[Pages S7325-S7336]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. GRAMS;
S. 1245. A bill to allow access for researchers to Continuous Work
History Sample data of the Social Security Administration; to the
Committee on Finance.
social security's continuous work history sample (cwhs)
Mr. GRAMS. Mr. President, I want to take this opportunity to
introduce another Social Security-related bill.
This bill would give all researchers access to Social Security's
Continuous Work History Sample (CWHS).
The access to the CWHS is critical for the general public and other
government agencies to fully evaluate the working of the current system
and estimate the budgetary impact of any changes that need to be made
in the future.
The CWHS is a key set of data which holds information on the work and
benefit histories of Social Security program participants. Until 1976,
this data was widely available to federal, state agencies, universities
and private research groups.
There is no evidence of any misuse of the CWHS in the period before
1976.
The 1976 Tax Reform Act denied access to CWHS data to almost all
users outside of the Internal Revenue Service and the Social Security
Administration.
Although it later extended the access to a few units of government
agencies, private researchers are still denied access. The excuse was
to protect privacy.
However, the IRS is covered by the same law. But it has interpreted
the law to enable it to make samples of individual tax returns
available to researchers on the basis that identifiers must be removed
and the research must be bona fide.
Mr. President, if the IRS can make its data available to researchers,
why cannot the SSA do the same?
Last year, during a Budget Committee hearing, I asked SSA
Commissioner Apfel about this. Here is his reply:
The SSA supports, in principle, the idea of making data
from our administrative records available to researchers in
order to better inform the ongoing debate on the future of
Social Security.
The National Research Council and other academic institutions also
support to give researchers access to the CWHS.
My legislation would amend the 1976 Tax Reform Act to allow bona fide
researchers access to CWHS data, and at the same time protect the
confidentiality and privacy of program participants.
It also requires researchers to sign a legally binding agreement that
restricts use of the data to the research and forbids the disclosure of
information that could be used to identify individuals.
Mr. President, this is ``good government'' legislation. Allowing
access to CWHS data will open the entire Social Security system to
outside scrutiny.
It will significantly improve oversight of the program and enable
Americans to know everything they need to know about how the system
operates and what changes are needed to make it solvent.
I, therefore, urge my colleagues to support these legislative
initiatives.
______
By Mr. TORRICELLI (for himself, Mr. Lieberman and Mr. Dodd):
S. 1246. A bill to amend title 4 of the United States Code to
prohibit the imposition of discriminatory commuter taxes by political
subdivisions of States; to the Committee on Finance.
tax fairness for commuters act
Mr. TORRICELLI. Mr. President, I rise today with my colleagues from
Connecticut, Senator Lieberman and Senator Dodd to introduce the Tax
Fairness for Commuters Act. Last month, Governor Pataki of New York
signed legislation to ``repeal'' the New York City commuter tax.
However, the legislation signed into law only repealed the tax for
residents of New York. The over 300,000 residents of Connecticut and
New Jersey will still be subjected to this tax.
I believe that the lawsuit jointly undertaken by New Jersey and
Connecticut along with the city of New York and affected commuters will
ultimately prevail and this attempt will be proven unconstitutional.
However, I am concerned about the attempted precedent that has been
set.
Our legislation will remove the temptation of any State or any city
to impose higher taxes on non-residents than it does on residents. The
bill is very simple. It says that a State or city may not impose a
higher tax on the income earned by non-residents than it does on
residents. I hope that each Senator, no matter what part of the country
they are from, will recognize the inherent danger in discriminatory
taxes of this nature and will support this effort.
Mr. President, I ask unanimous consent that the text of the
legislation be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1246
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROHIBITION ON IMPOSITION OF DISCRIMINATORY
COMMUTER TAXES BY POLITICAL SUBDIVISIONS OF
STATES.
(a) In General.--Chapter 4 of title 4, United States Code,
is amended by adding at the end the following:
``Sec. 116. Prohibition on imposition of discriminatory
commuter taxes by political subdivisions of States
``A political subdivision of a State may not impose a tax
on income earned within such political subdivision by
nonresidents of the political subdivision unless the
effective rate of such tax imposed on such nonresidents who
are residents of such State is not less than such rate
imposed on such nonresidents who are not residents of such
State.''.
(b) Conforming Amendment.--The table of sections for
chapter 4 of title 4, United States Code, is amended by
adding at the end the following:
``116. Prohibition on imposition of discriminatory commuter taxes by
political subdivisions of States.''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years ending after the date of
enactment of this Act.
Mr. LIEBERMAN. Mr. President, I rise today to join my distinguished
colleague from New Jersey, Senator Torricelli, and my colleague from
Connecticut, Senator Dodd, to introduce legislation that would amend
title 4 of the United States Code to prohibit the imposition of
discriminatory commuter taxes by political subdivisions of States.
[[Page S7326]]
On May 26, 1999, New York Governor George Pataki signed into law a
repeal of the commuter tax for people who work in New York City but
live outside of the five boroughs. This repeal only applies to
residents of New York state; it does not include the 330,000 people
from New Jersey and Connecticut who work in New York City.
In 1966, Governor Nelson Rockefeller and Mayor John Lindsay initiated
the commuter tax. To the present day, New York City has enforced the
0.45% tax on commuters' income much like a payroll tax. Estimates show
that this tax generates $360 million a year in revenue that helps to
supports services such as police and fire protection and emergency
medical care. New York state residents contribute $210 million a year
in commuter tax revenue, while New Jersey and Connecticut residents
account for the remaining $150 million in tax revenue. The commuter tax
repeal eliminates more than $200 million from New York City's annual
tax revenue.
New York State's unilateral, partial repeal of the commuter tax only
for its residents is an unfortunate development after 33 years of
assessing the tax on all commuters who work in New York City. This is
an unprecedented action on the part of a legislative body and state
executive to repeal a tax on its residents but maintain it for non-
residents. The imposition of taxes only on out-of-state commuters could
violate the equal protection clause of the 14th Amendment. Limited
repeal discriminates against out-of-state commuters and inhibits
interstate commerce and travel.
Approximately 86,000 of my constituents work in New York City,
contributing an estimated $100 million in commuter tax revenue; 244,000
New Jersey constituents account for an estimated $50 million in tax
revenue that goes to New York City. According to Connecticut Attorney
General Richard Blumenthal, the taxable income of Connecticut commuters
is lower than non-commuters because of this tax that commuters pay to
New York. The commuter tax essentially draws away millions of dollars
in tax revenue from Connecticut and gives them to New York City to
subsidize services and other public works.
This Connecticut and New Jersey subsidy to New York City is
unacceptable. If a commuter tax is imposed all commuters--whether they
are from Newark, New Rochelle, or New Haven--are equally responsible to
bear it. There is no reason that our commuter constituents should be
paying for New York City services while New York state residents are
not.
Senator Torricelli and I are joined by others who have taken action
to force a repeal of the law passed by the New York state legislature.
Two attorneys, Richard Swanson and Thomas Igoe, filed a complaint in
Manhattan Supreme Court that seeks class-action status for other
commuters from New Jersey and Connecticut. Swanson from New Jersey and
Igoe from Connecticut are colleagues at the Manhattan law firm of
Thelen, Reid & Priest. Moreover, Governor Rowland of Connecticut and
Governor Whitman of New Jersey plan to challenge the constitutionality
of the commuter tax repeal bill in federal courts. New York City Mayor
Rudolph Giuliani also intends to file a lawsuit against the state,
although his claim stands on different grounds than the ones brought
forth by Governors Whitman and Rowland.
The partial commuter tax repeal bill that Governor Pataki signed
includes a provision that says that the tax will be repealed for all
commuters if a partial repeal is found unconstitutional in federal
courts. Even if the lawsuits succeed in their legal challenges, we
still need legislation that will prevent state governments from
discriminating against nonresidents and imposing unfair commuter taxes
in the future.
______
By Mr. GRAMS:
S. 1247. A bill to develop and apply a Consumer Price Index that
accurately reflects the cost-of-living for older Americans who receive
Social Security benefits under title II of the Social Security Act; to
the Committee on Banking, Housing, and Urban Affairs.
fair cost of living adjustment for seniors act of 1999
Mr. GRAMS. Mr. President, 1999 has been declared the ``International
Year of the Older Person'' by the United Nations.
In honor of this special tribute, I rise today to introduce
legislation specially designed to provide fair and accurate Social
Security benefits in order to help all Americans achieve retirement
security.
I believe senior citizens in this country have made, and continue to
make, valuable contributions to their families, communities and to
society as a whole.
One of the most troubling aspects of the debate over Social
Security's future has been attempts to frighten older Americans. Many
seniors fear that they may lose their Social Security benefits.
To ease their fears and worries, I introduced legislation last month
that would require the government to legally guarantee seniors full
Social Security benefits plus accurate COLA adjustments.
In essence, this bill would give older Americans property rights to
their Social Security benefits, which they do not have now. It is no
wonder they now worry about loss of benefits.
However, an accurate method for how we calculate Social Security
remains a subject of debate.
In order to understand this issue, Mr. President, we need to go back
and take a closer look at how seniors' COLAs are currently calculated
by the government.
To compensate for the effects of inflation, Congress passed
legislation in 1972 to give Social Security beneficiaries an automatic
cost of living adjustment, or a COLA.
This COLA is based on the Consumer Price Index (CPI) as tracked and
surveyed by the Bureau of Labor Statistics (BLS) under the Labor
Department.
Currently, the BLS produces two official CPIs, one for All Urban
Consumers called the CPI-U, and one for Urban Wage Earners and Clerical
Workers, called the CPI-W.
The CPI-U represents the spending habits of about 80 percent of the
population of this nation, and the CPI-W is a subset of the formula,
representing about 32 percent of the total population. The government
uses the later the CPI-W to measure COLAs for Social Security benefits.
But clearly, this does not reflect the older American population and
their consumption habits. Spending habits of urban wage earners cannot
be equated with those seniors. Nevertheless, the government continues
to use it calculating COLAs for Social Security beneficiaries.
Back in 1987, after considerable criticism of the CPI-W and its
applicability to senior consumers, Congress amended the Older Americans
Act of 1965 to require the BLS to develop an experimental CPI that
would better reflect the buying habits of consumers 62 years of age or
older. This is now known as the CPI-E.
The CPI-E places greater weight on the cost of such goods and
services as medical care and prescription drugs, areas where seniors
spend more than other Americans.
Although it's still experimental, the preliminary finding shows
annual increases in Social Security benefit payments received by older
Americans are not keeping pace with inflation on the goods and services
on which they spend much of their money.
Over the past 15 years, goods purchased by seniors increased 6
percentage points more than goods purchased by the general public.
Their medical costs skyrocketed 156 percent. The main reason that the
CPI-E has been higher than the other two CPIs.
My concern is, as inflation on medical and pharmaceutical goods
continues to rise, without a fair COLA increase, older Americans' hard-
earned Social Security benefits are worth less and less. Their
purchasing power will continue to diminish.
Mr. President, that's why I am introducing legislation today to
prevent that from happening. My legislation is simple and
straightforward. It first calls for the establishment of a CPI Review
Committee made up of well-known economists who have expertise in the
field, plus representatives of our senior citizens population.
The Committee will be given the task of studying how to analyze and
improve the CPI-E method, make recommendations, and form an
implementation plan to produce a CPI that accurately reflects the
senior population
[[Page S7327]]
and their consumption that will be used to determine the Social
Security COLA each year.
Appointing economic professionals will de-politicize this issue, and
allow us to make sound policy based on merits rather than on political
consideration.
This is also consistent with the measures recommended by the Advisory
Commission to Study the Consumer Price Index, or the Boskin Commission,
which calls for Congress to establish an independent committee or
commission of experts to review progress in developing a new system of
measuring the overall cost of living adjustments.
Within a year, the Committee I recommend is required to complete its
work. A pilot program will test the accuracy of the CPI-E over a 3 year
period by using improved and recommended methods.
However, I must point out that the experimental CPI-E currently
computed by the BLS has limitations. For instance, the number of
consumer units was relatively small, only 19 percent of the total
sample.
Expenditure weights used in the construction of the CPI-E have a
higher sampling error than those used for larger populations.
That's the reason that my legislation specifically instructs the
Committee to remove this and other major limitations. To construct an
improved CPI-E that is more scientific, accurate and representative of
older Americans' spending habits.
We had the right idea in 1987. My legislation will improve on that
law after we've had some time to analyze it.
Now, Mr. President, I know some of my colleagues will raise questions
about this bill.
First, they are going to say, what about the issue of cost? Mr.
President, it is perhaps true that moving from the CPI-W to the
improved CPI-E to determine Social Security COLA increases may increase
federal spending.
As a consistent fiscal conservative, I am concerned about the
budgetary impact. I believe we must exercise caution and discipline on
how government spends our money.
However, the issue of a fair Social Security COLA is not at its root
a fiscal one, but rather an issue of fairness, particularly in the case
of retired workers who rely upon their fixed Social Security pensions
for survival.
I have argued repeatedly that the federal government has entered into
a sacred covenant with the American people to provide benefits for
their retirement if they pay into the system.
We have also committed to give them a fair COLA to keep up with
inflation. It's our moral and contractual duty to honor that
commitment, and to ensure the program will be there for current and
future beneficiaries.
Senior citizens are a unique consumer population that should not be
lumped into a category that considers spending habits the same as the
average American family of four.
Once again, Mr. President, this is an issue of fairness and justice,
not an issue of cost. All my legislation asks for is an accurate CPI
and a fair COLA, up or down.
Second question: if an official CPI-E is created, wouldn't it set a
potentially dangerous precedent for creating a CPI for every seemingly
distinct population group? The answer is no.
Senior citizens comprise nearly 60 percent of Social Security
beneficiaries, and this number will increase substantially as the Baby
Boomer generation retires. Furthermore, the Social Security program is
specifically intended to benefit senior citizens. It's only fair and
rational to create an accurate CPI for them.
However, we have not forgotten that there is another distinct group
of Social Security beneficiaries who receive disability benefits.
Because this group also spends more of their money for medical and
pharmaceutical goods and services, their purchasing power could be
affected by the inaccurate CPI and therefore COLA increase.
My legislation specifically requires the Committee to look into this
issue and make recommendations on how to resolve it.
Third question: would this legislation overlap and contradict the
study conducted by the Boskin Commission? The answer again is no.
On the contrary, my legislation is a complement to the Boskin
Commission report. It parallels the general recommendations of the
Boskin Commission.
These include development of a new Consumer Expenditure Survey that
is larger and therefore more representative of the American consumer;
development of a new market basket of goods and services that can
register changes in the quality of products, the introduction of new
products, and the substitution of less or more expensive goods when
prices change; and development of a point-of-purchase survey that can
register consumer shifts to lower price outlets.
Finally, would this legislation set back Social Security reform
efforts? The answer is no. As I mentioned earlier, it would be wrong to
let Social Security beneficiaries bear the burden of a mistake which is
not of their own making.
In fact, when we give a legal guarantee to older Americans that they
will receive Social Security benefits in full plus a fair COLA increase
and take this fear away from them, it will be much easier to move the
retirement system from a PAYGO system to a fully funded system.
This would in effect secure retirement income for our children and
grandchildren.
In conclusion, Mr. President, retirement security for today's and
tomorrow's seniors is essential to the social stability and economic
prosperity of our society. This is all my legislation attempts to
achieve.
I urge the Senate to make this issue the top priority for the 106th
Congress. Working together, we will meet the demographic challenges and
move towards a society that allows all ages to progress in the new
millennium.
______
By Mr. LOTT (for Mr. McCain (for himself and Mr. Hollings)):
S. 1248. A bill to correct errors in the authorizations of certain
programs administered by the National Highway Traffic Safety
Administration; to the Committee on Commerce, Science, and
Transportation.
legislation to increase the nhtsa authorization level
<bullet> Mr. McCAIN. Mr. President, I rise to introduce legislation
that would increase the authorization level of the National Highway
Traffic Safety Administration. The recently passed TEA-21 legislation
authorized NHTSA at its requested level, approximately $87.4 million.
Although the Department of Transportation requested $87.4 million,
Secretary Slater now informs us that this authorization level will not
permit the funding of key safety initiatives. The bill would increase
the funding levels to approximately $107.8 million. This amount is
consistent with the amount recently reported by the House Commerce
Committee. It is my intention to move this matter quickly in the
committee.
I know that no one in this body wants a situation where highway
safety is degraded in any way. I look forward to working with my
colleagues to address this important issue of highway safety in a
manner that provides the appropriate funding level to meet safety needs
while also meeting our budget obligations and the consensus of the
Appropriations Committee.<bullet>
______
By Mr. TORRICELLI:
S. 1249. A bill to deny Federal public benefits to individuals who
participated in Nazi persecution; to the Committee on the Judiciary.
the nazi benefits termination act of 1998
Mr. TORRICELLI. Mr. President, I rise today to introduce, the Nazi
Benefits Termination Act of 1999. This legislation seeks to halt an
unintended and unwarranted series of public benefits payments to
utlimately deportable individuals who assisted or otherwise
participated in persecution sponsored by the Nazis or their allies
during World War II. The bill also closes a loophole in the current law
which allows some of these deportable individuals to avoid the
suspension of their benefits by fleeing the United States. Such
individuals who illegally gain access to the bounty of the United
States, for example, by misrepresenting the facts of their wartime
conduct, should not be allowed to benefit from their deceit at the
expense of the Treasury, including the Social Security Trust Funds. So
too, individuals
[[Page S7328]]
who avoid entry of an order of deportation or removal by fleeing the
United States should not be permitted to circumvent the intent of the
law at the expense of the Trust Funds.
Recognizing the excellent work of the Department of Justice's Office
of Special Investigations (OSI) in bringing and winning cases against
those who participated in Nazi persecution, the Nazi Benefits
Termination Act of 1999 delegates to the Attorney General the
discretionary authority to initiate proceedings to prohibit the payment
of public benefits to any benefits receipient or applicant whom the
Attorney General has reason to believe may have been a participant in
persecution sponsored by the Nazis or their allies. Although OSI's
success in deporting former Nazi persecutors has resulted in the
cessation of social security benefits payments to numerous persons,
this bill will, among other things, permit termination of benefits even
before (or without) an order of deportation. This bill will apply to
persons eventually subject to deportation who have assisted in Nazi
persecution in any way. Proof by a preponderance of the evidence of
such assistance or other participation in persecution is required. The
Attorney General need not prove that a particular respondent is or was
a war criminal. Rather, this legislation adopts the Seventh Circuit
Court of Appeals' properly broad interpretation of the Holtzman
Amendment (now Sections 212(a)(3)(E) and 237(a)(4)(D) of the
Immigration and Nationality Act) terms ``participated'' or ``assisted''
in persecution. In Schellong v. I.N.S., the Sevneth Circuit properly
interpreted the Holtzman Amendment, which is incorporated into this
bill's statutory standard. The standard set out by the Sixth Circuit in
Petkiewytsch v. I.N.S., ignores the plain language of the Holtzman
Amendment and is specifically rejected by this bill. The Nazi Benefits
Termination Act of 1999, like the Holtzman Amendment, applies to
persons who assisted or otherwise participated in Nazi-sponsored
persecution in any way, and does not require a showing by the
government of personal or direct involvement in atrocities,
voluntariness or motive.
Section 2(b)(2)(B)(1) of the bill is drafted to cover naturalized
citizens whose admission to the United States was unlawful due, inter
alia, to assistance in persecution or who otherwise procured their
citizenship illegally or by concealment of a material fact or
misrepresentation.
Section 3(a) of the legislation provides that Immigration Judges
appointed by the Attorney General pursuant to the procedure established
under the regulations implementing Section 1101(b)(4) of Title 8 will
preside over the benefits hearings established by this bill. The rules,
procedures, and rights applicable in these hearings are to be governed
by the terms of this bill, existing regulations under Title 8, and any
necessary additional implementing regulations.
The preponderance-of-the-evidence burden of proof will apply in
hearings conducted under Section 3(a) of the bill. This standard is
applicable in federal benefits revocation proceedings and most civil
proceedings. Under this standard, we can avoid the delays incident to
assembly of proof in denaturalization and deportation cases brought
against this class, and consequently stem current depletion of the
Treasury.
Section 3(f) of the bill makes clear that findings under section
3(c)(3)(A) of the bill may be based upon the collateral estoppel effect
of denaturalization, deportation, or other appropriate judgments.
It is important to pass this legislation to help protect the public
against unintended and unwarranted waste in paying benefits to
ultimately deportable individuals. This measure will help to conserve
resources so that future generations can continue to rely upon social
security and other necessary public benefits payments.
I hope all my colleagues will be able to support this important
legislation and I ask unanimous consent that the legislation be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1249
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 ``Nazi Benefits Termination
Act of 1999''.
SEC. 2. DENIAL OF FEDERAL PUBLIC BENEFITS TO NAZI
PERSECUTORS.
(a) In General.--Notwithstanding any other provision of
law, an individual who is determined under this Act to have
been a participant in Nazi persecution is not eligible for
any Federal public benefit.
(b) Definitions.--In this Act:
(1) Federal public benefit.--The term ``Federal public
benefit'' shall have the meaning given such term by section
401(c)(1) of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, but shall not include any benefit
described in section 401(b)(1) of such Act (and, for purposes
of applying such section 401(b)(1), the term ``alien'' shall
be considered to mean ``individual'').
(2) Participant in nazi persecution.--The term
``participant in Nazi persecution'' means an individual who--
(A) if an alien, is shown by a preponderance of the
evidence to fall within the class of persons who (if present
within the United States) would be deportable under section
237(a)(4)(D) of the Immigration and Nationality Act; or
(B) if a citizen, is shown by a preponderance of the
evidence--
(i) to have procured citizenship illegally or by
concealment of a material fact or willful misrepresentation
within the meaning of section 340(a) of the Immigration and
Nationality Act; and
(ii) to have participated in Nazi persecution within the
meaning of section 212(a)(3)(E) of the Immigration and
Nationality Act.
SEC. 3. DETERMINATIONS.
(a) Hearing by Immigration Judge.--If the Attorney General
has reason to believe that an individual who has applied for
or is receiving a Federal public benefit may have been a
participant in Nazi persecution (within the meaning of
section 2 of this Act), the Attorney General may provide an
opportunity for a hearing on the record with respect to the
matter. The Attorney General may delegate the conduct of the
hearing to an immigration judge appointed by the Attorney
General under section 101(b)(4) of the Immigration and
Nationality Act.
(b) Procedure.--
(1) Right of respondents to appear.--
(A) Citizens, permanent resident aliens, and persons
present in the united states.--At a hearing under this
section, each respondent may appear in person if the
respondent is a United States citizen, a permanent resident
alien, or present within the United States when the
proceeding under this section is initiated.
(B) Others.--A respondent who is not a citizen, a permanent
resident alien, or present within the United States when the
proceeding under this section is initiated may appear by
video conference.
(C) Rule of interpretation.--This Act shall not be
construed to permit the return to the United States of an
individual who is inadmissible under section 212(a)(3)(E) of
the Immigration and Nationality Act.
(2) Other rights of respondents.--At a hearing under this
section, each respondent may be represented by counsel at no
expense to the Federal Government, present evidence, cross-
examine witnesses, and obtain the issuance of subpoenas for
the attendance of witnesses and presentation of evidence.
(3) Rules of evidence.--Unless otherwise provided in this
Act, rules regarding the presentation of evidence in the
hearing shall apply in the same manner in which such rules
would apply in a removal proceeding before a United States
immigration judge under section 240 of the Immigration and
Nationality Act.
(c) Hearings, Findings and Conclusions, and Order.--
(1) Findings and conclusions.--Within 60 days after the end
of a hearing conducted under this section, the immigration
judge shall make findings of fact and conclusions of law with
respect to whether the respondent has been a participant in
Nazi persecution (within the meaning of section 2 of this
Act).
(2) Order.--
(A) Finding that respondent has been a participant in nazi
persecution.--If the immigration judge finds, by a
preponderance of the evidence, that the respondent has been a
participant in Nazi persecution (within the meaning of
section 2 of this Act), the immigration judge shall promptly
issue an order declaring the respondent to be ineligible for
any Federal public benefit, and prohibiting any person from
providing such a benefit, directly or indirectly, to the
respondent, and shall transmit a copy of the order to any
governmental entity or person known to be so providing such a
benefit.
(B) Finding that respondent has not been a participant in
nazi persecution.--If the immigration judge finds that there
is insufficient evidence for a finding under subparagraph (A)
that a respondent has been a participant in Nazi persecution
(within the meaning of section 2 of this Act), the
immigration judge shall issue an order dismissing the
proceeding.
(C) Effective date; limitation of liability.--
(i) Effective date.--An order issued pursuant to
subparagraph (A) shall be effective on the date of issuance.
(ii) Limitation of liability.--Notwithstanding clause (i),
a person or entity shall not be found to have provided a
benefit to an
[[Page S7329]]
individual in violation of this Act until the person or
entity has received actual notice of the issuance of an order
under subparagraph (A) with respect to the individual and has
had a reasonable opportunity to comply with the order.
(d) Review by Attorney General; Service of Final Order.--
(1) Review by attorney general.--The Attorney General may,
in her discretion, review any finding or conclusion made, or
order issued, under subsection (c), and shall complete the
review not later than 30 days after the finding or conclusion
is so made, or order is so issued. Otherwise, the finding,
conclusion, or order shall be final.
(2) Service of final order.--The Attorney General shall
cause the findings of fact and conclusions of law made with
respect to any final order issued under this section,
together with a copy of the order, to be served on the
respondent involved.
(e) Judicial Review.--Any party aggrieved by a final order
issued under this section may obtain a review of the order by
the United States Court of Appeals for the Federal Circuit by
filing a petition for such review not later than 30 days
after the final order is issued.
(f) Issue and Claim Preclusion.--In any administrative or
judicial proceeding under this Act, the ordinary rules of
issue preclusion and claim preclusion shall apply.
SEC. 4. JURISDICTION OF UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT OVER APPEALS UNDER THIS
ACT.
Section 1295(a) of title 28, United States Code, is
amended--
(1) by striking ``and'' at the end of paragraph (13);
(2) by striking the period at the end of paragraph (14) and
inserting ``; and''; and
(3) by adding at the end the following:
``(15) of an appeal from a final order issued under the
Nazi Benefits Termination Act of 1999.''.
______
By Mr. ROCKEFELLER:
S. 1250. A bill to amend title 38, United States Code, to ensure a
continuum of health care for veterans, to require pilot programs
relating to long-term health care for veterans, and for other purposes;
to the Committee on Veterans' Affairs.
the veterans' long-term care enhancement act of 1999
Mr. ROCKEFELLER. Mr. President, I am pleased to introduce the
``Veterans' Long-Term Care Enhancement Act of 1999.'' There is no doubt
that demand for long-term care--for veterans and non-veterans alike--is
increasing. In the Department of Veterans Affairs (VA), however, we
face an even more pressing demand.
The numbers are staggering. About 34 percent of the total veteran
population is 65 years or older, compared with about 13 percent of the
total United States population. In the year 2000, the number of
veterans aged 65 or older will peak at 9.3 million. In my state of West
Virginia alone, we have approximately 57,000 World War II veterans.
Because VA has already faced considerable demand for long-term care,
it has been forced to become a leader in this field. I am proud of VA's
work in developing geriatric evaluation teams, home-based primary care,
and adult day health care. Our older veterans are leading richer lives
because of these innovations. But to quote from the Report of the
Federal Advisory Committee on the Future of VA Long-Term Care, despite
VA's high quality and long tradition, ``VA long-term care is
marginalized and unevenly funded.''
Frequently I hear from families of World War II combat veterans who
need long-term care because of a debilitating disease, such as
Alzheimer's or Parkinson's, or a stroke. A number of these families do
not have the money to place the veteran in a private nursing home for
the necessary long-term care; and because of the veteran's sacrifices
during World War II, they turn to the VA.
Or I will get a call from a wife of an aging, sick veteran who wants
desperately to keep her husband at home with her, but in order to do
that she needs home health care services, so she turns to the VA.
But when these West Virginian families are told by VA that the
services they need are not available to them, they simply cannot
understand how they could be denied, and they turn to me in despair.
The challenge for all of us, of course, is to find a way to furnish
the appropriate array of services, in a cost efficient way, to all
those needing extended care.
As the Senate Committee on Veterans' Affairs noted in its March 15,
1999, letter to the Budget Committee with the Committee's views on VA's
budget for FY 2000, ``The health care issue that VA must face over the
intermediate term--indeed, the health care issue that the Nation must
face over the next decade--is the need for long-term care among the
aging World War II generation. WWII veterans saved Western
civilization. We cannot turn our backs on them now.''
At the outset, I want to say that my wish would be for VA to provide
long-term care to all veterans who need and want it. While the
legislation I am introducing today is only one step toward determining
what VA should be doing to meet the needs of veterans for long-term
care, I believe that it is an important step in that regard.
There are three key elements in the bill. First, are provisions which
clarify that long-term care is not only nursing home care, and that
existing differences in law between eligibility for institutional long-
term care and other types of care offered by VA do not affect VA's
ability to furnish a full array of noninstitutional long-term care
services.
Specifically, the provision would add ``noninstitutional extended
care services'' to the definition of ``medical services,'' thereby
removing any doubt about VA's authority to furnish such services to
veterans eligible for and enrolled in VA care. The term would be
defined to include the following: home-based primary care; adult day
health care; respite care; palliative and end-of-life care; and
homemaker or home health aide visits.
Second, the bill would add clear authority for VA to furnish assisted
living services, including to the spouses of veterans. VA already
furnishes a form of assisted living services through its domiciliary
care program, but the provision in the bill would provide express
authority to furnish this modality of care to older veterans, thereby
expanding the continuum of extended care services offered by VA.
Third, VA would be mandated to carry out a series of pilot programs,
over a period of three years, which would be designed to gauge the best
way for VA to meet veterans' long-term care needs--either directly,
through cooperative arrangements with community providers, or by
purchasing services from non-VA providers.
While VA has developed significant expertise in long-term care over
the past 20-plus years, it has not done so with any mandate to share
its learning with others, nor has it pushed its program development
beyond that which met the current needs at the time. Some experts even
believe that VA's expertise is gradually eroding.
For VA's expertise to be of greatest use to others, it needs both to
better capture what it has done and to develop new learning that would
be most applicable to other health care entities.
Those who would benefit by further action to develop and capitalize
on VA's long-term care expertise include older veterans, primarily our
honored World War II veterans; those health organizations, including
academic medicine and research entities, with which VA is now
connected; and finally, the rest of the U.S. health care system, and
ultimately all Americans who will need some form of long-term care
services.
Each element of the pilot program would establish and carry out a
comprehensive long-term care program, with a full array of services,
ranging from inpatient long-term care--in intermediate care beds, in
nursing homes, and in domiciliary care facilities--to comprehensive
noninstitutional services, which include hospital-based home care,
adult day health care, personal assistance services, respite care, and
other community-base interventions.
In each element of the pilot programs, VA would also be mandated to
furnish case management services, to ensure that veterans participating
in the pilot programs receive the optimal treatment and placement for
services. Some form of assisted living services for veterans and their
families would be provided, as well. Preventive health care services,
such as screening and patient education, and a particular focus on end-
of-life care are also emphasized. In my view, VA must have ready access
to all of these services.
As part of the pilot program, VA would be encouraged to seek the
involvement of State Veterans Homes, so
[[Page S7330]]
as to draw them into noninstitutional approaches to long-term care. Our
State Veterans Homes are valuable assets.
Finally, a key purpose of the pilot program would be to test and
evaluate various approaches to meeting the long-term care needs of
eligible veterans, both to develop approaches that could be expanded
across VA, as well as to demonstrate to others outside of VA the
effectiveness and impact of various approaches to long-term care. To
this end, the pilot program within in the ``Veterans' Long-Term Care
Enhancement Act of 1999'' would include specific data collection on
matters such as cost effectiveness, quality of health care services
provided, enrollee and health care provider satisfaction, and the
ability of participants to carry out basic activities of daily living.
From this effort, a number of things would result. First, VA would
gain more precise information on exactly which services to offer, how
best to coordinate those services, and the relative cost and
effectiveness of various services. There is no doubt that our veterans
would benefit from such findings.
Second, there would be a concrete demonstration of the feasibility of
furnishing a coordinated range of long-term care services, which in
turn could lead to a greater likelihood that such an approach would be
shared with, and replicated by, others.
Third, the value of such an approach, measured in quality of care,
quality of life, cost effectiveness, and patient and provider
satisfaction would be demonstrated, thereby promoting its use by
others.
Mr. President, I look forward to working with the chairmen and the
members of the Committees on Veterans' Affairs--in both the House of
Representatives and the Senate--to advance the cause of long-term care
in VA.
Mr. President, I ask unanimous consent that the full text of the bill
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1250
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 ``Veterans' Long-Term Care
Enhancement Act of 1999''.
SEC. 2. CONTINUUM OF CARE FOR VETERANS.
(a) Inclusion of Noninstitutional Extended Care Services in
Definition of Medical Services.--Section 1701 of title 38,
United States Code, is amended--
(1) in paragraph (6)(A)(i), by inserting ``noninstitutional
extended care services,'' after ``preventive health
services,''; and
(2) by adding at the end the following new paragraphs:
``(10) The term `noninstitutional extended care services'
includes--
``(A) home-based primary care;
``(B) adult day health care;
``(C) respite care;
``(D) palliative and end-of-life care; and
``(E) homemaker or home health aide visits.
``(11) The term `respite care' means hospital or nursing
home care which--
``(A) is of limited duration;
``(B) is furnished on an intermittent basis to an
individual who is suffering from a chronic illness and who
resides primarily at home; and
``(C) is furnished for the purpose of helping the
individual to continue residing primarily at home.''.
(b) Assisted Living.--Subchapter II of chapter 17 of such
title is amended by adding at the end the following new
section:
``Sec. 1720F. Assisted living
``(a) The Secretary may, subject to subsection (b), provide
assisted living services to a veteran who is eligible to
receive care under section 1710 of this title and to the
spouse of such veteran in connection with the provision of
such services to such veteran.
``(b) The Secretary may not provide assisted living
services under this section to a veteran eligible to receive
care under section 1710(a)(3) of this title, or to a spouse
of any veteran, unless such veteran or spouse agrees to pay
the United States an amount equal to the cost, as determined
in regulations prescribed by the Secretary, of the provision
of such services.
``(c) For purposes of this section, the term `assisted
living services' means services which provide personal care,
activities, health-related care, supervision, and other
assistance on a 24-hour basis within a residential or similar
setting which--
``(1) maximizes flexibility in the provision of such care,
activities, supervision, and assistance;
``(2) maximizes the autonomy, privacy, and independence of
an individual; and
``(3) encourages family and community involvement with the
individual.''.
(c) Conforming Amendments.--(1)(A) Section 1720 of such
title is amended by striking subsection (f).
(B) The section heading of such section is amended by
striking ``; adult day health care''.
(2) Section 1720B of such title is repealed.
(d) Clerical Amendments.--The table of sections for chapter
17 of such title is amended--
(1) in the item relating to section 1720, by striking ``;
adult day health care'';
(2) by striking the item relating to section 1720B; and
(3) by inserting after the item relating to section 1720E
the following new item:
``1720F. Assisted living.''.
SEC. 3. PILOT PROGRAMS RELATING TO LONG-TERM CARE OF
VETERANS.
(a) In General.--The Secretary of Veterans Affairs shall
carry out three pilot programs for the purpose of determining
the feasibility and practicability of a variety of methods of
meeting the long-term care needs of eligible veterans. The
pilot programs shall be carried out in accordance with the
provisions of this section.
(b) Locations of Pilot Programs.--(1) Each pilot program
under this section shall be carried out at two Veterans
Integrated Service Networks (VISNs) selected by the Secretary
for purposes of this section.
(2) The Secretary may not carry out more than one pilot
program in any given Veterans Integrated Service Network.
(c) Scope of Services Under Pilot Programs.--(1) The
services provided under the pilot programs under this section
shall include a comprehensive array of health care services
and other services that meet the long-term care needs of
veterans, including--
(A) inpatient long-term care in intermediate care beds, in
nursing homes, and in domiciliary care facilities;
(B) noninstitutional long-term care, including hospital-
based primary care, adult day care, personal assistance
services, respite care, and other community-based
interventions and care; and
(C) assisted living services for veterans and their
families.
(2) As part of the provision of services under the pilot
programs, the Secretary shall also provide appropriate case
management services.
(3) In providing services under the pilot programs, the
Secretary shall emphasize the provision of preventive care
services, including screening and education.
(d) Direct Provision of Services.--Under one of the pilot
programs under this section, the Secretary shall provide
long-term care services to eligible veterans directly through
facilities and personnel of the Department of Veterans
Affairs.
(e) Provision of Services Through Cooperative
Arrangements.--(1) Under one of the pilot programs under this
section, the Secretary shall provide long-term care services
to eligible veterans through a combination (as determined by
the Secretary) of--
(A) services provided under cooperative arrangements with
appropriate public and private non-Governmental entities,
including community service organizations; and
(B) services provided through facilities and personnel of
the Department.
(2) The consideration provided by the Secretary for
services provided by entities under cooperative arrangements
under paragraph (1)(A) shall be limited to the provision by
the Secretary of appropriate in-kind services to such
entities.
(f) Provision of Services by Non-Department Entities.--(1)
Under one of the pilot programs under this section, the
Secretary shall provide long-term care services to eligible
veterans through arrangements with appropriate non-Department
entities under which arrangements the Secretary acts solely
as the case manager for the provision of such services.
(2) Payment for services provided to veterans under the
pilot programs under this subsection shall be as follows:
(A) By the medicare program or the medicaid program, but
only--
(i) if the veterans concerned are entitled to benefits
under such programs; and
(ii) to the extent that payment for such services is
provided for under such programs.
(B) By the Department, to the extent that payment for such
services is not otherwise provided for under subparagraph
(A).
(g) Data Collection.--As part of each pilot program under
this section, the Secretary shall collect data regarding--
(1) the cost-effectiveness of such program, including any
savings achieved under such program when compared with the
medicare program, medicaid program, or other Federal program
serving similar populations;
(2) the quality of the services provided under such
program;
(3) the satisfaction of participating veterans, non-
Department, and non-Government entities with such program;
and
(4) the effect of such program on the ability of veterans
to carry out basic activities of daily living over the course
of such veterans' participation in such program.
(h) Reports.--(1) The Secretary shall annually submit to
Congress a report on the pilot programs under this section.
(2) Each report under paragraph (1) shall include the
following:
(A) A detailed description of activities under the pilot
programs during the one-year period ending on the date of the
report.
(B) An evaluation of the data collected under subsection
(g) during that period.
[[Page S7331]]
(C) Any other matters regarding the programs that the
Secretary considers appropriate.
(i) Duration of Programs.--(1) The Secretary shall commence
carrying out the pilot programs required by this section not
later than 90 days after the date of the enactment of this
Act.
(2) The authority of the Secretary to provide services
under the pilot programs shall cease on the date that is
three years after the date of the commencement of the pilot
programs under paragraph (1).
(j) Definitions.--In this section:
(1) The term ``eligible veteran'' means the following:
(A) Any veteran entitled to hospital care and medical
services under section 1710(a)(1) of title 38, United States
Code.
(B) Any veteran (other than a veteran described in
subparagraph (A)) if the veteran is enrolled in the system of
annual patient enrollment under section 1705 of title 38,
United States Code.
(2) The term ``long-term care needs'' means the need by an
individual for any of the following services:
(A) Personal care.
(B) Nursing home and home health care services.
(C) Habilitation and rehabilitation services.
(D) Adult day care services.
(E) Case management services.
(F) Social services.
(G) Assistive technology services.
(H) Home and community based services, including assistive
living.
______
By Mr. DORGAN (for himself, Mr. Bingaman, and Mr. Byrd):
S. 1252. A bill to provide parents, taxpayers, and educators with
useful, understandable school reports; to the Committee on Health,
Education, Labor, and Pensions.
standardized school report card act
Mr. DORGAN. Madam President, I am introducing today a piece of
legislation called the Standardized School Report Card Act, along with
my colleagues, Senator Bingaman and Senator Byrd.
Every 6 to 9 weeks every parent in this country who has children in
our public schools gets a report card to tell him or her how that
student is doing in school.
Rarely, however, do parents get a report card telling them how the
school is doing for the students.
A number of States already do have school report cards--about 36,
actually--but they vary around the country. Some have almost no
information. Others are hundreds of pages long and very difficult to
understand. Regardless, however, most parents never see a report card
for their child's school.
I think it would be useful, and my colleagues do as well, to ask that
there be a uniform or standardized school report card that will allow
parents to understand what they are getting for the dollars they are
investing in that school. What is their school doing versus the
neighboring town's school? How are the schools in one State doing
versus schools in another State? How can you compare what the parents
and taxpayers are getting with respect to the dollars invested in
education?
The Standardized School Report Card Act will require schools to
report on eight key, basic areas in their report card and do so in an
easily understandable manner.
The eight areas graded in the report cards would be: students'
performance, attendance and graduation rates, professional
qualifications of teachers, average class size, school safety, parental
involvement, student drop-out rates, and access to technology.
Some might say this legislation is unnecessary because there are
already some States that do have school report cards. As I have already
indicated, that is true. However, the content varies widely, so they
are not good tools for comparison.
In my home State of North Dakota, the State Department of Public
Instruction has designed a school district profile that is published
for each school district. It does include a lot of interesting
information, but a numbers of areas that are required under this
legislation are not covered at all.
My point is that we have a public education system in this country on
which we spend a great deal of money. We send our young boys and girls
to the classroom door, and we invest money, we build the schools, pay
teachers, and buy the books. The question is, What do we get for all of
that?
Most of the classrooms I have visited are led and taught by wonderful
teachers. I am very impressed by many of the schools I have had an
opportunity to visit across the country and especially in North Dakota.
As a nation, when we spend $350 billion a year to provide an education
to elementary and secondary students, parents and taxpayers need some
uniform way to understand how there school is doing versus other
schools. How is our State doing versus other States relative to the
investments we are making in education?
That is the basis for the school report card legislation which I am
introducing today. I am pleased to be joined by Senators Bingaman and
Byrd in introducing this bill, and I hope others of our colleagues will
join us in cosponsoring it.
Mr. BINGAMAN. Mr. President, I am pleased to join my distinguished
colleagues, Senators Dorgan and Byrd, in introducing the Standardized
School Report Card Act. This bill would require States and schools to
distribute an annual, easy-to-read report card to parents, taxpayers,
educators, and the public. One of the top issues facing the nation's
education system is the need for greater accountability and the need
for greater parent involvement in schools. The bill we are introducing
today will go a long way in helping to achieve these goals.
In our efforts to make schools accountable for the resources they are
given, we must develop better means for measuring and communicating
progress in our schools; if we cannot measure progress, we cannot
attain it. Our bill would require each school to report several key
measures of progress. The bill would require reports of student
performance in language arts and mathematics, as well as any other
subject areas in which the State requires assessment. The report cards
would breakdown student data by gender, major racial and ethnic groups,
English proficiency, migrant status, disability status, and economic
status. In this way, we can ensure that our schools are meeting the
needs of all students and that all students are being taught to the
same high standards. I also requested that the bill require reporting
of dropout rates, because our educational system needs to do everything
possible to keep our children in school until graduation. Many States
with report cards do not currently report this measure of educational
progress. Obviously, we are not making much progress if our children
are giving up prior to graduation. We need to target our efforts to
ensure that our children stay in school and an important step in
achieving that goal is to monitor and raise awareness of the problem.
The report cards required in this bill also would provide parents and
taxpayers with valuable information regarding the resources available
and environment at each school. Our bill would require schools to
report average class sizes and student access to technology, including
the number of computers for educational purposes, the number of
computers per classroom, and the number of computers connected to the
Internet. In addition, schools would be required to report measures of
school safety, including the safety of school facilities and incidents
of school violence, and measures of parental involvement. Based on this
information, parents--as consumers of public education--can make
informed decisions about their children's education and monitor how
public resources are being used in their community.
Last session, I introduced an amendment to the Higher Education Act--
which was ultimately passed and signed into law--which requires
colleges of education to report their performance in producing
qualified teachers. That effort will help to ensure that teachers
coming into a school system have been properly prepared to teach. The
bill we are introducing today will build on that legislation, by
holding states and schools district accountable for the training, level
of preparation, and proper placement of new teachers as well as
teachers already in the system. Under the Standardized Report Card Act,
schools would be required to report the professional qualifications of
its teachers, including the number of teachers teaching out of field
and the number of teachers with emergency certification.
I have spoken with many parents in my home state of New Mexico about
[[Page S7332]]
their role in the public education system. These parents are eager to
support their local schools and participate in their children's
education. But in order to do this, they need to be better informed
about how schools are performing and what resources are being devoted
to each school.
With over $350 billion spent each year on education, parents and
taxpayers deserve to know how their schools are performing. We owe it
to them and to ourselves to provide public measures of progress which
will assist our communities in their efforts to improve our systems of
education. Mr. President, I ask my colleagues to join me by supporting
the standardized School Report Card Act.
______
By Mr. INOUYE (for himself, Mr. Akaka, Mr. Hollings, Mr. Kerry,
and Mr. Breaux, and Mrs. Boxer):
S. 1253. A bill to authorize the Secretary of Commerce, through the
National Oceanic and Atmospheric Administration, to provide financial
assistance for coral reef conservation projects, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
coral reef protection act of 1999
Mr. INOUYE. Mr. President, I rise today to introduce the Coral Reef
Protection Act of 1999.
This legislation will provide one hundred million dollars over a
period of five years to preserve, sustain and restore the health of
U.S. coral reef ecosystems; assist in the conservation and protection
of coral reefs by supporting conservation programs; and provide
financial resources for those programs. Additionally, this legislation
will leverage the federal dollars appropriated for these purposes by
establishing a formal mechanism for collecting and allocating matching
monetary donations from the private sector to be used for coral reef
conservation projects.
The United States has substantial coral reef holdings in both the
Atlantic and Pacific Oceans totaling more than 6,500 square miles. More
than 83% of these reefs lie among the islands of Hawaii and another 10%
of them live among the other American islands in the Pacific including
American Samoa, Johnston Island, Palmyra Atoll, and the Northern
Mariana Islands. Hawaii, alone, is home to 47 different species of
coral. These coral reefs provide numerous recreational opportunities,
are linked ecologically to adjacent coastal ecosystems such as
mangroves and sea grasses, support substantial biodiversity, and
protect shorelines from wave damage. They also support major economic
activities, such as tourism and fishing, in coastal communities that
generate billions of dollars annually. Despite this importance to both
the environment and the American economy, little is currently known
about the condition of coral reefs in the United States. Two points,
however, are clear: coral reefs are threatened whenever they are close
to large concentrations of people, and coral reefs are in decline.
This legislation will provide funding for research, conservation and
restoration of these extremely important resources and will complement
the efforts of the President's Coral Reef Task Force which was
established by Executive Order last year. I ask that the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1253
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 ``Coral Reef Protection Act of
1999''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Coral reefs and coral reef ecosystems are considered
the marine equivalent of tropical rain forests, containing
some of the planet's richest biological diversity, habitats,
and systems and supporting thousands of fish, invertebrates,
reef algae, plankton, sea grasses, and other species.
(2) Coral reefs and coral reef ecosystems have great
commercial, recreational, cultural, and esthetic value to
human communities as shoreline protection, areas of natural
beauty, and sources of food, pharmaceuticals, jobs, and
revenues through a wide variety of activities, including
education, research, tourism, and fishing.
(3) Studies indicate that coral reefs in the United States
and around the world are being degraded and severely
threatened by human and environmental impacts including land-
based pollution, overfishing, destructive fishing practices,
vessel groundings, and climate change.
(4) Since 1994, under the United States Coral Reef
Initiative, Federal agencies, State, local, territorial,
commonwealth, and local governments, nongovernmental
organizations, and commercial interests have worked together
to design and implement additional management, education,
monitoring, research, and restoration efforts to conserve
coral reef ecosystems.
(5) 1997 was recognized as the Year of the Reef to raise
public awareness about the importance of conserving coral
reefs and to facilitate actions to protect coral reef
ecosystems.
(6) On October 21, 1997, the 105th Congress passed House
Concurrent Resolution 8, a concurrent resolution recognizing
the significance of maintaining the health and stability of
coral reef ecosystems by promoting comprehensive stewardship
for coral reef ecosystems, discouraging unsustainable
fisheries or other practices harmful to coral reefs,
encouraging research, monitoring, assessment of, and
education on coral reef ecosystems, improving coordination of
coral reef efforts and activities of Federal agencies,
academic institutions, nongovernmental organizations, and
industry, and promoting preservation and sustainable use of
coral reef resources worldwide.
(7) 1998 was declared to be the International Year of the
Ocean to raise public awareness and increase actions to
conserve and use in a sustainable manner the broader ocean
environment, including coral reefs.
(8) On June 11, 1998, President William Jefferson Clinton
signed Executive Order 13089 (64 Fed. Reg. 323701) which
recognizes the importance of conserving coral reef
ecosystems, establishes the Coral Reef Task Force under the
joint leadership of the Departments of Commerce and Interior,
and directs Federal agencies whose actions may affect United
States coral reef ecosystems to take steps to protect,
manage, research, and restore such ecosystems.
(9) The Nation benefits from--
(A) specific actions and programs involving coral reefs and
coral reef ecosystems including National Marine Sanctuaries,
National Wildlife Refuges, National Parks, and other marine
protected areas that conserve for future generations vital
marine resources, ecosystems, and habitats;
(B) the identification of coral habitats as essential fish
habitat under the Magnuson-Stevens Fishery Conservation and
Management Act, which requires aggressive efforts to minimize
adverse effects on such habitat caused by fishing;
(C) identification of other actions to encourage the
conservation and enhancement of such habitat; and
(D) State and territorial coastal management programs for
the protection, development, and where possible, restoration
and enhancement of the resources of the Nation's coastal zone
for this and succeeding generations under the Coastal Zone
Management Act and other related statutes.
(10) Legislation solely dedicated to the comprehensive and
coordinated conservation, management, protection, and
restoration of coral reefs and coral reef ecosystems would
supplement Executive Order 13089 and House Concurrent
Resolution 8, and complement the management, protection, and
conservation provided by such programs as those administered
under the National Marine Sanctuaries Act, Coastal Zone
Management Act, and Magnuson-Stevens Fishery Conservation and
Management Act, as well as those administered by other
Federal, State, and territorial agencies.
SEC. 3. POLICY.
It is the policy of the United States--
(1) to conserve and protect the ecological integrity of
coral reef ecosystems;
(2) to maintain the health, natural conditions, and
dynamics of those ecosystems;
(3) to reduce and remove human stresses affecting reefs;
(4) to restore coral reef ecosystems injured by human
activities; and
(5) to promote the long-term sustainable use of coral reef
ecosystems.
SEC. 4. PURPOSES.
The purposes of this Act are--
(1) to preserve, sustain, and restore the health of coral
reef ecosystems;
(2) to assist in the conservation and protection of coral
reefs by supporting conservation programs;
(3) to provide financial resources for those programs; and
(4) to establish a formal mechanism for collecting and
allocating monetary donations from the private sector to be
used for coral reef conservation projects.
SEC. 5. DEFINITIONS.
In this Act:
(1) Coral.--The term ``coral'' means species of the phylum
Cnidaria, including--
(A) all species of the orders Antipatharia (black corals),
Scleractinia (stony corals), Alcyonacea (soft corals),
Gorgonacea (horny corals), Stolonifera (organpipe corals and
others), and Helioporacea (blue coral) of the class Anthozoa;
and
(B) all species of the order Hydrocorallina (fire corals
and hydrocorals) of the class Hydrozoa.
(2) Coral reef.--The term ``coral reef'' means any reef,
shoal, or other natural feature composed primarily of the
solid skeletal structures in which stony corals are major
framework constituents, within all maritime areas and zones
subject to the jurisdiction or
[[Page S7333]]
control of the United States (e.g. Federal, State,
territorial, or commonwealth waters), including in the south
Atlantic, Caribbean, Gulf of Mexico, and Pacific Ocean.
(3) Coral reef ecosystem.--The term ``coral reef
ecosystem'' means the interacting complex of species
(including reef plants of the phlya Chlorophyta, Phaeophyta,
and Rhodophyta) and nonliving variables associated with coral
reefs and their habitats which--
(A) function as an ecological unit in nature; and
(B) are mutually dependent on this function to continue.
(4) Conservation.--The term ``conservation'' means the use
of methods and procedures necessary to preserve or sustain
coral reefs and coral reef ecosystems as diverse, viable, and
self-perpetuating ecosystems, including--
(A) all activities associated with resource management,
such as assessment, science, conservation, protection,
restoration, sustainable use, management of habitat, and
water quality;
(B) habitat monitoring;
(C) assistance in the development of management strategies
for marine protected areas and marine resources consistent
with the National Marine Sanctuaries Act (16 U.S.C. 1431 et
seq.) and the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C.1801 et seq.) and other Federal,
State, and territorial statutes;
(D) law enforcement;
(E) conflict resolution initiatives;
(F) community outreach and education; and
(G) promotion of safe and ecologically sound navigation.
(5) Person.--The term ``person'' has the meaning given that
term by section 1 of title 1, United States Code, but
includes departments, agencies, and instrumentalities of the
United States Government or any State or local government.
(6) Foundation.--The term ``foundation'' means any
qualified non-profit organization that specializes in natural
resource conservation.
(7) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(8) State.--The term ``State'' means any coastal State of
the United States that contains coral within its seaward
boundaries, and American Samoa, Guam, the Northern Mariana
Islands, Puerto Rico, and the U.S. Virgin Islands, and any
other commonwealth, territory, or possession of the United
States that contains coral within its seaward boundaries.
SEC. 6. CORAL REEF RESTORATION AND CONSERVATION PROGRAM.
(a) Financial Assistance.--The Secretary subject to the
availability of funds, may provide financial assistance for
projects that--
(1) provide for the restoration of degraded or injured
coral reefs or coral reef ecosystems, including developing
and implementing cost-effective methods to restore or enhance
degraded or injured coral reefs and coral reef ecosystems; or
(2) provide for the conservation of coral reefs or coral
reef ecosystems through projects other than those under
paragraph (1), that provide for the management, conservation,
and protection of coral reefs and coral reef ecosystems,
including mapping and assessment, management, protection
(including enforcement), scientific research, and short-term
and long-term monitoring that benefits the long-term
conservation of coral reefs and coral reef ecosystems.
(b) Matching Requirements.--
(1) 75-percent federal funding.--Except as provided in
paragraph (2), Federal funds for any project under this
section shall not exceed 75 percent of the total cost of such
project. In calculating that percentage, the non-Federal
share of project costs may be provided by in-kind
contributions and other noncash support.
(2) Exceptions.--
(A) Small projects.--There are no matching requirements for
grants under subsection (a) for projects costing not more
than $25,000.
(B) Higher level of support required.--If the Secretary
determines that a proposed project merits support and cannot
be undertaken without a higher rate of Federal support, then
the Secretary may approve grants under this section with a
matching requirement other than that specified in paragraph
(1).
(c) Eligibility.--Any relevant natural resource management
authority of a State or territory of the United States or
other government authority with jurisdiction over coral reefs
or whose activities directly or indirectly affect coral reefs
or coral reef ecosystems, or educational or non-governmental
institutions with demonstrated expertise in the conservation
of coral reefs, may submit a coral reef restoration or
conservation proposal to the Secretary under subsection (a).
(d) Allocation.--The Secretary shall ensure that financial
assistance provided under subsection (a) during a fiscal year
is distributed so that--
(1) not less than 40 percent of the funds available are
awarded for coral reef restoration and conservation projects
in the Pacific Ocean;
(2) not less than 40 percent of the funds available are
awarded for coral reef restoration and conservation projects
in the Atlantic Ocean, the Gulf of Mexico, and the Caribbean
Sea; and
(3) remaining funds are awarded for coral reef restoration
and conservation projects that address emerging priorities or
threats identified by the Secretary in consultation with the
Coral Reef Task Force under subsection (j).
(e) Project Proposals.--Each proposal for a grant under
this section shall include the following:
(1) The name of the individual or entity responsible for
conducting the project.
(2) A succinct statement of the purposes of the project.
(3) A description of the qualifications of the individuals
who will conduct the project.
(4) An estimate of the funds and time required to complete
the project.
(5) Evidence of support of the project by appropriate
representatives of States or territories of the United States
or other government jurisdictions in which the project will
be conducted.
(6) Information regarding the source and amount of matching
funding available to the applicant, as appropriate.
(7) A description of how the project meets one or more of
the criteria in subsection (g) of this section.
(8) Any other information the Secretary considers to be
necessary for evaluating the eligibility of the project for
funding under this Act.
(f) Project Review and Approval.--
(1) In general.--The Secretary shall review each final
coral reef conservation project proposal to determine if it
meets the criteria set forth in subsection (g).
(2) Review; approval or disapproval.--Not later than 3
months after receiving a final project proposal under this
section, the Secretary shall--
(A) request written comments on the proposal from each
Federal, State or territorial agency of the United States and
other government jurisdictions, including the relevant
regional fishery management councils established under the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.), or any National Marine Sanctuary, with
jurisdiction or management authority over coral reefs or
coral reef ecosystems in the area where the project is to be
conducted, including the extent to which the project is
consistent with locally-established priorities;
(B) for projects costing less than $25,000, provide for
expedited peer review of the proposal;
(C) for projects costing $25,000 or greater, provide for
the regional, merit-based peer review of the proposal and
require standardized documentation of that peer review;
(D) after considering any written comments and
recommendations based on the reviews under subparagraphs (A)
and (B), approve or disapprove the proposal; and
(E) provide written notification of that approval or
disapproval to the person who submitted the proposal, and
each of those States, territories, and other government
jurisdictions.
(g) Criteria for Approval.--The Secretary may approve a
final project proposal under this section based on the
written comments received and the extent that the project
will enhance the conservation of coral reefs by--
(1) implementing coral reef conservation programs which
promote sustainable development and ensure effective, long-
term conservation of coral reefs;
(2) addressing the conflicts arising from the use of
environments near coral reefs or from the use of any living
or dead specimens, port, or derivatives, or any product
containing specimens, ports, or derivatives, of any coral or
coral reef ecosystem;
(3) enhancing compliance with laws that prohibit or
regulate the taking of corals, species associated with coral
reefs, and coral products or regulate the use and management
of coral reef ecosystems;
(4) developing sound scientific information on the
condition of coral reef ecosystems or the threats to such
ecosystems;
(5) promoting cooperative projects on coral reef
conservation that involve affected local communities, non-
governmental organizations, or others in the private sector;
or
(6) increasing public knowledge and awareness of coral reef
ecosystems and issues regarding their long term conservation.
(h) Implementation Guidelines.--Within 90 days after the
date of enactment of this Act, the Secretary shall promulgate
necessary guidelines for implementing this section. In
developing those guidelines, the Secretary shall consult with
regional and local entities, including States and
territories, involved in setting priorities for conservation
of coral reefs.
(i) Technical Assistance.--The Secretary may provide
technical assistance to any State or Federal agency with
jurisdiction over coral reefs and coral reef ecosystems to
further the purposes of this Act.
(j) Coral Reef Task Force.--The Secretary shall consult
with the Coral Reef Task Force established under Executive
Order 13089 (64 Fed. Reg. 323701), to obtain guidance in
establishing coral reef conservation project priorities under
this section.
SEC. 7. NATIONAL PROGRAM.
(a) In General.--The Secretary may conduct activities that
further the conservation of coral reefs or coral reef
ecosystems on a regional, national, or international scale,
or that further public awareness and education regarding
coral reefs and coral reef ecosystems on a regional,
national, or international scale. The activities should
supplement and be consistent with the programs, policies, and
statutes of affected States and territories, the National
Marine Sanctuaries
[[Page S7334]]
Act, the Coastal Zone Management Act, and the Magnuson-
Stevens Fishery Conservation and Management Act, other
applicable Federal statutes, and, at a minimum, should
include mapping and assessment, monitoring, management, and
scientific research that benefits the long-term conservation
of coral reefs and coral reef ecosystems.
(b) Financial Assistance.--The Secretary may enter into
joint projects with any Federal, State, territorial, or local
authority, or provide financial assistance to any person for
projects consistent with subsection (a), including projects
that--
(1) support, promote, and coordinate the assessment of,
scientific research on, monitoring of, or restoration of
coral reefs and coral reef ecosystems of the United States;
(2) cooperate with global programs that conserve, manage,
protect, and study coral reefs and coral reef ecosystems; or
(3) enhance public awareness, understanding, and
appreciation of coral reefs and coral reef ecosystems.
SEC. 8. DOCUMENTATION OF CERTAIN VESSELS.
Section 12102 of title 46, United States Code, is amended
by adding at the end thereof the following:
``(e) A vessel otherwise eligible to be documented under
this section may not be documented as a vessel of the United
States if--
``(1) the owner of the vessel has abandoned any vessel on a
coral reef located in waters subject to the jurisdiction of
the United States; and
``(2) the abandoned vessel remains on the coral reef or was
removed from the coral reef under section 5 or 6 of the Coral
Reef Protection Act of 1999 (or any other provision of law in
pari materia enacted after 1998),
unless the owner of the vessel has reimbursed the United
States for environmental damage caused by the vessel and the
funds expended to remove it.''.
SEC. 9. CERTAIN GROUNDED VESSELS.
(a) In General.--The vessels described in subsection (b),
and the reefs upon which such vessels may be found, are
hereby designated for purposes of section 104 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9604) as a site at which
there is a substantial threat of release of a hazardous
substance into the environment. For purposes of that Act, the
site shall not be considered to have resulted from an act of
God.
(b) Description of Site.--The vessels to which subsection
(a) applies are 9 fishing vessels driven by Typhoon Val in
1991 onto coral reefs inside Pago Pago harbor near the
villages of Leloaloa and Aua.
SEC. 10. REGULATIONS; CORAL REEF CONSERVATION FUND.
(a) Regulations.--Within 90 days after the date of
enactment of this Act, the Secretary shall promulgate
necessary regulations for implementing this section. In
developing those regulations, the Secretary shall consult
with regional and local entities, including States and
territories, involved in setting priorities for conservation
of coral reefs.
(b) Fund.--The Secretary may enter into an agreement with a
foundation authorizing the foundation to receive, hold, and
administer funds received by the foundation pursuant to this
section. The foundation shall invest, reinvest, and otherwise
administer the funds and maintain such funds and any interest
or revenues earned in a separate interest bearing account,
hereafter referred to as the Fund, established by the
foundation solely to support partnerships between the public
and private sectors that further the purposes of this Act.
(c) Authorization to Solicit Donations.--Consistent with
section 3703 of title 16, United States Code, and pursuant to
the agreement entered into under subsection (b) of this
section, a foundation may accept, receive, solicit, hold,
administer, and use any gift or donation to further the
purposes of this Act. Such funds shall be deposited and
maintained in the Fund established by a foundation under
subsection (b) of this section.
(d) Review of Performance.--The Secretary shall conduct a
continuing review of the grant program administered by a
foundation under this section. Each review shall include a
written assessment concerning the extent to which that
foundation has implemented the goals and requirements of this
section.
(e) Administration.--Under the agreement entered into
pursuant to subsection (b) of this section, the Secretary may
transfer funds appropriated under section 11(b)(1) to a
foundation. Amounts received by a foundation under this
subsection may be used for matching, in whole or in part,
contributions (whether in currency, services, or property)
made to the foundation by private persons and State and local
government agencies.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary $20,000,000 for each of
fiscal years 2000, 2001, 2002, 2003, and 2004 to carry out
this Act, which may remain available until expended.
(b) Use of Amounts Appropriated.--
(1) Restoration and conservation projects.--Not more than
$15,000,000 of the amounts appropriated under subsection (a)
shall be used by the Secretary to support coral reef
restoration and conservation projects under section 6(a), of
which not more than 20 percent shall be used for technical
assistance provided by the Secretary.
(2) National program.--Not more than $5,000,000 of the
amounts appropriated under subsection (a) shall be used by
the Secretary to support coral reef conservation projects
under section 7.
(3) administration.--Not more than 1 percent of the amounts
appropriated under paragraph 1 may be used by the Secretary
for administration of this Act.
______
By Mr. ABRAHAM (for himself, Mr. Torricelli, Mr. Hatch, and Mr.
McCain):
S. 1255. A bill to protect consumers and promote electronic commerce
by amending certain trademark infringement, dilution, and
counterfeiting laws, and for other purposes; to the Committee on the
Judiciary.
Anticybersquatting Consumer Protection Act
Mr. ABRAHAM. Mr. President, I rise today to introduce the
Anticybersquatting Consumer Protection Act on behalf of myself, Senator
Torricelli, Senator Hatch, and Senator McCain. This legislation will
combat a new form of high-tech fraud that is causing confusion and
inconvenience for consumers, increasing costs for people doing business
on the internet, and posing an enormous threat to a century of pre-
Internet American business efforts. The fraud is commonly called
``cybersquatting,'' a practice whereby individuals reserve internet
domain names or other identifiers of online locations that are similar
or identical to trademarked names. The easiest prey for cybersquatters
has turned out to be computer-unsavvy trademark-owners in the non-
internet world. Once a ``brick and mortar'' trademark is registered as
an on-line identifier or domain name, the ``cybersquatter'' can engage
in a variety of nefarious activities--from the relatively-benign parody
of a business or individual, to the obscene prank of redirecting an
unsuspecting consumer to pornographic content, to the destructive
worldwide slander of a centuries-old brand name. For the enterprising
cybersquatter, holding out a domain name for extortionate compensation
is a tried-and-true business practice, and the net effect of this
behavior is to undermine consumer confidence, discourage consumer use
of the internet, and destroy the value of brand-names and trademarks of
this nation's businesses.
Many companies simply pay extortionate prices to cybersquatters in
order to rid themselves of a headache with no certain outcome. For
example, Gateway recently paid $100,000 to a cybersquatter who had
placed pornographic images to the website ``www.gateway20000''. Rather
than simply give up, several companies already have instead sought
protection from cybersquatters through the legal system. For example,
the investment firm Paine Webber was forced to sue an internet Web
site, wwwpainewebber.com'' and its creator. The domain name at issue
took advantage of a typographical error--the missing ``.'' (dot)
between ``www'' and ``painewebber''--in order to direct consumers
desiring to do business with Paine Webber to a website containing
pornographic images. As with much of the pre-internet law that is
applied to this post-internet world, precedent is still developing, and
at this point, one cannot predict with certainty which party to a
dispute will win, and on what grounds, in the future.
Mr. President, some Americans continue to do a thriving, if
unethical, business collecting and selling internet addresses
containing trademarked names. Whether perpetrated to defraud the public
or to extort the trademark owner, squatting on internet addresses using
trademarked names is wrong. It must be stopped for the sake of
consumers, for the sake of trademark owners and for the sake of the
vast, growing electronic commerce that is doing so much to spur
economic growth and innovation in this country.
Mr. President, the Anticybersquatting Consumer Protection Act will
help to establish uniform rules for dealing with this attack on
interstate commerce. This legislation would establish penalties for
criminal use of a counterfeit trademark as a domain name. Using a
company's trademark or its variant as the address of an internet site
would constitute criminal use of a counterfeit trademark if the
defendant registered the address either knowingly and fraudulently or
in bad faith. Among the evidence establishing bad faith would be
registry of a domain name with (1) intent to cause confusion
[[Page S7335]]
or mistake or deception, to dilute the distinctive quality of a famous
trademark, or intent to divert consumers from the trademark owner's
domain to one's own; and (2) providing false information on the
application to register the identifier, or offering to transfer the
registration to a rightful owner for consideration for any thing of
value. Bad faith could not be shown where the identifier is the
defendant's legal first name or surname or where the defendant used the
identifier in legitimate commerce before the earlier of either the
first use of the registered trademark or the effective date of its
registration. Violation of this prohibition would constitute a Class B
misdemeanor for the first offense; subsequent offenses would be
classified as Class E felonies.
In addition, Mr. President, the Anticybersquatting Consumer
Protection Act provides for statutory civil damages in trademark cases
of at least $1,000, but not more than $100,000 ($300,000 if the
registration or use of the trademark was willful) per trademark per
identifier. The plaintiff may elect these damages in lieu of actual
damages or profits at any time before final judgment.
These provisions will discourage anyone from ``squatting'' on
addresses in cyberspace to which they are not entitled. In the process
it will protect consumers from fraud, protect the value of countless
trademarks, and encourage continued growth in our electronic commerce
industry.
Mr President, the growth of the Internet has provided businesses and
individuals with unprecedented access to a worldwide source of
information, commerce, and community. Unfortunately, those bad actors
seeking to cause harm to businesses and individuals have seen their
opportunities increase as well. In my opinion, on-line extortion in
this form is unacceptable and outrageous. Whether it's people extorting
companies by registering company names, misdirecting Internet users to
inappropriate sites, or otherwise attempting to damage a trademark that
a business has spent decades building into a recognizable brand,
persons engaging in cybersquatting activity should be held accountable
for their actions.
I urge my colleagues to support this important legislation, and I ask
unanimous consent that the full text of the bill, a section by section
analysis and additional materials be printed in the Record.
There being no objection, the materials were ordered to be printed in
the Record, as follows:
S. 1255
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 ``Anticybersquatting Consumer
Protection Act''.
SEC. 2. FINDINGS.
Congress finds that the unauthorized registration or use of
trademarks as Internet domain names or other identifiers of
online locations (commonly known as ``cybersquatting'')--
(1) results in consumer fraud and public confusion as to
the true source or sponsorship of products and services;
(2) impairs electronic commerce, which is important to the
economy of the United States; and
(3) deprives owners of trademarks of substantial revenues
and consumer goodwill.
SEC. 3. TRADEMARK REMEDIES.
(a) Recovery for Violation of Rights.--Section 35 of the
Act entitled ``An Act to provide for the registration and
protection of trade-marks used in commerce, to carry out the
provisions of certain international conventions, and for
other purposes'', approved July 5, 1946, (commonly referred
to as the ``Trademark Act of 1946'') (15 U.S.C. 1117) is
amended by adding at the end the following:
``(d)(1) In this subsection, the term `Internet' has the
meaning given that term in section 230(f)(1) of the
Communications Act of 1934 (47 U.S.C. 230(f)(1)).
``(2)(A) In a case involving the registration or use of an
identifier described in subparagraph (B), the plaintiff may
elect, at any time before final judgment is rendered by the
trial court, to recover, instead of actual damages and
profits under subsection (a)--
``(i) an award of statutory damages in the amount of--
``(I) not less than $1,000 or more than $100,000 per
trademark per identifier, as the court considers just; or
``(II) if the court finds that the registration or use of
the registered trademark as an identifier was willful, not
less than $3,000 or more than $300,000 per trademark per
identifier, as the court considers just; and
``(ii) full costs and reasonable attorney's fees.
``(B) An identifier referred to in subparagraph (A) is an
Internet domain name or other identifier of an online
location that is--
``(i) the trademark of a person or entity other than the
person or entity registering or using the identifier; or
``(ii) sufficiently similar to a trademark of a person or
entity other than the person or entity registering or using
the identifier as to be likely to--
``(I) cause confusion or mistake;
``(II) deceive; or
``(III) cause dilution of the distinctive quality of a
famous trademark.''.
(b) Remedies for Dilution of Famous Marks.--Section
43(c)(2) of the Act entitled ``An Act to provide for the
registration and protection of trade-marks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946,
(commonly referred to as the ``Trademark Act of 1946'') (15
U.S.C. 1125(c)(2)) is amended by striking ``35(a)'' and
inserting ``35 (a) and (d)''.
SEC. 4. CRIMINAL USE OF COUNTERFEIT TRADEMARK.
(a) In General.--Section 2320(a) of title 18, United States
Code, is amended--
(1) by inserting ``(1)'' after ``(a)'';
(2) by striking ``section that occurs'' and inserting
``paragraph that occurs''; and
(3) by adding at the end the following:
``(2)(A) In this paragraph, the term `Internet' has the
meaning given that term in section 230(f)(1) of the
Communications Act of 1934 (47 U.S.C. 230(f)(1)).
``(B)(i) Except as provided in clause (ii), whoever
knowingly and fraudulently or in bad faith registers or uses
an identifier described in subparagraph (C) shall be guilty
of a Class B misdemeanor.
``(ii) In the case of an offense by a person under this
paragraph that occurs after that person is convicted of
another offense under this section, that person shall be
guilty of a Class E felony.
``(C) An identifier referred to in subparagraph (B) is an
Internet domain name or other identifier of an online
location that is--
``(i) the trademark of a person or entity other than the
person or entity registering or using the identifier; or
``(ii) sufficiently similar to a trademark of a person or
entity other than the person or entity registering or using
the identifier as to be likely to--
``(I) cause confusion or mistake;
``(II) deceive; or
``(III) cause dilution of the distinctive quality of a
famous trademark.
``(D)(i) For the purposes of a prosecution under this
paragraph, if all of the conditions described in clause (ii)
apply to the registration or use of an identifier described
in subparagraph (C) by a defendant, those conditions shall
constitute prima facie evidence that the registration or use
was fraudulent or in bad faith.
``(ii) The conditions referred to in clause (i) are as
follows:
``(I) The defendant registered or used an identifier
described in subparagraph (C)--
``(aa) with intent to cause confusion or mistake, deceive,
or cause dilution of the distinctive quality of a famous
trademark; or
``(bb) with the intention of diverting consumers from the
domain or other online location of the person or entity who
is the owner of a trademark described in subparagraph (C) to
the domain or other online location of the defendant.
``(II) The defendant--
``(aa) provided false information in the defendant's
application to register the identifier; or
``(bb) offered to transfer the registration of the
identifier to the trademark owner or another person or entity
in consideration for any thing of value.
``(III) The identifier is not--
``(aa) the defendant's legal first name or surname; or
``(bb) a trademark of the defendant used in legitimate
commerce before the earlier of the first use of the
registered trademark referred to in subparagraph (C) or the
effective date of the registration of that trademark.
``(iii) The application of this subparagraph shall not be
exclusive. Nothing in this subparagraph may be construed to
limit the applicability of subparagraph (B).''.
(b) Sentencing Guidelines.--
(1) In general.--Pursuant to the authority granted to the
United States Sentencing Commission under section 994(p) of
title 28, United States Code, the United States Sentencing
Commission shall--
(A) review the Federal sentencing guidelines for crimes
against intellectual property (including offenses under
section 2320 of title 18, United States Code); and
(B) promulgate such amendments to the Federal Sentencing
Guidelines as are necessary to ensure that the applicable
sentence for a defendant convicted of a crime against
intellectual property is sufficiently stringent to deter such
a crime.
(2) Factors for consideration.--In carrying out this
subsection, the United States Sentencing Commission shall--
(A) take into account the findings under section 2; and
(B) ensure that the amendments promulgated under paragraph
(1)(B) adequately provide for sentencing for crimes described
in paragraph (2) of section 2320(a) of title 18, United
States Code, as added by subsection (a).
[[Page S7336]]
SEC. 5. LIMITATION OF LIABILITY.
Section 39 of the Act entitled ``An Act to provide for the
registration and protection of trade-marks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946,
(commonly referred to as the ``Trademark Act of 1946'') (15
U.S.C. 1121) is amended by adding at the end the following:
``(c)(1) In this subsection, the term `Internet' has the
meaning given that term in section 230(f)(1) of the
Communications Act of 1934 (47 U.S.C. 230(f)(1)).
``(2)(A) An Internet service provider, domain name
registrar, or registry described in subparagraph (B) shall
not be liable for monetary relief to any person for a removal
or transfer described in that subparagraph, without regard to
whether the domain name or other identifier is ultimately
determined to be infringing or dilutive.
``(B) An Internet service provider, domain name registrar,
or registry referred to in subparagraph (A) is a provider,
registrar, or registry that, upon receipt of a written notice
from the owner of a trademark registered in the Patent and
Trademark Office, removes from domain name service (DNS)
service or registration, or transfers to the trademark owner,
an Internet domain name or other identifier of an online
location alleged to be infringing or dilutive, in compliance
with--
``(i) a court order; or
``(ii) the reasonable implementation of a policy
prohibiting the unauthorized registration or use of another's
registered trademark as an Internet domain name or other
identifier of an online location.''.
____
The Anticybersquatting Consumer Protection Act--Section-by-Section
Analysis
A bill to protect consumers and promote electronic commerce
by amending certain trademark infringement, dilution, and
counterfeiting laws, and for other purposes.
section 1: short title
This Act may be cited as the ``Anticybersquatting Consumer
Protection Act.''
section 2: findings
This section sets out Congressional findings concerning the
effect of ``unauthorized registration or use of trademarks as
Internet domain names or other identifiers of online
locations'' (``cybersquatting''). Cyber- squatting (1)
results in consumer fraud, (2) impairs electronic interstate
commerce, and (3) deprives trademark owners of revenue and
consumer goodwill.
section 3: trademark remedies
(a) Recovery for violation of rights
The Trademark Act of 1946 (15 U.S.C. 1117) shall
incorporate the definition of ``Internet'' used in the
Communications Act of 1934 (47 U.S.C. 230 (f) (1)).
An ``identifier'' refers to an Internet domain name or
another identifier of an online location that is (i) the
plaintiff's trademark, or (ii) so sufficiently similar to the
plaintiff's trademark as to be likely to ``cause confusion or
mistake,'' ``deceive,'' or ``cause dilution of the
distinctive quality of a famous trademark.''
This section expands civil penalties for cybersquatting by
providing that before final judgment in a case involving the
registration or use of an identifier, a plaintiff may--
instead of seeking actual damages or profits--elect to
recover statutory damages of at least $1,000, but not more
than $100,000 (at least $3,000, but not more than $300,000 if
court finds that the registration or use of the trademark was
willful) per trademark per identifier, as the court considers
just. Furthermore, the plaintiff may recover full costs and
reasonable attorney's fees.
(b) Remedies for dilution of famous marks
This section amends the Trademark Act of 1946 (15 U.S.C.
1125 (c) (2)) by making the remedies set forth in section 3
(a) also available for the willful dilution of famous marks
or trade on the owner's reputation.
section 4: criminal use of counterfeit trademark
(a) In general
This section amends 18 U.S.C. 2320 (a) (``Trafficking in
Counterfeit Goods or Services'') by adding criminal penalties
for the use of a counterfeit trademark on the Internet. Like
section 3 (a), this section incorporates the definition of
Internet used in the Communications Act of 1934 (47 U.S.C.
230 (f) (1)). It also incorporates the same definition of
``identifier'' found in section 3 (a).
Under this section, whoever knowingly and fraudulently or
in bad faith registers or uses the trademark of another would
be guilty of a Class B misdemeanor. Repeat offenders would be
guilty of Class E felony.
Prima facie evidence that a registration or use was
fraudulent or in bad faith would require satisfaction of the
following elements:
(1) the defendant registered or used an identifier with
intent to (a) cause confusion or mistake, deceive, or cause
dilution of the distinctive quality of a famous trademark, or
(b) with intention of diverting consumers from the trademark
owner to the defendant; and
(2) the defendant provided false information in its
application to register the identifier or offered to transfer
the identifier's registration to the trademark owner or other
person or entity for something of value; and
(3) the identifier is not the defendant's legal first name
or surname or the defendant had not used the identifier in
legitimate commerce before the earlier of either the first
use of the registered trademark or the effective date of its
registration.
(b) Sentencing guidelines
(1) In general
The United States Sentencing Commission shall provide for
penalties for the criminal use of counterfeit trademarks by
amending the sentencing guidelines in accordance with the
guidelines for crimes against intellectual property (18
U.S.C. 2320).
(2) Factors for consideration
The United States Sentencing Commission shall take into
account the Findings promulgated in Section 2 and ensure that
the amendments to the sentencing guidelines adequately
provide penalties for the crimes described in this Act.
Section 5: limitation of liability
An Internet service provider (ISP) or domain name registrar
shall not be liable for monetary damages to any person if it
removes an infringing identifier from domain name server
(DNS) service or from registration, or transfers it to the
trademark owner: (1) upon written notice from the trademark
owner and (2) in compliance with either a court order or the
reasonable implementation of a policy prohibiting the
unauthorized registration or use of another's registered
trademark.
This limitation shall apply without regard to whether the
domain name or other identifier is ultimately determined to
be infringing or dilutive.
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Information Technology
Industry Council,
Washington, DC, June 21, 1999.
Hon. Spencer Abraham,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Abraham: On behalf of ITI's member companies,
I am writing to thank you, Senator Hatch and Senator
Torricelli for your leadership in introducing the Anti-
Cybersquatting Consumer Protection Act today.
ITI is the association of leading U.S. providers of
information technology products and services. It advocates
growing the economy through innovation and supports free-
market policies. ITI members had worldwide revenue of more
than $440 billion in 1998 and employ more than 1.2 million
people in the United States.
Over the past several years, trademark holders have found
it difficult and expensive to prevent infringement and
dilution of their marks online, especially as
``cybersquatters'' have made a cottage industry out of
intentionally registering others' trademarks as domain names
and seeking to sell the domain name back to the rightful
owners. Such activity damages electronic commerce by sowing
confusion among consumers and other Internet users.
While some ITI members have concerns about the bill's
criminal provisions, we believe the importance of federal
legislation to stop cybersquatting should not be
underestimated and we look forward to working with you as
this legislation is considered by the Senate.
Best regards,
Phillip Bond,
Senior Vice President,
Government Relations.
____________________