legion, joined together in the Citizens Flag Alliance, working
to build support across this Nation for a constitutional amendment to
restore the historical protection of our flag. Forty-six States have
passed resolutions urging Congress to send a flag protection amendment
to the States for ratification.
Let this be clear: the Citizens Flag Alliance came to me, Senator
Heflin, and other Members of Congress, before last November. We did not
come to them. This effort is not generated from Capitol Hill. The
Citizens Flag Alliance presented us with a report on their effort. They
asked us for our support for their cause. We were pleased to agree. It
is now up to Congress to heed the voice of the American people and pass
this amendment.
Mr. President, I ask unanimous consent that the text of the joint
resolution be printed in the Record.
There being no objection, the joint resolution was ordered to be
printed in the Record, as follows:

S.J. Res. 31

Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within seven years from
the date of its submission by the Congress:

``Article --

``The Congress and the States shall have power to prohibit
the physical desecration of the flag of the United States.''.

Mr. HEFLIN. Mr. President, I rise today in support of a
constitutional amendment to prevent the desecration of the American
flag. As an original cosponsor along with Senator Hatch and 42 of our
colleagues, I urge our colleagues to join in protecting the sanctity of
this symbol of our great Nation. As I have said before on the Senate
floor, I feel that the Supreme Court's decision in Texas versus
Johnson, incorrectly places flag burning under the protection of the
first amendment. In my judgement, it is our responsibility to change
that decision and return the flag to the position of respect it
deserves.
Few people would disagree with the argument that the American flag
stands as one of the most powerful and meaningful symbols of freedom
ever created. In the dissent in Texas versus Johnson, Chief Justice
Rehnquist states in his opening paragraph:

For more than 200 years, the American flag has occupied a
unique position as the symbol of our Nation, a uniqueness
that justifies a governmental prohibition against flag
burning in the way * * * Johnson did here.

Justice Stevens calls the flag a national asset much like the Lincoln
Memorial. He states that:

Though the asset at stake in this case is intangible, given
its unique value, the same interest supports a prohibition on
the desecration of the American flag.

I must agree with Chief Justice Rehnquist and Justice Stevens in
their belief that the flag should be protected from such desecration.
However, I believe that the flag also has a tangible value. I feel that
the court could have expressed an opinion that would have allowed
protection to both values, for in that case, the flag was stolen.
The flag holds a mighty grip over many people in this country. Its
mystical appeal is as unique to every person as a fingerprint.
Thousands of Americans have followed the flag into battle and thousands
of these Americans have left these battles in coffins draped proudly by
the American flag. Nothing quite approaches the power of the flag as it
drapes those who died for it, or the power of the flag as it is handed
to the widow of that fallen soldier. The meaning behind these flags
goes far beyond the cloth used to make the flag or the dyes used to
color Old Glory red, white, and blue. The flag reaches to the very
heart of what it means to be an American. It would be a tragedy for us
to allow the power of the flag to be undermined through the legal
desecration of the flag. Allowing the legal burning of that flag
creates a mockery of the great respect so many patriotic Americans have
for the flag.

judicially wrong

As I have stated before, I feel on many different levels that the
Supreme Court's decision was wrong. I feel it was wrong for me
personally, it was wrong for patriotism, it was wrong for this country,
but perhaps most importantly, this decision was judicially wrong.
I want to emphasize that although I am a strong believer in first
amendment rights, I recognize that first amendment rights are not
absolute and unlimited. There have been numerous decisions of the
Supreme Court that limit freedom of expression.
Some of history's great protectors of the freedom of speech have
agreed that the first amendment is not absolute. Many of these
protectors have agreed that the flag is a symbol of such profound
importance that protecting it is permissible. Later in this speech I
will be quoting from some of the protectors of both the flag and the
first amendment such as Supreme Court Chief Justice Earl Warren,
Justice Hugo Black, Justice John Paul Stevens, and Justice Oliver
Wendell Holmes.
In a landmark case reflecting the Supreme Courts long held belief
that the freedom of expression is not absolute, the court in Shenk v.
United States, 249 U.S. 47 (1919) stated that:

The most stringent protection of free speech would not
protect a man in falsely shouting fire in a theater and
causing a panic.

Justice Oliver Wendell Holmes stated that:

The question in every case is whether the words [actions]
used are used in such clear circumstances and are of such a
nature as to create a clear and present danger that they will
bring about the substantive evils that the Congress has a
right to prevent.

[[Page S4277]] Clearly the indignation caused by the Johnson decision
and the fisticuffs which have broken out in flag burning attempts show
that flag burning should not be protected by the first amendment. What
if the flag burning had occurred in wartime? Certainly, a clear and
present danger would be present.
Justice Stevens wrote in Los Angeles City Council v. Taxpayers for
Vincent 466 U.S. 789 (1984) that:

The first amendment does not guarantee the right to imply
every conceivable method of communication at all times and in
all places.

Arguments have been made that limitations on the freedom of
expression refer only to bodily harm,
however, the Supreme Court has recognized the need for individuals to
protect their honor, integrity, and reputation when injured by libel or
slander. See: New York Times v. Sullivan, 376 U.S. 254 (1964)
(providing standards regarding the libel of public figures); Time v.
Hill, 385 U.S. 374 (1967) (providing standards regarding libel of
private individuals).

These holdings protect an individual's honor from defamation. I see
no reason why the honor of our flag should not be protected.
Arguments have also been made that limitations on free speech involve
only civil suits. However, the Court has continually upheld criminal
statutes involving obscene language and pornography. There is: New York
v. Ferber, 458 U.S. 747 (1982) (upholding a New York statute regarding
child pornography); Miller v. California, 413 U.S. 15 (1973) (this case
provides much of the current legal framework for the regulation of
obscenity).
The U.S. Supreme Court has even upheld criminal statutes involving
draft card burning. In United States v. O'Brian, 391 U.S. 367 (1968),
the Court upheld the Federal statute which prohibited the destruction
or mutilation of a draft card. In reaching this decision the Court
expressly stated:

[W]e cannot accept the view that an apparently limitless
variety of conduct can be labeled ``speech'' whenever the
person engaging in the conduct intends thereby to express an
idea.

Certainly the people of America have a right to expect that the
honor, integrity, and reputation of this Nation's flag should be
protected. If draft card burning can be prohibited, surely burning the
American flag can also be prohibited. Does a draft card have more honor
than the American flag? Certainly not.
In an earlier decision involving the desecration of the flag, Chief
Justice Earl Warren wrote in dissent in Street v. New York, 394 U.S.
577 (1969):

I believe that the States and the Federal Government do
have the power to protect the flag from acts of desecration
and disgrace * * * however, it is difficult for me to imagine
that, had the Court faced this issue, it would have concluded
otherwise.

In this same case, Justice Hugo Black dissented stating:

It passes my belief that anything in the Federal
Constitution bars a State from making the deliberate burning
of the American flag an offense.

I do not think that anyone can question that Hugo Black and Earl
Warren were champions of the first amendment, but they recognized that
the flag was something different, something special. The Supreme Court
substantiated this view in Smith v. Coguen, 415 U.S. 566 (1974), when
the majority of the Court noted that:

[C]ertainly nothing prevents a legislature from defining
the substantial specificity what constitutes forbidden
treatment of the United States flags.

Finally I would like to quote from Justice Stevens in Texas v.
Johnson, when he says about the flag:

It is a symbol of freedom, of equal opportunity, of
religious tolerance, and of good will for other people who
share our aspirations. The symbol carries its message to
dissidents both home and abroad who may have no interest at
all in our national unity and survival.

I am a strong believer that the rights under the first amendment
should be fully protected and do not feel that an amendment changing
these rights should be adopted except in very rare instances. The
Founding Fathers, in drafting article V of the Constitution, intended
that if it would be extremely difficult to amend the Constitution,
requiring a two-thirds vote of both Houses of Congress and a difficult
ratification process requiring the vote of three-fourths of the States.
The history of this country shows that only 27 amendments to the
Constitution have been adopted and only 17 after the Bill of Rights--
containing the first 10 amendments--were ratified.
Some may ask why have a constitutional amendment; why not try
legislation? To those I would say the Senate has passed statutes
concerning flag desecration. As a body we have tried to oppose the
protection of flag desecration, but statutory law has not worked. We
have a number of groups that have joined together to form the Citizen's
Flag Alliance. There are about 90 organizations in this wide-ranging
coalition. In addition, 46 States' legislatures have passed
memorializing resolutions calling for the flag to be protected by the
Congress.
In my judgment, we should heed this call and act decisively to ensure
that the American flag remains protected and continues to hold the high
place we have afforded it in both our hearts and history. The flag is
indeed an important national asset which we must always support as we
would support the country herself. In closing, I want to share with you
the eloquent words of Henry Ward Beecher's work, ``The American Flag,''
which expresses this sentiment:

A thoughtful mind, when it sees a national's flag, sees not
the flag only, but the Nation itself; and whatever may be its
symbols, its insignia, he reads chiefly in the flag the
government, the principles, the truths, the history which
belongs to the Nation that sets it forth.

Mrs. FEINSTEIN. Mr. President, I compliment my colleague on the
Judiciary Committee and the Senator from Alabama for his very
thoughtful statement and constitutional amendment. I would very much
appreciate being listed as a cosponsor of that amendment.
I thank the Senator for his words because I think they were cogent. I
also believe they reflect the views of the American people.
Mr. HEFLIN. I thank the Senator.
Mr. MACK. Mr. President, this past election demonstrated the desire
of American citizens everywhere for change. People are frustrated with
the direction in which this country has been heading and the skewing of
priorities and values. One example of how standards and basic values
are slipping was the 1989 Supreme Court ruling which permitted the
desecration of our Nation's flag.
The American flag has always been a symbol of freedom and democracy
throughout the world. It has guided thousands upon thousands of
American service men and women as they have fought and died in defense
of our basic freedoms.
The Court's decision struck at the heart of everything we hold dear
in America. The flag is our most cherished symbol of liberty and is
recognized throughout the world as an emblem of hope for those
struggling for freedom. We should not condone its willful destruction.
Mr. President, I support the proposal for a constitutional amendment
to protect the sanctity of the American flag. With this amendment, the
first amendment can be upheld while we clearly declare our reverence
for and dedication to our most cherished symbol of freedom--the
American flag.
Mr. CRAIG. Mr. President, I am pleased to join my distinguished
colleagues in proposing a constitutional amendment to protect the flag
of the United States.
We Americans are not one race, nor are we one creed. We are an
amalgam of the world's people come together to form a nation. And to
symbolize that union, we have chosen a fabric that weaves together our
many races, customs, and beliefs: the American flag.
No other emblem, token, or artifact of our Nation has been defended
to the death by legions of patriots. No other has drawn multitudes from
abroad with the promise of freedom. No other has inspired generations
with the belief that life, liberty, and the pursuit of happiness are
the birthright of every human being.
Old Glory holds a unique place in the hearts of Americans, and that
is why they have requested--indeed, demanded--unique protection for it.
Several years ago, Congress attempted to fashion legislation for this
purpose, but it just did not work.
Some people probably thought that was the end of the story. They
were
[[Page S4278]] wrong. The American people did not give up; they
continued to debate and discuss this matter. And they succeeded in
passing memorials in 43 States urging Congress to take action to
protect the flag from physical desecration. Some of my colleagues may
recall last year, on Flag Day, I placed those memorials in the
Congressional Record for all to see.
Mr. President, the legislatures submitting those memorials represent
nearly 229 million people--more than 90 percent of our country's
population. They did not pass these memorials easily or swiftly. In
legislature after legislature, the record shows these memorials were
given serious and thorough consideration.
Now it is time for the U.S. Congress to match that resolve. Today, in
response to the demand of the American people, we are offering this
amendment. Mr. President, I urge all my colleagues to join us in
supporting this necessary and appropriate measure to safeguard the flag
of our Nation.
Mr. KEMPTHORNE. Mr. President, I rise today in strong support of
efforts to protect the flag of the United States. I am pleased to join
my colleagues in introducing a resolution proposing a constitutional
amendment to prohibit the desecration of the flag.
Mr. President, the support for this amendment is, quite simply,
overwhelming; 46 State legislatures have already passed memorializing
resolutions requesting the Congress to pass an amendment to protect the
flag. I am pleased to note my home State, Idaho, passed just such a
resolution 2 years ago. In asking the Congress to present an antiflag
desecration amendment to the States for ratification, the Idaho
Legislature stated,

... the American Flag to this day is a most honorable and
worthy banner of a nation which is thankful for its strengths
and committed to curing its faults, and a nation which
remains the destination of millions of immigrants attracted
by the universal power of the American ideal ....

Should not the symbol of this ideal be protected? Since 1777, when
the Second Continental Congress passed a resolution describing what the
flag of the fledgling Nation should be, the Stars and Stripes has stood
for all that we hold dear. While great leaders of this Nation have come
and gone, the flag has been an American constant. Through the Civil
War, two World Wars, the Depression, and times of domestic crisis, Old
Glory has flown proudly, serving as a symbol to all the world that
freedom, justice, and liberty remain alive in the United States.
As a member of the Senate Armed Services Committee, I have had the
opportunity to meet the men and women of our Armed Forces around the
world. These individuals put their lives on the line regularly, so that
we may live in peace and safety. And while they are serving us, the
American public, they do so under the Stars and Stripes. For those who
are stationed overseas, the flag represents the rights and freedoms
which they stand prepared to defend, even while on foreign ground. It
also stands for their home, the Nation which proudly awaits their
return when their duties are done. For those who have finished their
service to their country, the flag is a constant reminder that the
ideals for which they fought still live, and that their sacrifices were
not in vain.
In 1867, Senator Charles Sumner expressed his sentiments about the
flag. His words, I think, are most appropriate to be repeated at this
time. He said:

There is the national flag. He must be cold, indeed, who
can look upon its folds rippling in the breeze without pride
of country. If in a foreign land, the flag is companionship,
and country itself with all its endearments ... White is for
purity; red for valor; blue, for justice. And altogether,
bunting, stripes, stars, and colors, blazing in the sky, make
the flag of our country, to be cherished by all our hearts,
to be upheld by all our hands.

Mr. President, how can we continue to uphold the flag to the honor it
deserves if we allow it, the symbol for all for which this Nation
stands, to be willfully desecrated and defiled? The courts have said we
can not protect the flag by statute; our only remedy is to amend the
Constitution. So, I stand here today to express my wholehearted support
for the resolution which will be introduced today to propose just such
an amendment. I hope my colleagues will join me in acting to protect
our flag and all that it represents of our past, our present, and our
future.
Mr. PRESSLER. Mr. President, I rise to announce my cosponsorship of a
joint resolution to amend the U.S. Constitution to allow Congress and
the States to prohibit the desecration of the American flag.
Having served two tours in the Vietnam war as a second lieutenant in
the Army, our flag has a deep personal meaning for me. I experience a
feeling of pride when I see the Stars and Stripes flying in front of a
military base, on top of the U.S. Capitol Building here in Washington,
or in a small town parade in South Dakota. I feel sick to my stomach
when I think of its desecration by my fellow Americans.
The American flag is a dramatic living symbol of the principles for
which this great country stands--liberty, due process, justice for all.
Our flag is an emblem of the ideals which set our Nation apart from all
others.
When someone willfully desecrates the flag, he or she is committing a
malicious act of violence that incites those Americans who have
dedicated their lives to uphold the values we cherish. It tramples the
honor of millions of soldiers--men and women--who served, fought, and
died to preserve the values which the flag represents. It strikes at
the honor of the untold number of civilians who have worked in
industries behind the lines to support our military forces.
Mr. President, in Johnson versus Texas (1989), the Supreme Court
ruled that desecrating the flag is free speech protected by the first
amendment. In response, Congress overwhelmingly passed the Flag
Protection Act of 1989. However, the following year, in United States
versus Eichmann (1990), the Court struck down this statute as an
impermissible infringement on the first amendment.
I disagree with the Supreme Court's rulings. I believe it is entirely
appropriate for Congress to enact legislation to protect from
desecration the primary symbol of our great Nation. However, unless the
Johnson and Eichmann decisions are overturned by a subsequent Court, it
is clear that only a constitutional amendment will ensure the validity
of any State or Federal statute banning flag desecration.
Opponents of our effort to protect the flag argue that free speech is
among the most sacred rights enjoyed by Americans. They believe that
this amendment limits their right to freedom of speech. I certainly
agree with the need to vigilantly guard the first amendment. No other
society on this planet is more tolerant of different viewpoints and
opinions than America. But flag desecration is more than just speech.
It is among those acts of public behavior so offensive and harmful that
they fall outside of the protections of the first amendment.
For example, one of the famous limits of free speech is that one
cannot shout ``fire!'' in a crowded move theater. Malicious and
defamatory speech, such as slander and libel, also are not protected by
the first amendment. Obscenity does not enjoy the protection of the
first amendment. We do not permit people to freely deface a synagogue
or church buildings in the name of free speech. Likewise, physical
desecration of the flag through burning, trampling, or any other method
is not free speech protected by our Constitution. It is offensive
conduct that does not deserve protection by the first amendment.
I am therefore proud to join with my colleagues in supporting a
constitutional amendment to protect the American flag. Since the
Johnson ruling, 43 States have passed resolutions calling on Congress
to pass a flag desecration amendment for consideration by the States.
Mr. President, I urge my colleagues to carry out the clear will of the
American people by supporting this resolution.
Mr. D'AMATO. Mr. President, generations of immigrants have surmounted
incredible obstacles to reach our shores and experience true American
freedom. Our Nation's flag has welcomed these weary travelers for
hundreds of years. For these people, the U.S. flag is more than just a
simple patchwork of cloth, it is the patchwork of our values, our
beliefs, and our freedoms. It is our history.
During this history, many brave Americans sacrificed their lives for
the flag. At Malmedy, Khe Sanh, Inchon, Iwo Jima, Kuwait City, and in
numerous other places, Americans fought and
[[Page S4279]] died for democracy, freedom, and justice. Indeed, our
flag represents these virtues. It would be an insult to their memory if
we allowed the continued desecretion of our flag. This practice must
end, and end now.
Ms. SNOWE. Mr. President, I am proud to join Senators Hatch, Heflin,
and others in cosponsoring the proposed constitutional amendment to
grant to States and Congress the power to prohibit the physical
desecration of the flag of the United States. Our flag occupies a truly
unique place in the hearts of millions of citizens as a cherished
symbol of freedom and democracy. As a national emblem of the world's
greatest democracy, the American flag should be treated with respect
and care. Our free speech rights do not entitle us to simply consider
the flag as personal property, which can be treated any way we see fit
including physically desecrating it as a legitimate form of political
protest.
The flag is not just simply a visual symbol to us--it is a symbol
whose pattern and colors tell a story that rings true for each and
every American. The 50 stars and 13 stripes on the flag are a reminder
that our Nation is built on the unity and harmony of 50 States. And the
colors of our flag were not chosen randomly: red was selected because
it represents courage, bravery, and the willingness of the American
people to give their life for their country and its principles of
freedom and democracy; white was selected because it represents
integrity and purity; and blue because it represents vigilance,
perseverance, and justice. Thus, this flag has become a source of
inspiration to every American wherever it is displayed.
For these reasons and many others, a great majority of Americans
believe--as I strongly do--that the American flag should be treated
with dignity, respect, and care--and nothing less.
Unfortunately, not everyone shares this view. In June 1990, the
Supreme Court ruled that the Flag Protection Act of 1989, legislation
adopted by the Congress in 1989 generally prohibiting physical
defilement or desecration of the flag, was unconstitutional. This
decision, a 5-to-4 ruling in U.S. versus Eichman, held that burning the
flag as a political protest was constitutionally protected free speech.
The Flag Protection Act had originally been adopted by the 101st
Congress after the Supreme Court ruled in its Texas versus Johnson case
that existing Federal and State laws prohibiting flag burning were
unconstitutional because they violated the first amendment's provisions
regarding free speech.
I profoundly disagreed with both rulings the Supreme Court made on
this issue. In our modern society, there are still many different
forums in our mass media, television, newspapers and radio and the
like, through which citizens can freely and fully exercise their
legitimate, constitutional right to free speech, even if what they have
to say is overwhelmingly unpopular with a majority of American
citizens.
The constitutional amendment being introduced today has been
carefully drafted to simply allow the Congress and individual State
legislatures to enact laws prohibiting the physical desecration of the
flag, if they so choose. It certainly does not stipulate or require
that such laws be enacted. When considering the issue, it is helpful to
remember that prior to the Supreme Court's 1989 Texas versus Johnson
ruling, 48 States, including my own State of Maine, and the Federal
Government had anti-flag-burning laws on their books for years.
Whether our flag is flying over a ball park, a military base, a
school, or on a flag pole on Main Street, our national standard has
always represented the ideals and values that are the foundation this
great nation was built on. And our flag has come not only to represent
the glories of our Nation's past, but it has also come to stand as a
symbol for hope for our Nation's future. Mr. President, I urge my
colleagues to support this important amendment.
Mr. FORD. Mr. President, there are many reasons for protecting the
unique symbol of the American flag, from the basic liberties it
represents to the promise of a better future. But some of the greatest
reasons for protecting the flag occurred thousands of miles away from
our own shores.
For example, 50 years ago, just days after American troops had
claimed victory at Iwo Jima, six soldiers helped raise the American
flag on the highest point of the island. You can see a soldier on the
far left with both arms reaching skyward. It's unclear whether he's
just released the flag pole, or if he's trying to touch the flag he
fought so hard for, one last time.
And perhaps it was the last time he touched the American flag, for 26
days later, he died on the island he had helped claim.
The soldier was Pvt. Franklin Sousley of Kentucky, and his image in
this famous photograph not only has frozen in time his historic
efforts, but tied them inextricably to the symbolism of the American
flag.
The flag that flew at Iwo Jima serves as a reminder of how war
changes the course of a life, of a nation, of a world, so that even
individuals who were never there, recognize that those hours of
destruction and suffering have altered the future irrevocably.
But Private Sousley's outstretched arms also mirror the actions of
the millions who've reached out for all that our flag symbolizes, from
the basic liberties written into our Constitution to the dreams of a
better future for their families.
That is why I believe so strongly that the physical integrity of the
American flag must be protected. Back in 1989, the U.S. Supreme Court
declared unconstitutional a Texas flag desecration statute, ruling that
flag desecration was free speech protected under the first amendment.
In response to that decision, the Senate overwhelmingly passed the
Flag Protection Act, which was also declared unconstitutional. The
Supreme Court's action made it clear that a constitutional amendment is
necessary for enactment of any binding protection of the flag.
Up to this point, neither House of Congress has been able to garner
the two-thirds supermajority necessary for passage of a constitutional
amendment. But because grassroots support for this amendment continues
to grow, I have joined with Members on both sides of the aisle to again
try passing this amendment. I am hopeful that this time we'll get the
necessary votes.
Clearly no legitimate act of political protest should be suppressed.
Nor should we ever discourage debate and discussion about the Federal
Government. The narrowly written amendment gives Congress and the
States the ``power to prohibit the physical desecration of the flag of
the United States,'' without jeopardizing those rights of free speech.
Fifty years ago, the American flag flying over Iwo Jima literally
meant life for the flyers of crippled B-29's who would have died at sea
if they had not had the island to land on.
Today, the flag that hangs in schoolrooms, over courthouses, in
sports stadiums, and off front porches all across America, has a bit of
the battle of Iwo Jima woven into its fabric.
Mr. President, I would say that's something worth protecting.
Mr. THURMOND. Mr. President, I rise today as an original cosponsor of
a proposed constitutional amendment authorizing the Congress and the
States to prohibit the physical desecration of the American flag.
In June of 1989, the Supreme Court issued a ruling in Texas versus
Johnson which allows the contemptuous burning of the American flag.
Immediately after that ruling, I drafted and introduced a proposed
constitutional amendment to overturn that unfortunate decision.
After bipartisan discussions with Members of the Senate and President
Bush, the Senate voted on a similar proposal which I cosponsored.
During this time, the Supreme Court ruled in U.S. versus Eichman that a
Federal statute designed to protect the flag from physical desecration
was unconstitutional. The Texas decision had involved a State statute
designed to protect the flag.
On June 26, 1990, the Senate voted 58-42 for the proposed
constitutional amendment, 9 votes short of the two-thirds needed for
congressional approval.
Opponents of this proposed amendment claimed it was an infringement
on the free speech clause of the first amendment. However, the first
amendment has never been construed as protecting any and all means of
expressive
[[Page S4280]] conduct. Just as we are not allowed to falsely shout
``fire'' in a crowded theater or obscenities on a street corner as a
means of expression, I firmly believe that physically desecrating the
American flag is highly offensive conduct and should not be allowed.
The opponents of our proposal to protect the American flag have
misinterpreted its application to the right of free speech. Former
Chief Justice Warren, Justices Black and Fortas are known for their
tenacious defense of first amendment principles. Yet, they all
unequivocally stated that the first amendment did not protect the
physical desecration of the American flag. In Street versus New York,
Chief Justice Warren stated, ``I believe that the States and the
Federal Government do have the power to protect the flag from acts of
desecration and disgrace.''
In this same case, Justice Black, who described himself as a first
amendment ``absolutist'' stated, ``It passes my belief that anything in
the Constitution bars a State from making the deliberate burning of the
American flag an offense.''
Mr. President, the American people treasure the free speech
protections afforded under the first amendment and are very tolerant of
differing opinions and expressions. Yet, there are certain acts of
public behavior which are so offensive that they fall outside the
protection of the first amendment. I firmly believe that flag burning
falls in this category and should not be protected as a form of speech.
The American people should be allowed to prohibit this objectionable
and offensive conduct.
It is our intention with this proposed constitutional amendment to
establish a national policy to protect the American flag from
contemptuous desecration. The American people look upon the flag as our
most recognizable and revered symbol of democracy which has endured
throughout our history.
Mr. President, I urge my colleagues to join the sponsors and
cosponsors of this proposed constitutional amendment to protect our
most cherished symbol of democracy.
Mr. GRASSLEY. Mr. President, I am pleased to join the chairman of the
Senate Judiciary Committee, Senator Hatch, and my other distinguished
colleagues in cosponsoring this resolution to amend the Constitution of
the United States to grant Congress and the States the power to
prohibit the physical desecration of the flag of the United States.
Let me state from the outset, as I have stated before, this amendment
will merely restore the power to Congress and the States to prohibit
flag desecration--a power that we believe they have always had.
Unfortunately, the Supreme Court incorrectly interpreted the
Constitution's first amendment. The Court failed to discern the
difference between protected speech, and an act--a type of hate crime
of physical desecration of the flag.
Therefore, our amendment does not tamper or tinker with the
Constitution's Bill of Rights that protects speech.
But, Mr. President, for argument's sake, assume this amendment does
tamper with the speech clause.
Let us ask ourselves a question. If we had to choose, should we amend
the speech clause to: protect the American flag from acts of
desecration; or protect our reelection to office by restricting the
right of voters to hear words of opposition and opponents to speak
against us--the incumbents?
I regret, Mr. President, that too many Senators have sided with
incumbent protection instead of flag protection.
Remember, the Senate in 1990 fell 9 votes short of the 67 needed to
pass a flag protection amendment to the Constitution because, by and
large, it was argued that there is something very special, and
untouchable about the speech clause.
Mr. President, you may be astonished to learn that 28 of the 42
Senators who voted against amending the speech clause to protect the
American flag, had either sponsored, cosponsored, or voted to
facilitate the passage of a constitutional amendment pegged the
``incumbent protection bill.''
This speech clause amendment was aimed at overturning the Supreme
Court's Buckley versus Valeo decision. The Court said the first
amendment speech clause is violated by restrictions on money used on
political communication during campaigns.
So while these Senators supported incumbent protection, they strongly
opposed flag protection.
Had only 9 of these 28 Senators had their priorities straight, the
Senate would have passed the flag protection amendment 5 years ago.
And let us keep in mind, during the 200 years following 1789, over
10,000 constitutional amendments were introduced to the various
Congresses.
In fact, in 1990, 525 out of 535 U.S. Representatives and Senators
had sponsored or cosponsored amendments to the Constitution for
everything under the Sun--from ERA to D.C. statehood.
So, the fact is, a vast majority of Congressmen and Senators do
support amending the Constitution.
And more to the point at hand, many of those 28 Senators--who were
happy to amend the speech clause to protect their incumbency, but
joined in killing an amendment to protect the American flag--are still
serving in the 104th Congress.
Mr. President, in fact, enough are still serving, that if they would
change their priorities and their votes, this time our efforts to pass
an amendment to protect the American flag will succeed.

____________________