[Pages S9466-S9477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

Mr. HATCH (for himself, Mr. Lott, Mr. Nickles, Mr. Mack, Mr.
McCain, Mr. Grassley, Mr. Thurmond, Mr. Kyl, Mr. Abraham, Mr.
DeWine, Mr. Sessions, Mr. Smith of New Hampshire, Mr. Smith of
Oregon, Ms. Collins, Mr. Fitzgerald, Mr. Helms, Mr. Santorum,
Mr. Hagel, Mr. Shelby, Mr. Warner, Mr. Inhofe, Ms. Snowe, Mr.
Allard, Mr. Brownback, Mr. Grams, Mr. Bennett, Mr. Cochran, Mr.
Hutchinson, and Mr. Frist):
S. 3130. A bill to provide for post-conviction DNA testing, to
facilitate the exchange by law enforcement agencies of DNA
identification information relating to felony offenders, and for other
purposes; to the Committee on the Judiciary.

CRIMINAL JUSTICE INTEGRITY AND LAW ENFORCEMENT ASSISTANCE ACT

Mr. HATCH. Mr. President, in the last decade, DNA testing has become
the most reliable forensic technique for identifying criminals when
biological evidence of the crime is recovered. While DNA testing is
standard in pre-trial investigations today, the issue of post-
conviction DNA testing has emerged in recent years as the technology
for testing has improved. Because biological evidence, such as semen or
hair from a rape, is often preserved by authorities years after trial,
it is possible to submit preserved biological evidence for DNA testing.
In cases that were tried before DNA technology existed, and in which
biological evidence was preserved after conviction, post-conviction
testing is feasible.
While the exact number is subject to dispute, post-conviction DNA
testing has exonerated prisoners who were convicted of crimes committed
before DNA technology existed. In some of these cases, the post-
conviction DNA testing that exonerated a wrongly convicted person led
to the apprehension of the actual criminal. In response to these cases,
the Senate Judiciary Committee has examined various state post-
conviction DNA statutes, held a hearing on post-conviction DNA testing,
and sought the expertise of federal and state prosecutors and criminal
defense lawyers.
To ensure that post-conviction DNA testing is available in
appropriate cases, I, along with Senators Lott, Nickles, Mack, McCain,
Thurmond, Grassley, Kyl, Abraham, DeWine, Sessions, R. Smith, G. Smith,
Collins, Fitzgerald, Helms, Santorum, Hagel,

[[Page S9467]]

Shelby, Warner, Inhofe, Snowe, Allard, Brownback, Grams, Bennett,
Cochran, T. Hutchinson, and Frist are introducing the Criminal Justice
Integrity and Law Enforcement Assistance Act today. This Act authorizes
post-conviction DNA testing in federal cases and encourages the States,
through a grant program, to authorize post-conviction DNA testing in a
consistent manner in state cases. In addition, the Act provides $60
million in grants to help States reduce the backlog of DNA evidence to
be analyzed and to conduct post-conviction DNA testing.
The Criminal Justice Integrity Act was based in large part on the
successful post-conviction DNA testing statute in Illinois. The
Illinois statute has worked particularly well, as Illinois has the most
post-conviction DNA exonerations in the Nation. Like the Illinois
statute, the Criminal Justice Integrity Act authorizes post-conviction
DNA testing only in cases in which testing has the potential to prove
the prisoner's innocence. This standard will allow testing in
potentially meritorious cases without wasting scarce prosecutorial and
judicial resources on frivolous cases. It is significant that the
Illinois statute has worked well without overburdening the State's law
enforcement or judicial systems.
Mr. President, given that post-conviction DNA testing is a complex
legal issue, I would like to discuss the legal standard to obtain
testing in the Illinois statute and in the Criminal Justice Integrity
Act. While the Illinois statute is somewhat vague, several Illinois
Court of Appeals decisions have interpreted the standard for obtaining
post-conviction testing under the statute. See People v. Gholston, 697
N.E.2d 375 (1998); People v. Dunn, 713 N.E.2d 568 (1999); People v.
Savory, 722 N.E.2d 220 (1999). As these decisions make clear, post-
conviction testing is allowed under the Illinois statute only if the
testing has ``the potential to establish the defendant's innocence.''
For example, in People v. Gholston, the defendant and five companions
were convicted of raping a woman and assaulting and robbing her two
male companions in 1981. In 1995, the defendant filed a motion to
compel DNA testing of the victim's rape kit to prove that he did not
participate in the gang rape. The trial court dismissed the motion for
testing, and the appellate court affirmed.
In affirming the denial of testing, the court ruled that a ``negative
DNA match would not exculpate defendant Gholston due to the multiple
defendants involved, the lack of evidence regarding ejaculation by the
defendant Gholston and defendant's own admission of guilt under a
theory of accountability.'' Id. at 379.
In People v. Dunn, the defendant was convicted in 1979 of a rape in
which there was only one attacker. The defendant petitioned for post-
conviction relief, and the trial court dismissed the petition. On
appeal, the court remanded the motion to determine whether post-
conviction testing was appropriate under the Illinois statute.
In remanding the motion, the court distinguished the facts in Dunn
from Gholston, noting that post-conviction testing was denied in
Gholston because ``the test results could not have been conclusive of
defendant's guilt or innocence.'' Id. at 571. Under the facts in Dunn,
the court held that the decision in Gholston would not prevent post-
conviction testing ``where DNA testing would be determinative'' of
guilt or innocence. Id. The court remanded the motion to the trial
court to determine ``whether any conclusive result is obtainable from
DNA testing.'' Id.
The most extensive discussion of the standard for obtaining post-
conviction testing under the Illinois statute occurred in People v.
Savory. In Savory, the defendant was convicted of stabbing two people
to death in 1977. In 1998, the defendant sought DNA testing of
bloodstained pants that were recovered from his home. The trial court
denied the motion for DNA testing, and the appeals court affirmed.
The court held that DNA testing on the bloodstained pants could not
exonerate the defendant because a negative DNA match could merely
indicate that the defendant did not wear those pants during the
murders. At trial, Savory's father testified that the pants were his
and that he, not the defendant, was responsible for the bloodstains. In
addition, there was other, overwhelming evidence of the defendant's
guilt.
The court in Savory noted that in Gholston, post-conviction testing
was denied because ``DNA testing could not conclusively establish
defendant's guilt or innocence.'' In discussing the Illinois statute,
the court stated:

Based on the plain language of [the Illinois statute] and
on the interpretation of [the statute] in Gholston and Dunn,
we believe that the legislature intended to provide a
process of total vindication . . . [I]n using the term
``actual innocence,'' the legislature intended to limit
the scope of the [Illinois statute], allowing for
scientific testing only where it has the potential to
exonerate a defendant. Id. at 224.

Under the facts in Savory, the court denied post-conviction testing
because ``although DNA testing carries the possibility of weakening the
State's original case against the defendant, it does not have the
potential to prove him innocent.'' Id. at 225.
In short, post-conviction testing is allowed under the Illinois
statute only where testing ``could be conclusive of the defendant's
guilt or innocence''; only where ``DNA testing would be
determinative''; only if ``any conclusive result is obtainable from DNA
testing''; and only where post-conviction testing ``has the potential
to exonerate a defendant.''
The Criminal Justice Integrity Act has a similar legal standard to
obtain testing. The Act authorizes testing if the prisoner makes a
``prima facie showing'' that identity was at issue at trial and DNA
testing would, assuming exculpatory results, establish actual
innocence. A ``prima facie showing'' is a lenient requirement that is
defined as ``simply a sufficient showing of possible merit to warrant a
fuller exploration by the district court.'' See Bennett v. U.S., 119
F.3d 468 (7th Cir. 1997). Thus, under the Criminal Justice Integrity
Act, post-conviction testing is ordered if the prisoner makes a
``sufficient showing of possible merit'' that identity was at issue at
trial and DNA testing would, assuming exculpatory results, establish
actual innocence. In other words, the Act requires a showing that post-
conviction testing has the potential to prove innocence. This is
consistent with--and no more difficult than--the legal standard in the
Illinois statute. If post-conviction DNA testing can establish a
prisoner's innocence, such a prisoner can obtain testing under the
Criminal Justice Integrity Act.
If post-conviction DNA testing is performed and produces exculpatory
evidence, the Criminal Justice Integrity Act allows the prisoner to
move for a new trial based on newly discovered evidence,
notwithstanding the time limits on such motions applicable to other
forms of newly discovered evidence. In so doing, the Act relies on
established judicial procedures. In addition, the Criminal Justice
Integrity Act prohibits authorities from destroying biological evidence
which was preserved in cases in which identity was at issue for the
duration of the Act, and it authorizes the court to appoint counsel for
an indigent prisoner who seeks post-conviction testing.
Mr. President, the Criminal Justice Integrity and Law Enforcement
Assistance Act is the only federal post-conviction DNA legislation that
is supported by the law enforcement community. The Criminal Justice
Integrity Act was unanimously endorsed by the bipartisan board of the
National District Attorneys Association. In addition, the International
Association of Chiefs of Police, the Fraternal Order of Police, and the
National Sheriffs' Association have endorsed the bill. I am proud to
have the support of the law enforcement community for this important
legislation.
In closing, I would like to note that advanced DNA testing improves
the just and fair implementation of the death penalty. While the
Criminal Justice Integrity Act applies both to non-capital and capital
cases, I think the Act is especially important in death penalty cases.
While reasonable people can differ about capital punishment, it is
indisputable that advanced DNA testing lends support and credibility to
the accuracy and integrity of capital cases. For example, earlier this
year, Texas Governor George W. Bush, granted a temporary reprieve to a
death row inmate, Ricky McGinn, to allow post-conviction DNA testing on
evidence recovered from the victim. In 1995, McGinn was convicted of
raping and murdering his 12-year-old stepdaughter. McGinn's lawyers had
argued

[[Page S9468]]

that additional DNA testing could prove that McGinn did not rape the
victim, and therefore, was not eligible for the death penalty.
The DNA testing was recently completed, and the test results
confirmed that McGinn raped the victim, in addition to murdering her.
In short, as the McGinn case demonstrates, we are in a better position
than ever before to ensure that only the guilty are executed. All
Americans--supporters and opponents of the death penalty alike--should
recognize that DNA testing provides a powerful safeguard in capital
cases. We should be thankful for this amazing technological
development.
I ask unanimous consent that the endorsements of this legislation be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Grand Lodge,

Fraternal Order of Police,

Albuquerque, NM, July 5, 2000.
Hon. Orrin G. Hatch,
Chairman, Senate Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I am writing on behalf of the more than
290,000 members of the Fraternal Order of Police to advise
you of our strong support of legislation you intend to
introduce entitled the ``Criminal Justice integrity and Law
Enforcement Assistance Act.''
Political opponents of the death penalty have renewed their
assault wrongly citing ``mistakes'' in the justice system
which leads to the execution of innocent persons. One of
their ploys in their effort to suspend the practice
indefinitely calls for post-conviction DNA testing, a
relative new technology. We find it very sad that political
considerations are intruding in such a way that real justice
is thwarted, not furthered.
The FOP vehemently opposes the thinly veiled political
attempts to end capital punishment, like S. 2073, offered by
Ranking Member Patrick J. Leahy (D-VT). This legislation
would require expensive, post conviction testing in thousands
of unnecessary cases such as those in which no exculpatory
evidence is likely to be found. The bill places vital law
enforcement funds like the Community Oriented Policing
Services (COPS), the Edward J. Byrne and DNA Identification
grant programs in jeopardy by requiring all states to adopt
this standard. His bill would prohibit the death penalty for
Federal crimes committed in certain states and provide
Federal grants to nonprofit organizations subsidizing the
American Civil Liberties Union's (ACLU) representation of
defendants in capital cases. In essence, Senator Leahy's bill
is an effort to kill the death penalty.
The legislation which you shared with us would authorize
post-conviction DNA testing for a thirty (30) month period
and only in a narrow class of cases where the identity of the
perpetrator was at issue during trial and, assuming
exculpatory results, would establish the innocence of the
defendant. The FOP strongly approves of the time limitation
because the issue of post-conviction testing involves only
past cases where the technology was not available. DNA
testing is now standard in pretrial investigations.
Your proposed legislation would also provide $60 million to
the states in an effort to reduce the nationwide backlog of
unanalyzed DNA samples from convicted offenders and crime
scenes. In order to qualify for these grants, states must
allow post-conviction testing in a manner consistent with the
procedures established by this bill.
The FOP has confidence in our nation's justice system and
yet recognizes that no system is ever perfect. For this
reason, we support a time-limited window for post-conviction
DNA testing in those few cases where innocence might be
proved.
I want to thank you for sharing this draft with us and we
look forward to working with you and your staff to get this
legislation enacted.
Sincerely,
Gilbert G. Callegos,
National President.
____

National District

Attorneys Association,

Alexandria, VA, August 16, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, Dirksen Senate Office
Building, Washington, DC.
Dear Chairman Hatch: The National District Attorneys
Association, with over 7,000 members, represents the local
prosecutors of this nation. Our members try, by far, the
majority of criminal cases in this country and our expertise
in prosecuting violent criminals is second to none--as is our
dedication to protecting the innocent. In keeping with this
charge, the Board of Directors of the National District
Attorneys Association has voted, unanimously, to support the
``Criminal Justice Integrity and Law Enforcement Assistance
Act,'' for which you serve as the primary sponsor.
New technologies, such as DNA testing, can assist in
establishing guilt or innocence in cases when used
appropriately. In the application of any new technology, post
conviction testing must be reserved for those defendants who
can actually benefit from the application of the advance of
science and not merely raise spurious claims.
Testing DNA, or any other scientific evidence, is costly
and requires trained technicians to collect the evidence,
conduct analyses of the samples and provide the requisite
records and testimony to the court. Advancing unfounded
demands for post conviction tests would not only delay on
going investigations and trials but also deny those truly
deserving of a reassessment of the evidence in their case a
timely review.
Adhering to these principles we believe that post
conviction testing must be reserved for:
defendants who have consistently maintained their
innocence--if the defendant has voluntarily confessed to the
offense or has pled guilty then they should not have the
requisite standing to challenge their guilt; and
have contested the issue of identification at tiral--DNA
testing goes to the issue of identification, nothing else;
and
who can make a prima facie showing that a favorable test
would demonstrate their innocence.
The latter point is most crucial. In many cases an
individual can be guilty of a crime, in which DNA evidence
may be available, yet not have been the individual who left
the evidence. For instance an individual can be convicted of
rape by holding down a victim even though he never actually
has intercourse or they may never have ejaculated; in a
like fashion the driver of a ``get away'' car can be
convicted of murder even though she never enters the
convenience store.
The federal government does have a vital role to play in
this effort to hasten appropriate post conviction relief in
fostering the use of DNA testing but cannot, and must not,
usurp state prerogatives in preserving the sanctity of their
respective systems of criminal justice. If post conviction
testing DNA evidence indicates potentially favorable results,
the issue should be addressed, under state criminal
procedures, as a timely claim of newly discovered evidence
and be accorded review under normal state standards.
The legitimate role of the federal government in this
effort is to encourage and assist the states in developing
the means to conduct post conviction testing of scientific
evidence. Given the serious, and continuing, backlog of DNA
cases in particular, federal help can, and must be directed
towards exponential increases in the capabilities of the
state laboratory systems.
Withholding critical funding or mandating how states must
use federal programs is counterproductive to the effort to
obtain viable post conviction relief. Federal assistance must
be devoted to permitting each state to apply resources to
support and reinforce their respective systems. Moreover
federal assistance must be incorporated, by the individual
states, into efforts to upgrade laboratory capabilities
across the board.
To be meaningful, DNA testing, and post conviction relief
measures, must be truly dispositive of a defendant's guilt or
innocence and not merely a pretext to stymie justice--for
himself or others. The ``Criminal Justice Integrity and Law
Enforcement Assistance Act'' provides for this balance of
resources and we most strongly urge that it be passed by the
Congress.
Sincerely,
Robert M.A. Johnson,
County Attorney, Ano- ka County, Minnesota, President,
National District Attorneys Association.
____

International Association

of Chiefs of Police,

Alexandria, VA, June 21, 2000.
Hon. Orrin Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: On behalf of the International
Association of Chiefs of Police (IACP), I am writing to
express our strong support for the Criminal Justice Integrity
and Law Enforcement Assistance Act of 2000. As you know, the
IACP is world's oldest and largest association of law
enforcement executives with more than 18,000 members in 100
countries.
The use of DNA evidence represents the logical next step in
technological advancement of criminal investigations and is
in keeping with law enforcement's obligation to use the most
advanced and accurate methods of investigating crime and
proving criminal activity in a court of law. The IACP
strongly supports the collection and use of DNA evidence and
has consistently called for legislation that would promote
greater use of DNA technology and include funding to analyze
both convicted offender and crime scene DNA samples. The
provisions of the Criminal Justice Integrity and Law
Enforcement Assistance Act advance these goals.
Currently, more than 700,000 DNA samples taken from
convicted felons and recovered from crime scenes remain
unanalyzed due to the limited resources of state and local
law enforcement agencies. This backlog severely threatens the
timeliness of quality forensic examinations that are critical
to solving crimes. By authorizing $60 million to assist
states in reducing the current backlog of DNA samples the
Criminal Justice Integrity and Law Enforcement Assistance Act
will greatly increase the ability of state and local law
enforcement agencies to make efficient and effective use of
DNA evidence.
In addition, by limiting post conviction DNA tests to only
those cases where the results have the potential to
conclusively establish an individual's innocence of the

[[Page S9469]]

crime for which they were convicted, this act properly
ensures that justice is served without burdening the court
system and forensic laboratories with thousands of cases.
Thank you for your continued support of the nation's law
enforcement agencies. We look forward to working with you on
this issue of vital importance.
Sincerely,
Michael D. Robinson,
President.

Mr. SMITH of Oregon. I am very pleased that the distinguished Senator
from Utah has recognized the need to address the important issue of
post-conviction DNA testing at the federal level and am proud to join
his efforts. Senator Hatch's Criminal Justice Integrity and Law
Enforcement Assistant Act is an excellent bill that has the strong
support from law enforcement officials. It will provide much-needed
funds for law enforcement authorities to analyze convicted offender DNA
samples and DNA evidence gathered from crime scenes.
However, it has become abundantly clear over recent years that
funding is not the only problem in the post-conviction DNA testing
debate. In determining guilt and innocence, our criminal justice system
occasionally makes mistakes. It is our responsibility to take every
reasonable measure to prevent miscarriages of justice. Perhaps the
gravest injustice that could occur is wrongful imprisonment of an
innocent person. Ensuring that all defendants have access to competent
counsel would go a long way to minimize the risk of unjust
incarceration.
Some will say that there is no problem, or that it is so rare as to
be negligible, or that we do not yet know the true extent of the
problem and should not introduce legislation until we do. I strongly
disagree. Although officers of America's courts and law enforcement
work extremely hard to ensure that the true perpetrators of heinous
crimes are caught and convicted, there have been errors that have sent
innocent men to death row--innocent people like you and me who did not
deserve to be there. While some states, like my home State of Oregon,
work hard to ensure that defendants are represented by competent
counsel, other states clearly do not. Without a federal standard, there
is a real risk that innocent people tried in states without adequate
standards for defense counsel could be unjustly incarcerated, or in
rate cases, even sentenced to death. Setting federal standards for
competent counsel for all defendants is a very reasonable step to make
sure that our system of criminal justice operates fairly regardless of
where you live.
Senator Leahy and I have introduced the Innocence Protection Act,
which would address the vital issue of competency of counsel, among
other things. Although the Criminal Justice Integrity Act, as
introduced, does not address the issue of competency of counsel,
Senator Hatch has promised to work with me and others to consider this
issue when any post-conviction DNA testing legislation is considered in
the Senate. I commend Senator Hatch for his interest in this matter,
and for his willingness to work with me to produce a bill that will
truly make a good system even better.
Mr. Hatch. I promise the distinguished Senator from Oregon that I
will take up this issue in the months ahead. The issue of competency of
counsel for indigents in state capital cases is a difficult issue for
several reasons. First, it is not clear that this is a nationwide
problem. For example, in Utah and Oregon, there does not appear to be a
problem concerning the representation of indigents in capital cases.
Second, the anecdotal examples cited in the media of poor capital
representation occurred many years ago. For example, the death penalty
trial of Gary Graham, which has been repeatedly mentioned in the press,
occurred in 1981. Third, the States that seem to have a problem in this
area recently made improvements. In 1995, Texas Governor George W. Bush
signed legislation that provided indigent capital defendants the right
to have two attorneys represent them at trial. Just this year, Alabama
passed a law that compensates lawyers who represent indigents in
capital trials at $100 per hour.
In short, I would like to know more about the extent of this problem
before I introduce legislation. Thankfully, the Bureau of Justice
Statistics is releasing a comprehensive study of state indigent legal
defense services in December. I am hopeful that this study will provide
the information necessary to evaluate the extent of this problem. I
look forward to working with Senator Smith in the months ahead.
______

Mr. MURKOWSKI (for himself and Mr. Abraham):
S. 3131. A bill to amend title XVIII of the Social Security Act to
ensure that the Secretary of Health and Human Services provides
appropriate guidance to physicians and other health care providers that
are attempting to properly submit claims under the Medicare Program and
to ensure that the Secretary targets truly fraudulent activity for
enforcement of medicare billing regulations, rather than inadvertent
billing errors; to the Committee on Finance.

medicare billing and education act

Mr. MURKOWSKI. Mr. President, right now, all across America, Medicare
beneficiaries are seeking medical care from a flawed health care
system. Reduced benefit packages, ever escalating costs, and limited
access in rural areas are just a few of the problems our system faces
on a daily basis. For this reason, Congress must continue to move
towards the modernization of Medicare. But as we address the needs of
beneficiaries, we must not turn our back upon the very providers that
seniors rely upon for their care.
These providers are the physicians, the therapists, the nurses, and
the allied health professionals who deliver quality care to our needy
Medicare population. They are the backbone of our complex health care
network. When our nation's seniors need care, it is the provider who
heals, not the health insurer--and certainly not the federal
government.
But more, and more often, seniors are being told by providers that
they don't accept Medicare. This is becoming even more common in rural
areas, where the number of physicians and access to quality care is
already severely limited. Quite simply, beneficiaries are being told
that their insurance is simply not wanted. Why? Well it's not as simple
as low reimbursement rates. In fact it's much more complex.
The infrastructure that manages the Medicare program, the Health Care
Financing Administration and its network of contractors, have built up
a system designed to block care and micro-manage independent practices.
Providers simply can't afford to keep up with the seemingly endless
number of complex, redundant, and unnecessary regulations. And if
providers do participate? Well, a simple administrative error in
submitting a claim could subject them to heavy-handed audits and the
financial devastation of their practice. Should we force providers to
choose between protecting their practice and caring for seniors?
I believe the answer is no. For this reason, I am introducing the
``Medicare Billing and Education Act of 2000.'' Co-sponsored by Senator
Abraham, this legislation will restore fairness to the Medicare system.
It will allow providers to practice medicine without fearing the
threats, intimidation, and aggressive tactics of a faceless
bureaucratic machine.

Most importantly, this bill will reform the flawed appeals process
within HCFA. Currently, a provider charged with receiving an
overpayment is forced to choose between three options: admit the
overpayment, submit additional information to mitigate the charge, or
appeal the decision. However, a provider who chooses to submit
additional evidence must subject their entire practice to review and
waive their appeal rights. That's right--to submit additional evidence
you must waive your right to an appeal!
And what is the result of this maddening system that runs contrary to
our nation's history of fair and just administrative decisions? Often,
providers are intimidated into accepting the arbitrary decision of an
auditor employed by a HCFA contractor. Sometimes, they are even forced
to pull out of the Medicare program. In the end, our senior population
suffers.
Under my bill, providers will be allowed to retain their appeal
rights should they choose to first submit additional evidence to
mitigate the charge. Many providers receive an overpayment as the
result of a simple administrative mistake. For cases not involving
fraud, a provider will be able

[[Page S9470]]

to return that overpayment within twelve months without fear of
prosecution. This is a common sense approach, and will not lead to any
additional costs to the Medicare system.
To bring additional fairness to the system, my bill will prohibit the
retroactive application of regulations, and allow providers to
challenge the constitutionality of HCFA regulations. Further, it will
prohibit the crippling recovery of overpayments during an appeal, and
bar the unfair method of withholding valid future payments to recover
past overpayments. These common sense measures maintain the financial
viability of medical practices during the resolution of payment
controversies, and restore fundamental fairness to the dispute
resolution procedures existing within HCFA.
Like many of our nation's problems, the key to improvement is found
in education. For this reason, I have included language that stipulates
that at least ten percent of the Medicare Integrity Program funds, and
two percent of carrier funds, must be devoted to provider education
programs.
providers cannot be expected to comply with the endless number of
Medicare regulations if they are not shown how to submit clean claims.
We must ensure that providers are given the information needed to
eliminate future billing errors, and improve the responsiveness of
HCFA.
It is with the goal of protecting our Medicare population, and the
providers who tend care, that leads me to introduce the ``Medicare
Billing and Education act of 2000.'' This bill will ensure that
providers are treated with the respect that they deserve, and that
Medicare beneficiaries aren't told that their health insurance isn't
wanted. We owe it to our nation's seniors. I urge immediate action on
this worthy bill.
I ask unanimous consent that the text of my bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 3131

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Medicare
Billing and Education Act of 2000''.
(b) Table of Contents.--The table of contents of this Act
is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.

TITLE I--REGULATORY REFORM

Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of
regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal
pending.

TITLE II--APPEALS PROCESS REFORMS

Sec. 201. Reform of post-payment audit process.
Sec. 202. Definitions relating to protections for physicians,
suppliers, and providers of services.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.

TITLE III--EDUCATION COMPONENTS

Sec. 301. Designated funding levels for provider education.
Sec. 302. Advisory opinions.

TITLE IV--SUSTAINABLE GROWTH RATE REFORMS

Sec. 401. Inclusion of regulatory costs in the calculation of the
sustainable growth rate.

TITLE V--STUDIES AND REPORTS

Sec. 501. GAO audit and report on compliance with certain statutory
administrative procedure requirements.
Sec. 502. GAO study and report on provider participation.
Sec. 503. GAO audit of random sample audits.

SEC. 2. FINDINGS.

Congress finds the following:
(1) Physicians, providers of services, and suppliers of
medical equipment and supplies that participate in the
medicare program under title XVIII of the Social Security Act
must contend with over 100,000 pages of complex medicare
regulations, most of which are unknowable to the average
health care provider.
(2) Many physicians are choosing to discontinue
participation in the medicare program to avoid becoming the
target of an overzealous Government investigation regarding
compliance with the extensive regulations governing the
submission and payment of medicare claims.
(3) Health Care Financing Administration contractors send
post-payment review letters to physicians that require the
physician to submit to additional substantial Government
interference with the practice of the physician in order to
preserve the physician's right to due process.
(4) When a Health Care Financing Administration contractor
sends a post-payment review letter to a physician, that
contractor often has no telephone or face-to-face
communication with the physician, provider of services, or
supplier.
(5) The Health Care Financing Administration targets
billing errors as though health care providers have committed
fraudulent acts, but has not adequately educated physicians,
providers of services, and suppliers regarding medicare
billing requirements.
(6) The Office of the Inspector General of the Department
of Health and Human Services found that 75 percent of
surveyed physicians had never received any educational
materials from a Health Care Financing Administration
contractor concerning the equipment and supply ordering
process.

SEC. 3. DEFINITIONS.

In this Act:
(1) Applicable authority.--The term ``applicable
authority'' has the meaning given such term in section
1861(uu)(1) of the Social Security Act (as added by section
202).
(2) Carrier.--The term ``carrier'' means a carrier (as
defined in section 1842(f) of the Social Security Act (42
U.S.C. 1395u(f))) with a contract under title XVIII of such
Act to administer benefits under part B of such title.
(3) Extrapolation.--The term ``extrapolation'' has the
meaning given such term in section 1861(uu)(2) of the Social
Security Act (as added by section 202).
(4) Fiscal intermediary.--The term ``fiscal intermediary''
means a fiscal intermediary (as defined in section 1816(a) of
the Social Security Act (42 U.S.C. 1395h(a))) with an
agreement under section 1816 of such Act to administer
benefits under part A or B of such title.
(5) Health care provider.--The term ``health care
provider'' has the meaning given the term ``eligible
provider'' in section 1897(a)(2) of the Social Security Act
(as added by section 301).
(6) Medicare program.--The term ``medicare program'' means
the health benefits program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(7) Prepayment review.--The term ``prepayment review'' has
the meaning given such term in section 1861(uu)(3) of the
Social Security Act (as added by section 202).
(8) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.

TITLE I--REGULATORY REFORM

SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.

Section 1871(a) of the Social Security Act (42 U.S.C.
1395hh(a)) is amended by adding at the end the following new
paragraph:
``(3) Any regulation described under paragraph (2) may not
take effect earlier than the date on which such regulation
becomes a final regulation. Any regulation described under
such paragraph that applies to an agency action, including
any agency determination, shall only apply as that regulation
is in effect at the time that agency action is taken.''.

SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES
OF REGULATIONS.

(a) Right To Challenge Constitutionality and Statutory
Authority of HCFA Regulations.--Section 1872 of the Social
Security Act (42 U.S.C. 1395ii) is amended to read as
follows:

``application of certain provisions of title ii

``Sec. 1872. The provisions of sections 206 and 216(j), and
of subsections (a), (d), (e), (h), (i), (j), (k), and (l) of
section 205, shall also apply with respect to this title to
the same extent as they are applicable with respect to title
II, except that--
``(1) in applying such provisions with respect to this
title, any reference therein to the Commissioner of Social
Security or the Social Security Administration shall be
considered a reference to the Secretary or the Department of
Health and Human Services, respectively; and
``(2) section 205(h) shall not apply with respect to any
action brought against the Secretary under section 1331 or
1346 of title 28, United States Code, regardless of whether
such action is unrelated to a specific determination of the
Secretary, that challenges--
``(A) the constitutionality of substantive or interpretive
rules of general applicability issued by the Secretary;
``(B) the Secretary's statutory authority to promulgate
such substantive or interpretive rules of general
applicability; or
``(C) a finding of good cause under subparagraph (B) of the
sentence following section 553(b)(3) of title 5, United
States Code, if used in the promulgation of substantive or
interpretive rules of general applicability issued by the
Secretary.''.
(b) Construction of Hearing Rights Relating to
Determinations by the Secretary Regarding Agreements With
Providers of Services.--Section 1866(h) of the Social
Security Act (42 U.S.C. 1395cc(h)) is amended by adding at
the end the following new paragraph:
``(3) For purposes of applying paragraph (1), an
institution or agency dissatisfied with a

[[Page S9471]]

determination by the Secretary described in such paragraph
shall be entitled to a hearing thereon regardless of
whether--
``(A) such determination has been made by the Secretary or
by a State pursuant to an agreement entered into with the
Secretary under section 1864; or
``(B) the Secretary has imposed or may impose a remedy,
penalty, or other sanction on the institution or agency in
connection with such determination.''.

SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY
CERTAIN MEANS.

(a) In General.--Except as provided in subsection (b) and
notwithstanding sections 1815(a), 1842(b), and
1861(v)(1)(A)(ii) of the Social Security Act (42 U.S.C.
1395g(a), 1395u(a), and 1395x(v)(1)(A)(ii)), or any other
provision of law, for purposes of applying sections
1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 of such
Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii),
1395gg, and 1395ddd), the Secretary may not offset any future
payment to a health care provider to recoup a previously made
overpayment, but instead shall establish a repayment plan to
recoup such an overpayment.
(b) Exception.--This section shall not apply to cases in
which the Secretary finds evidence of fraud or similar fault
on the part of such provider.

SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAYMENTS IF
APPEAL PENDING.

(a) Notwithstanding any provision of law, for purposes of
applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870,
and 1893 of the Social Security Act (42 U.S.C.
1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, and
1395ddd), the Secretary may not take any action (or authorize
any other person, including any fiscal intermediary, carrier,
and contractor under section 1893 of such Act (42 U.S.C.
1395ddd)) to recoup an overpayment during the period in which
a health care provider is appealing a determination that such
an overpayment has been made or the amount of the
overpayment.
(b) Exception to this section shall not apply to cases in
which the Secretary finds evidence of fraud or similar fault
on the part of such provider.

TITLE II--APPEALS PROCESS REFORMS

SEC. 201. REFORM OF POST-PAYMENT AUDIT PROCESS.

(a) Communications to Physicians.--Section 1842 of the
Social Security Act (42 U.S.C. 1395u) is amended by adding at
the end the following new subsection:
``(u)(1)(A) Except as provided in paragraph (2), in
carrying out its contract under subsection (b)(3), with
respect to physicians' services, the carrier shall provide
for the recoupment of overpayments in the manner described in
the succeeding subparagraphs if--
``(i) the carrier or a contractor under section 1893 has
not requested any relevant record or file; and
``(ii) the case has not been referred to the Department of
Justice or the Office of Inspector General.
``(B)(i) During the 1-year period beginning on the date on
which a physician receives an overpayment, the physician may
return the overpayment to the carrier making such overpayment
without any penalty.
``(ii) If a physician returns an overpayment under clause
(i), neither the carrier nor the contractor under section
1893 may begin an investigation or target such physician
based on any claim associated with the amount the physician
has repaid.
``(C) The carrier or a contractor under section 1893 may
not recoup or offset payment amounts based on extrapolation
(as defined in section 1861(uu)(2)) if the physician has not
been the subject of a post-payment audit.
``(D) As part of any written consent settlement
communication, the carrier or a contractor under section 1893
shall clearly state that the physician may submit additional
information (including evidence other than medical records)
to dispute the overpayment amount without waiving any
administrative remedy or right to appeal the amount of the
overpayment.
``(E) As part of the administrative appeals process for any
amount in controversy, a physician may directly appeal any
adverse determination of the carrier or a contractor under
section 1893 to an administrative law judge.
``(F)(i) Each consent settlement communication from the
carrier or a contractor under section 1893 shall clearly
state that prepayment review (as defined in section
1861(uu)(3)) may be imposed where the physician submits an
actual or projected repayment to the carrier or a contractor
under section 1893. Any prepayment review shall cease if the
physician demonstrates to the carrier that the physician has
properly submitted clean claims (as defined in section
1816(c)(2)(B)(i)).
``(ii) Prepayment review may not be applied as a result of
an action under section 201(a), 301(b), or 302.
``(2) If a carrier or a contractor under section 1893
identifies (before or during post-payment review activities)
that a physician has submitted a claim with a coding,
documentation, or billing inconsistency, before sending any
written communication to such physician, the carrier or a
contractor under section 1893 shall contact the physician by
telephone or in person at the physician's place of business
during regular business hours and shall--
``(i) identify the billing anomaly;
``(ii) inform the physician of how to address the anomaly;
and
``(iii) describe the type of coding or documentation that
is required for the claim.''.
(b) Effective Date.--The amendments made by this section
shall take effect 60 days after the date of enactment of this
Act.

SEC. 202. DEFINITIONS RELATING TO PROTECTIONS FOR PHYSICIANS,
SUPPLIERS, AND PROVIDERS OF SERVICES.

(a) In General.--Section 1861 of the Social Security Act
(42 U.S.C. 1395 et seq.) is amended by adding at the end the
following new subsection:

``Definitions Relating to Protections for Physicians, Suppliers, and
Providers of Services

``(uu) For purposes of provisions of this title relating to
protections for physicians, suppliers of medical equipment
and supplies, and providers of services:
``(1) Applicable authority.--The term `applicable
authority' means the carrier, contractor under section 1893,
or fiscal intermediary that is responsible for making any
determination regarding a payment for any item or service
under the medicare program under this title.
``(2) Extrapolation.--The term `extrapolation' means the
application of an overpayment dollar amount to a larger
grouping of physician claims than those in the audited sample
to calculate a projected overpayment figure.
``(3) Prepayment review.--The term `prepayment review'
means the carriers' and fiscal intermediaries' practice of
withholding claim reimbursements from eligible providers even
if the claims have been properly submitted and reflect
medical services provided.''.

SEC. 203. RIGHT TO APPEAL ON BEHALF OF DECEASED
BENEFICIARIES.

Notwithstanding section 1870 of the Social Security Act (42
U.S.C. 1395gg) or any other provision of law, the Secretary
shall permit any health care provider to appeal any
determination of the Secretary under the medicare program on
behalf of a deceased beneficiary where no substitute party is
available.

TITLE III--EDUCATION COMPONENTS

SEC. 301. DESIGNATED FUNDING LEVELS FOR PROVIDER EDUCATION.

(a) Education Programs for Physicians, Providers of
Services, and Suppliers.--Title XVIII of the Social Security
Act (42 U.S.C. 1395 et seq.) is amended by adding at the end
the following new section:

``education programs for physicians, providers of services, and
suppliers

``Sec. 1897. (a) Definitions.--In this section:
``(1) Education programs.--The term `education programs'
means programs undertaken in conjunction with Federal, State,
and local medical societies, specialty societies, other
providers, and the Federal, State, and local associations of
such providers that--
``(A) focus on current billing, coding, cost reporting, and
documentation laws, regulations, fiscal intermediary and
carrier manual instructions;
``(B) place special emphasis on billing, coding, cost
reporting, and documentation errors that the Secretary has
found occur with the highest frequency; and
``(C) emphasize remedies for these improper billing,
coding, cost reporting, and documentation practices.
``(2) Eligible providers.--The term `eligible provider'
means a physician (as defined in section 1861(r)), a provider
of services (as defined in section 1861(u)), or a supplier of
medical equipment and supplies (as defined in section
1834(j)(5)).
``(b) Conduct of Education Programs.--
``(1) In general.--Carriers and fiscal intermediaries shall
conduct education programs for any eligible provider that
submits a claim under paragraph (2)(A).
``(2) Eligible provider education.--
``(A) Submission of claims and records.--Any eligible
provider may voluntarily submit any present or prior claim or
medical record to the applicable authority (as defined in
section 1861(uu)(1)) to determine whether the billing,
coding, and documentation associated with the claim is
appropriate.
``(B) Prohibition of extrapolation.--No claim submitted
under subparagraph (A) is subject to any type of
extrapolation (as defined in section 1861(uu)(2)).
``(c) Safe Harbor.--No submission of a claim or record
under this section shall result in the carrier or a
contractor under section 1893 beginning an investigation or
targeting an individual or entity based on any claim or
record submitted under such subparagraph.
``(3) Treatment of improper claims.--If the carrier or
fiscal intermediary finds a claim to be improper, the
eligible provider shall have the following options:
``(A) Correction of problems.--To correct the
documentation, coding, or billing problem to appropriately
substantiate the claim and either--
``(i) remit the actual overpayment; or
``(ii) receive the appropriate additional payment from the
carrier or fiscal intermediary.
``(B) Repayment.--To repay the actual overpayment amount if
the service was not covered under the medicare program under
this title or if adequate documentation does not exist.

[[Page S9472]]

``(4) Prohibition of eligible provider tracking.--The
applicable authorities may not use the record of attendance
of any eligible provider at an education program conducted
under this section or the inquiry regarding claims under
paragraph (2)(A) to select, identify, or track such eligible
provider for the purpose of conducting any type of audit or
prepayment review.''.
(b) Funding of Education Programs.--
(1) Medicare integrity program.--Section 1893(b)(4) of the
Social Security Act (42 U.S.C. 1395ddd(b)(4)) is amended by
adding at the end the following new sentence: ``No less than
10 percent of the program funds shall be devoted to the
education programs for eligible providers under section
1897.''.
(2) Carriers.--Section 1842(b)(3)(H) of the Social Security
Act (42 U.S.C. 1395u(b)(3)(H)) is amended by adding at the
end the following new clause:
``(iii) No less than 2 percent of carrier funds shall be
devoted to the education programs for eligible providers
under section 1897.''.
(3) Fiscal intermediaries.--Section 1816(b)(1) of the
Social Security Act (42 U.S.C. 1395h(b)(1)) is amended--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B), by striking ``; and'' and
inserting a comma; and
(C) by adding at the end the following new subparagraph:
``(C) that such agency or organization is using no less
than 1 percent of its funding for education programs for
eligible providers under section 1897.''.
(c) Effective Date.--The amendments made by this section
shall take effect 60 days after the date of enactment of this
Act.

SEC. 302. ADVISORY OPINIONS.

(a) Straight Answers.--
(1) In general.--Fiscal intermediaries and carriers shall
do their utmost to provide health care providers with one,
straight and correct answer regarding billing and cost
reporting questions under the medicare program, and will,
when requested, give their true first and last names to
providers.
(2) Written requests.--
(A) In general.--The Secretary shall establish a process
under which a health care provider may request, in writing
from a fiscal intermediary or carrier, assistance in
addressing questionable coverage, billing, documentation,
coding and cost reporting procedures under the medicare
program and then the fiscal intermediary or carrier shall
respond in writing within 30 business days with the correct
billing or procedural answer.
(B) Use of Written Statement.--
(i) In general.--Subject to clause (ii), a written
statement under paragraph (1) may be used as proof against a
future payment audit or overpayment determination under the
medicare program.
(ii) Extrapolation prohibition.--Subject to clause (iii),
no claim submitted under this section shall be subject to
extrapolation.
(iii) Limitation on application.--Clauses (i) and (ii)
shall not apply to cases of fraudulent billing.
(C) Safe harbor.--If a physician requests an advisory
opinion under this subsection, neither the fiscal
intermediary, the carrier, nor a contractor under section
1893 of the Social Security Act (42 U.S.C. 1395ddd) may begin
an investigation or target such physician based on any claim
cited in the request.
(b) Extension of Existing Advisory Opinion Provisions of
Law.--Section 1128D(b) of the Social Security Act (42 U.S.C.
1320a-7d(b)) is amended--
(1) in paragraph (4), by adding at the end the following
new subparagraph:
``(C) Safe harbor.--If a party requests an advisory opinion
under this subsection, neither the fiscal intermediary, the
carrier, nor a contractor under section 1893 may begin an
investigation or target such party based on any claim cited
in the request.''; and
(2) in paragraph (6), by striking, `` and before the date
which is 4 years after such date of enactment''.

TITLE IV--SUSTAINABLE GROWTH RATE REFORMS

SEC. 401. INCLUSION OF REGULATORY COSTS IN THE CALCULATION OF
THE SUSTAINABLE GROWTH RATE.

(a) In General.--Section 1848(f)(2) of the Social Security
Act (42 U.S.C. 1395w-4(f)(2)) is amended--
(1) by redesignating subparagraphs (A) through (D) as
clauses (i) through (iv), respectively;
(2) by striking ``Specification of growth rate.--The
sustainable growth rate'' and inserting ``Specification of
growth rate.--
``(A) In general.--The sustainable growth rate''; and
(3) by adding at the end the following new subparagraphs:
``(B) Inclusion of sgr regulatory costs.--The Secretary
shall include in the estimate established under clause (iv)--
``(i) the costs for each physicians' service resulting from
any regulation implemented by the Secretary during the year
for which the sustainable growth rate is estimated, including
those regulations that may be implemented during such year;
and
``(ii) the costs described in subparagraph (C).
``(C) Inclusion of other regulatory costs.--The costs
described in this subparagraph are any per procedure costs
incurred by each physicians' practice in complying with each
regulation promulgated by the Secretary, regardless of
whether such regulation affects the fee schedule established
under subsection (b)(1).
``(D) Inclusion of costs in regulatory impact analyses.--
With respect to any regulation promulgated on or after
January 1, 2001, that may impose a regulatory cost described
in subparagraph (B)(i) or (C) on a physician, the Secretary
shall include in the regulatory impact analysis accompanying
such regulation an estimate of any such cost.''.
(b) Effective Date.--The amendments made by subsection (a)
shall apply with respect to any estimate made by the
Secretary of Health and Human Services on or after the date
of enactment of this Act.

TITLE V--STUDIES AND REPORTS

SEC. 501. GAO AUDIT AND REPORT ON COMPLIANCE WITH CERTAIN
STATUTORY ADMINISTRATIVE PROCEDURE
REQUIREMENTS.

(a) Audit.--The Comptroller General of the United States
shall conduct an audit of the compliance of the Health Care
Financing Administration and all regulations promulgated by
the Department of Health and Human Resources under statutes
administered by the Health Care Financing Administration
with--
(1) the provisions of such statutes;
(2) subchapter II of chapter 5 of title 5, United States
Code (including section 553 of such title); and
(3) chapter 6 of title 5, United States Code.
(b) Report.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General shall submit
to Congress a report on the audit conducted under subsection
(a), together with such recommendations for legislative and
administrative action as the Comptroller General determines
appropriate.

SEC. 502. GAO STUDY AND REPORT ON PROVIDER PARTICIPATION.

(a) Study.--The Comptroller General of the United States
shall conduct a study on provider participation in the
medicare program to determine whether policies or enforcement
efforts against health care providers have reduced access to
care for medicare beneficiaries. Such study shall include a
determination of the total cost to physician, supplier, and
provider practices of compliance with medicare laws and
regulations, the number of physician, supplier, and provider
audits, the actual overpayments assessed in consent
settlements, and the attendant projected overpayments
communicated to physicians, suppliers, and providers as part
of the consent settlement process.
(b) Report.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General shall submit
to Congress a report on the study conducted under subsection
(a), together with such recommendations for legislative and
administrative action as the Comptroller General determines
appropriate.

SEC. 503. GAO AUDIT OF RANDOM SAMPLE AUDITS.

(a) Audit.--The Comptroller General of the United States
shall conduct an audit to determine--
(1) the statistical validity of random sample audits
conducted under the medicare program before the date of the
enactment of this Act;
(2) the necessity of such audits for purposes of
administering sections 1815(a), 1842(a), and
1861(v)(1)(A)(ii) of the Social Security Act (42 U.S.C.
1395g(a), 1395u(a), and 1395x(v)(1)(A)(ii));
(3) the effects of the application of such audits to health
care providers under sections 1842(b), 1866(a)(1)(B)(ii),
1870, and 1893 of such Act (42 U.S.C. 1395u(a),
1395cc(a)(1)(B)(ii), 1395gg, and 1395ddd); and
(4) the percentage of claims found to be improper from
these audits, as well as the proportion of the extrapolated
overpayment amounts to the overpayment amounts found from the
analysis of the original sample.
(b) Report.--Not later than 18 months after the date of the
enactment of this Act, the Comptroller General shall submit
to Congress a report on the audit conducted under subsection
(a), together with such recommendations for legislative and
administrative action as the Comptroller General determines
appropriate.
______

By Mr. WARNER:
S. 3132. A bill to expand the boundary of the George Washington
Birthplace National Monument, and for other purposes; to the Committee
on Energy and Natural Resources.se

GEORGE WASHINGTON BIRTHPLACE NATIONAL MONUMENT BOUNDARY ADJUSTMENT ACT
OF 2000

Mr. WARNER. Mr. President, the man who would later become America's
first president, George Washington, was born at Popes Creek Plantation
on the banks of the Potomac River in 1732. Although most Americans are
familiar with his later residence at Mt. Vernon, fewer people know that
George Washington's childhood was spent on this sprawling 550 acre
plantation in Westmoreland County, Virginia.
The Washington family first settled at Popes Creek in 1656 when John
Washington, great-grandfather of George Washington, acquired the
property. Although he later moved to Mt. Vernon, most historians agree
George Washington returned on a regular basis to his birthplace.
Located on the property is the Washington family cemetery that is the
final resting place for

[[Page S9473]]

George Washington's father, grandfather, and great-grandfather. To this
day, Washington family descendants continue to live in the area.
In 1930, Congress recognized the historic importance of this site to
the nation and created the George Washington Birthplace National
Monument. The park is truly a national treasure which tells of George
Washington's formative years. In addition to providing an excellent
example of colonial life, the park contains acres of woodlands,
wetlands, and agricultural fields. I am told numerous bald-eagles now
call the park home.
In this age of rapid development, it is remarkable that despite the
passage of two hundred and sixty-eight years, the Popes Creek area is
remarkably unchanged since the time of George Washington's birth. The
131,099 annual visitors to the park can still experience a rural,
pastoral countryside that George Washington would recognize. Much of
the credit for this bucolic atmosphere is due to the efforts of the
owners of the private property surrounding the park. They have done
their best to avoid developing the property adjacent to the park. But,
as these landowners gradually decide they wish to sell their property,
I believe the Park Service should acquire the surrounding property to
preserve this historic setting for future generations. The alternative
is to risk development that could forever scar this beautiful national
landmark.
Today, I am introducing legislation to expand the boundary of the
George Washington Birthplace National Monument by allowing the U.S.
Park Service to acquire portions of the surrounding property from
willing sellers. As a nation, it is our duty to preserve America's
heritage for future generations. I urge my colleagues to support the
preservation of George Washington's birthplace.
______

By Mr. BAUCUS (for himself and Mr. Burns):
S. 3133. A bill to provide compensation to producers for
underestimation of wheat protein content; to the Committee on
Agriculture, Nutrition, and Forestry.

wheat protein mismeasurement compensation act

Mr. BAUCUS. Mr. President, I rise today to introduce the bill which
will provide long-overdue compensation to agricultural producers in my
state and across the country. The ``Wheat Protein Mismeasurement
Compensation Act'' provides a legislative remedy for producers who
suffered a loss due to the U.S. Department of Agriculture's erroneous
underestimation of their wheat protein content for wheat sold between
May 2, 1993 and January 24, 1994.
In May 1993, the Secretary of Agriculture, acting through the Federal
Grain Inspection Service, required the use of new technology for
determining the protein content of wheat. However, the calibrations
provided by the Secretary for the new protein measurement instruments
were erroneous and resulted in protein determinations that were lower
than those produced by the technology in use before use of the new
technology was required.
As a result of this miscalibration and the USDA's failure to provide
adequate notice and opportunity for comment, hundreds of wheat
producers in my state were forced to adjust their protein measurement
and pricing system in order to protect themselves on resale. The result
was a significant loss of revenue from the sale of high-protein wheat.
Mr. President, I have worked on this issue for several years--first
as a case for my injured Montana producers. In a perfect this world,
this problem would have been resolved by the USDA at an administrative
level immediately after the miscalibration was identified and
readjusted. Instead, it has lagged on and on and on. Unfortunately this
matter for technical sovereign immunity reasons cannot be resolved in
the courts. That is why we in Congress are their last chance at getting
this resolved once and for all.
It is clearly, however, that these wheat producers by no fault of
their own were injured by the USDA's implementation of a flawed system.
But for that error, they would have received a fair price for their
wheat. At a time when the agricultural community continues to suffer
from record low prices and disastrous weather conditions, this
continued injustice is simply unacceptable. We must do all in our power
to correct this problem and justly compensate our producers for their
losses.
I urge my colleagues to assist us in the expeditious passage of this
legislation.
Mr. BURNS. Mr. President I rise today to join my colleague from
Montana in introducing the Wheat Protein Mismeasurement Compensation
Act. In 1993 the Federal Grain Inspection Service changed the
technology used to determine the protein content of wheat. As a result
a number of producers were harmed.
The issue has had our attention for a number of years, and has
cumulated in a recent exercise over the past few months to find a
resolution. The simple fact is that the USDA has failed to work with
the farmers harmed so we can determine the actual financial impact to
all producers. However, I am very confident we can address the losses
shouldered by Montana's producers with the $465 million cap in this
legislation.
My number one priority is to ensure that those producers who were
harmed by the Federal Government's miscalculation are fully reimbursed
for their losses. As we work this bill through the legislative process
I believe we may need to readdress the section on the amount of
compensation for the attorneys, but only time will tell. I believe this
bill is a good step forward, and I welcome a process that will make
USDA sit down face to face with these producers and compensate those
that were harmed by the mismeasurements.
______

By Mr. BAUCUS:
S. 3134. A bill to amend the Internal Revenue Code of 1986 to provide
an income tax credit for certain charitable conservation contributions
of land by small farmers and ranchers, and for other purposes; to the
Committee on Finance.

RURAL HERITAGE CONSERVATION ACT

Mr. BAUCUS. Mr. President, our nation's agricultural heritage is a
rich tradition, which encompasses much of what we are about as a
people; hard work, common sense, and a deep respect for the land.
In Montana, and in too many communities across America, our
agricultural heritage is at risk. Productive farms and ranches that
have been in the same family for generations are being forced to turn
their back on the land they love in order to make ends meet.
I applaud our current conservation easement system and the many fine
non-profit organizations that have worked with landowners across
America to protect millions of acres of land. The successes have been
great, but so too have the lessons.
What we have learned is that the current system does not work
particularly well for working farmers and ranchers. That's why I've
introduced the Rural Heritage Conservation Act, a creative approach
that provides farmers and ranchers with a real incentive to preserve
their, and our, agricultural heritage.
Over the past twenty-five years, over 3 million acres of agricultural
land have been lost to development in Montana alone. Many of these
acres were lost when family farms, hit hard by tough times, chose to
give up their generations of old farming operations and sell to
developers in order to pay their outstanding debts.
The measure proposed in this legislation will expand the current
conservation easement tax incentive program with an eye toward making
the system work better for the bulk of real, working farmers and
ranchers who would like to preserve their land for future generations
but for whom the current system does not provide any meaningful
incentive.
Let me give you a real-life example that was presented by my good
friend Jerry Townsend of Highwood Montana before the Senate Finance
Committee's subcommittee on Tax and IRS oversight.
Mr. Townsend testified that when he gave a conservation easement to
the Montana Land Reliance, the value of his deduction was $524,000.
However, under current law, over the last five years he has only been
able to save $1,858 in federal taxes. Not much of an incentive,
particularly when you factor

[[Page S9474]]

in the $2,500 he paid for the appraisal required to complete the
conservation easement process.
The Rural Heritage Conservation Act will do three things.
First, it will create a targeted, limited tax credit for farm and
ranch filers who donate a conservation easement to a qualified land
trust. Mr. Townsend's example is all too familiar a story to farmers
and ranchers throughout America. The relatively small deduction they
can obtain under current law does not in any way equate to either the
potential income they have forfeited or the value the public has gained
from the donation. As a result, fewer and fewer farmers and ranchers
are donating conservation easements and protecting their land for
future generations.
To protect against abuse, the bill calls for a cap on the total tax
credit available under the program and requires that a majority of the
income for the qualifying filer be from farm and ranch operations.
Second, this legislation will level the playing field for all types
of agricultural filers. Current law allows C-Corps to deduct up to 10
percent of their income compared to the 30% allowed for other business
types including Limited Liability Companies, Sole Proprietorships and
Limited Liability Partnerships.
According to figures presented by the Montana Land Reliance, there
are some 40,000 acres of land in Montana alone owned by C-Corporations,
in most cases family held, that have identified the 10 percent limit as
a barrier to their contributing an easement.
Third, the bill would eliminate the current provision that limits
additional estate tax relief to landowners only within a 25 mile radius
of a metropolitan area.
As we have discussed at some length in this very chamber, estate tax
is a significant issue for many Americans, including those who live in
farm and ranch households. The current radius restriction works to the
financial disadvantage of people who live in states with sparse
populations.
Elimination of the radius will be a significant improvement to
current law and will enable many rural families to pass along to future
generations family farms and ranches that are so much a part of the
very heart of America.
Protecting our agricultural heritage and the land that makes it
possible is good public policy. I believe that the Agricultural
Heritage Preservation Act is a creative, common sense approach to
improving the current conservation easement program and making it work
better to meet this important goal. I'm not claiming that this approach
is the ``perfect'' approach, or the only way to accomplish our goals.
But it's clear that the current system does not work effectively for
small farmers and ranchers and we must do more. I hope that the
introduction of this bill will initiate an informed, intelligent
discussion of this important matter. We must find the best way to solve
this problem that threatens the conservation of our agricultural lands
and rural way of life.
I hope that as we consider other land conservation initiatives and
other measures to make significant changes to the estate tax system,
that the changes I'm proposing in the Rural Heritage Conservation Act
will be a key part of the discussion.
______

By Mr. GRAMS:
S. 3138. A bill to amend the Internal Revenue Code of 1986 to
increase the amount and availability of the child tax credit and make
the credit refundable; to the Committee on Finance.

helping american families

Mr. GRAMS. Mr. President, I will talk for a couple of minutes about
one of the issues about which I am most passionate, and that is taxes,
or the overtaxation of the American people in a time of surpluses, and
the refusal of this Congress, this President, to even make an attempt
to have meaningful tax cuts or meaningful tax relief before the end of
this Congress.
In 1997, the Congress passed and the President signed into law my
$500-per-child tax credit legislation. As a result, today about 40
million children in this country receive this tax credit every year,
and it returns a total of about $20 billion a year in tax savings to
families. That is money that families can use for savings for their
children's education, for day care, for tutors, for braces, a new
washer, dryer--anything--a family vacation. But it is what the family
decides to spend their hard-earned money on, rather than waiting for a
handout from Washington.
In fact, for the first time since the 1980s, this tax credit and
other Republican-initiated tax cuts have reduced the tax burden for
low- and middle-income families. I have heard many of my colleagues on
the other side of the aisle bragging about how some people in the
United States are paying less taxes today--and that is true--but it is
mainly true because of the $500-per-child tax credit, nothing else that
this administration or this Congress has done.
Despite this tax credit, the total tax burden is still way too high
for working Americans. Today, let's look at an average two-income
family. The median two-income family pays $26,759 in Federal, State,
and local taxes. Let's compare this with back in 1992. Those taxes were
$21,320 a year--a 26-percent increase in the tax burden for average
families in just the last 8 years of the Clinton administration. That
is according to the Nonpartisan Tax Foundation. To date, $26,759; 8
years ago, $21,320.
That shows the increase in taxes to the median-income family--not the
rich of this country. They are paying more in taxes, as well. But it is
the average working family that is paying the brunt of the tax
increases imposed by this administration. Again, that is according to
the Nonpartisan Tax Foundation. Total taxes nationwide claim 39 percent
of hard-earned income, and that is more than the typical family in this
country pays for food, clothing, shelter, and transportation combined.
In the past few years, over 20 million Americans earning between
$30,000 and $50,000 have been pushed from the 15-percent tax bracket
into the 28-percent tax bracket due to our unfair tax system. They are
paying almost twice as much for those incomes, pushed from the 15-
percent to the 28-percent tax bracket. As low-income and minimum wage
workers work harder and pay more, their payroll taxes also increase,
taking a huge bite out of their hard-earned dollars--dollars that I
believe are desperately needed to keep those families above the poverty
line.
Taxes collected by the Federal Government have reached 20.6 percent
of all national income. That is the highest level since World War II.
The government takes one-fifth of every dollar produced in this country
every year. In the next 10 years, working Americans will pay taxes that
will contribute to an over $2.2 trillion non-Social Security surplus.
This non-Social Security surplus will be $2.2 trillion and that is even
after assuming government spending is increasing along with the level
and rate of inflation. This non-Social Security surplus comes from
increased personal taxes and the realization of our capital gains
taxes.

I believe this money should be returned to working Americans in the
form of some tax relief, debt reduction, and also Social Security
reform. Yes, overtaxed American families still need tax relief today. I
believe using some of the non-Social Security surplus to expand the
$500-per-child tax credit is one of the right things to do because
Washington, again, is taking more taxes from American families at a
time when it doesn't need the money as bad as families do.
I have repeatedly argued in this Chamber that the family has been and
will continue to be the bedrock of our society. Strong families make
strong communities, strong communities make for a strong America, and
our tax policies should strengthen families and should be there to
reestablish the value of families.
Between 1960 and 1985, Federal taxes on American families increased
significantly. For families with 4 children, the Federal income tax
rate increased 223 percent; for families with two children the rate
increased 43 percent. The inflation-adjusted median income for families
with children also decreased between 1973 and 1994. So its income was
going down and taxes were still going up.
While the 1997 Taxpayer Relief Act, which included my $500-per-child
tax

[[Page S9475]]

credit, has helped to change this situation, there is still room for
improvement, a lot of room for a lot of improvement. For example,
combined with the dependent exemption, the tax benefits for families
raising children still falls well below both the inflation-adjusted
value of the original dependent exemption, and also the actual cost of
raising children according to Minnesota's Children Defense Fund.
In addition, this child tax credit and the income threshold for
families qualifying for credit are not indexed for inflation. As a
result, the value of this child tax credit would also shrink in the
future and fewer families would qualify for the credit.
That is why I am introducing tonight legislation aimed at expanding
the tax credit. My legislation would increase the tax credit from $500
per child to $1,000, and it would be adjusted for inflation every year.
It would also index the income threshold for families qualifying for
this tax credit.
While I strongly support this increase as well as the marriage
penalty repeal and getting rid of the death tax, the only way we will
achieve meaningful tax relief is to reform our entire tax system
completely. Even my legislation today, I look at as just an interim
step toward this very essential goal of having a tax system that is
simple, fair, and easy to understand.
With these proposed improvements we would allow overtaxed working
families with children to keep a little bit more of their own money--
give them the opportunity to spend it on their own priorities, not
looking for a handout from Washington, not saying they need another
program from Washington, not that they want another big government
approach--but allowing them to keep some of their dollars so they can
make the determination on how they want to spend their money, a little
bit more of their own money, to spend on their own priorities. I urge
my colleagues to support this legislation.
Mr. SESSIONS. Mr. President, I say to Senator Grams, I think this is
another insightful bit of tax relief policy you are promoting. I look
forward to studying it. People think sometimes this is not possible. I
don't think we stop to celebrate enough the wonderful thing that
happened when, under your leadership and that of a lot of others who
worked on it, we were able to provide a $500-per-child tax credit to
working families in America. A mother with two children will now have,
today, $1,000 more a year--nearly $80 a month with which they can buy
shoes or fix the muffler on the car, take the kids on a trip or to a
movie or out for a meal. It is the kind of thing that was really great.
People said it could not be done and it was done.
I think these other proposals the Senator makes are realistic and
also can be done.
We need to continue to work at this. The question is whether the
American people are going to be able to keep this money or are we going
to allow more and more to come to Washington as it grows more and more
powerful and the power and wealth and independence of American citizens
grows weaker and weaker.
Mr. GRAMS. The Senator from Alabama is right. If we look at it, at a
time of overtaxation, when American workers are getting up every
morning, working hard, and sending this money to Washington, and then
it is overtaxed--we are not talking about cutting taxes at all. We are
talking right now about returning some of the surplus to make sure
those people who worked hard and produced this windfall get it back.
We tell our children: If you find a wallet on the street with $1,000
dollars in it, the first thing you should do is try to return it to the
owner. Make sure you give the money back. Washington has found a wallet
with $2.2 trillion in it, and they won't give it back. They are trying
to find a way to spend it. I think our hard-working families deserve
some tax credit along with debt reduction and securing Social Security,
rather than leaving it for the big spenders in Washington to decide how
they want to divvy up and dole out their money.
Mr. SESSIONS. I think my colleague also makes an excellent point
about this percentage of the total gross domestic product. People say
we cannot afford a tax cut, but we have reached record levels of a
total gross domestic product that is being taken by the Government.
These suggestions the Senator makes are worthwhile. We need to be
working on that and the marriage penalty and the estate tax and a lot
of other things around here which we can afford. I thank my colleague.
Mr. GRAMS. I thank the Senator from Alabama for his support.
______

Mr. McCONNELL (for himself and Mr. Bunning):
S. 3140. A bill to transfer administrative jurisdiction over land of
the Tennessee Valley Authority within the Daniel Boone National Forest
to the Secretary of Agriculture and compensate the Authority for the
transfer; to the Committee on Environment and Public Works.

kentucky national forest land transfer act of 2000

Mr. McCONNELL. Mr. President, I rise today to introduce the Kentucky
National Forest Land Transfer Act of 2000. The purpose of this
legislation is to provide an equitable solution to a problem that
exists in Kentucky--specifically, to allow the Tennessee Valley
Authority (TVA) to donate mineral rights, which it owns, to the Forest
Service in exchange for compensation through the sale of other mineral
rights in the Federal land inventory.
Mr. President, I would like to take a moment to give my colleagues
some background on this issue and why this is necessary. During the
1960's, TVA purchased coal mineral rights on land that was later
designated as the Daniel Boone National Forest. Today, TVA owns 40,000
acres of mineral rights under the forest.
This past July, TVA announced that it no longer had a need for these
extensive mineral rights, and announced that after a 15-day comment
period, it intended to auction the rights to a coal operator to mine
the land. In TVA's view, this was a way to get much needed funds to pay
down the $26 billion debt which they have amassed over the years. Since
TVA originally had purchased the land with ratepayer funds, they were
unwilling simply to donate the land, and consequently defended their
proposal to auction off their rights to a coal operator by arguing that
they currently have the ability to mine the land since they owned the
mineral rights before the forest was created.
As you can imagine, Mr. President, this proposal hit a nerve with
Kentuckians, who were quick to express their outrage at the proposition
that TVA could allow mining in the Daniel Boone National Forest. The
Courier-Journal, in an editorial published on August 7, 2000, wrote
that TVA's proposal was a ``rush to judgment'' that failed to take the
public interest into consideration. The editorial went on to say that
``the best outcome, obviously, would be for the U.S. Forest Service to
control the mineral rights under the acreage that it manages. And if
there are legal problems to overcome in arranging that, the auction
should be held up until Congress can remove them.'' Mr. President, that
is essentially what my legislation will achieve. I would like to submit
the editorial for the Record.
Well, Mr. President, both Congress and TVA responded to the public
outcry. First, Senator Bunning offered an amendment to the Energy and
Water Appropriations bill requiring TVA to conduct an Environmental
Impact Study (EIS) before it could move forward on its proposal to
auction off mineral rights. In response to that, a week later, TVA
withdrew its auction plan, citing its concern that the proposal had
sent the wrong signals. Despite these developments, the interested
parties continued to press their case for transferring the mineral
rights to the Forest Service, and again, I say, Mr. President, that is
exactly what my bill will do.
My bill is a compromise solution that will protect the forest and
protect TVA's ratepayers, by compensating TVA. This legislation is
narrowly crafted to require TVA to donate the mineral rights under the
Daniel Boone to the Forest Service in exchange for the right to sell
other mineral rights owned by the Interior Department. Under this
agreement, TVA will receive fair market value from the sale, which it
can then use to reduce its burgeoning debt.
My bill has the support of TVA and the Forest Service, and is
necessary in

[[Page S9476]]

order to implement the compromise which we have worked to achieve. This
solution is based on the Mt. St. Helens National Volcanic Monument
Completion Act (P.L. 105-279), which allowed for the acquisition of
private mineral rights within the Monument through a swap. That
legislation passed the Senate by unanimous consent. It is my hope that
my colleagues will recognize the merits of my legislation and pass it
with similar support.
Mr. President, we are in the waning days of the 106th Congress and
time is running out to implement this carefully crafted solution, which
is in the best interest of Kentucky's citizens and TVA's ratepayers.
This is a win-win proposition and I urge the Senate to expeditiously
consider and pass this important legislation. Mr. President, I yield
the floor.
I ask unanimous consent that a copy of the bill and an editorial be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 3140

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 ``Kentucky National Forest
Land Transfer Act of 2000''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress finds that--
(1) the United States owns over 40,000 acres of land and
mineral rights administered by the Tennessee Valley Authority
within the Daniel Boone National Forest in the State of
Kentucky;
(2) the land and mineral rights were acquired by the
Tennessee Valley Authority for purposes of power production
using funds derived from ratepayers;
(3) the management of the land and mineral rights should be
carried out in accordance with the laws governing the
management of national forests; and
(4) the Tennessee Valley Authority, on behalf of the
ratepayers of the Authority, should be reasonably compensated
for the land and mineral rights of the Authority transferred
within the Daniel Boone National Forest.
(b) Purposes.--The purposes of this Act are--
(1) to transfer administrative jurisdiction over land of
the Tennessee Valley Authority within the Daniel Boone
National Forest to the Secretary of Agriculture; and
(2) to compensate the Tennessee Valley Authority for the
reasonable value of the transfer of jurisdiction.

SEC. 3. DEFINITIONS.

In this Act:
(1) Covered land.--
(A) In general.--The term ``covered land'' means all land
and interests in land owned or managed by the Tennessee
Valley Authority within the boundaries of the Daniel Boone
National Forest in the State of Kentucky that are transferred
under this Act, including surface and subsurface estates.
(B) Exclusions.--The term ``covered land'' does not include
any land or interest in land owned or managed by the
Tennessee Valley Authority for the transmission of water,
gas, or power, including power line easements and associated
facilities.
(2) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.

SEC. 4. TRANSFER OF ADMINISTRATIVE JURISDICTION OVER COVERED
LAND.

(a) In General.--All covered land is transferred to the
administrative jurisdiction of the Secretary to be managed in
accordance with the laws (including regulations) pertaining
to the National Forest System.
(b) Authority of Secretary of Interior Over Mineral
Resources.--The transfer of the covered land shall be subject
to the authority of the Secretary of the Interior with
respect to mineral resources underlying National Forest
System land, including laws pertaining to mineral leasing and
the Surface Mining Control and Reclamation Act of 1977 (30
U.S.C. 1201 et seq.).
(c) Surface Mining.--No surface mining shall be permitted
with respect to any covered land except as provided under
section 522(e)(2) of the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1272(e)(2)).

SEC. 5. MONETARY CREDITS.

(a) In General.--In consideration for the transfer provided
under section 4, the Secretary of the Interior shall provide
to the Tennessee Valley Authority monetary credits with a
value of $4,000,000 that may be used for the payment of--
(1) not more than 50 percent of the bonus or other payments
made by successful bidders in any sales of mineral, oil, gas,
or geothermal leases in the contiguous 48 States under--
(A) the Mineral Leasing Act (30 U.S.C. 181 et seq.);
(B) the Outer Continental Shelf Lands Act (43 U.S.C. 1331
et seq.); or
(C) the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et
seq.);
(2) not more than 10 percent of the bonus or other payments
made by successful bidders in any sales of mineral, oil, gas,
or geothermal leases in the State of Alaska under the laws
referred to in paragraph (1);
(3) not more than 50 percent of any royalty, rental, or
advance royalty payment made to the United States to maintain
any mineral, oil, gas, or geothermal lease in the contiguous
48 States issued under the laws referred to in paragraph (1);
or
(4) not more than 10 percent of any royalty, rental, or
advance royalty payment made to the United States to maintain
any mineral, oil, gas, or geothermal lease in the State of
Alaska issued under the laws referred to in paragraph (1).
(b) Value of Credits.--The total amount of credits provided
under subsection (a) shall be considered equal to the fair
market value of the covered land.
(c) Acceptance of Credits.--
(1) In general.--The Secretary of the Interior shall accept
credits provided under subsection (a) in the same manner as
cash for the payments described under subsection (a).
(2) Use of credits.--The use of the credits shall be
subject to the laws (including regulations) governing such
payments, to the extent the laws are consistent with this
section.
(d) Treatment of Credits for Distribution to States.--All
credits accepted by the Secretary of the Interior under
subsection (c) for the payments described in subsection (a)
shall be considered to be money received for the purpose of
section 35 of the Mineral Leasing Act (30 U.S.C. 191) and
section 20 of the Geothermal Steam Act of 1970 (30 U.S.C.
1019).
(e) Exchange Account.--
(1) Establishment.--Notwithstanding any other provision of
law, not later than 60 days after the date of enactment of
this Act, the Secretary of the Interior shall establish an
exchange account for the Tennessee Valley Authority for the
monetary credits provided under subsection (a).
(2) Administration.--The account shall--
(A) be established with the Minerals Management Service of
the Department of the Interior; and
(B) have an initial balance of credits equal to $4,000,000.
(3) Use of credits.--
(A) In general.--The credits shall be available to the
Tennessee Valley Authority for the purposes described in
subsection (a).
(B) Adjustment of balance.--The Secretary of the Interior
shall adjust the balance of credits in the account to reflect
credits accepted by the Secretary of the Interior under
subsection (c).
(f) Transfer or Sale of Credits.--
(1) In general.--The Tennessee Valley Authority may
transfer or sell any credits in the account of the Authority
to another person or entity.
(2) Use of transferred credits.--Credits transferred or
sold under paragraph (1) may be used in accordance with this
subsection only by a person or entity that is qualified to
bid on, or that holds, a mineral, oil, or gas lease under--
(A) the Mineral Leasing Act (30 U.S.C. 181 et seq.);
(B) the Outer Continental Shelf Lands Act (43 U.S.C. 1331
et seq.); or
(C) the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et
seq.).
(3) Notification.--
(A) In general.--Not later than 30 days after the transfer
or sale of any credits, the Tennessee Valley Authority shall
notify the Secretary of the Interior of the transfer or sale.
(B) Validity of transfer or sale.--The transfer or sale of
any credit shall not be valid until the Secretary of the
Interior has received the notification required under
subparagraph (A).
(4) Time limit on use of credits.--
(A) In general.--On the date that is 5 years after the date
on which an account is established for the Tennessee Valley
Authority under subsection (e), the Secretary of the Interior
shall terminate the account.
(B) Unused credits.--Any credits that originated in the
terminated account and have not been used as of the
termination date, including any credits transferred or sold
under this subsection, shall expire.

SEC. 6. EXISTING AUTHORIZATIONS.

(a) In General.--Nothing in this Act affects any valid
existing rights under any lease, permit, or other
authorization by the Tennessee Valley Authority on covered
land in effect before the date of enactment of this Act.
(b) Renewal.--Renewal of any existing lease, permit, or
other authorization on covered land shall be at the
discretion of the Secretary on terms and conditions
determined by the Secretary.

SEC. 7. COMPLIANCE WITH ENVIRONMENTAL LAWS.

(a) Definitions.--In this section:
(1) Environmental law.--
(A) In general.--The term ``environmental law'' means all
applicable Federal, State, and local laws (including
regulations) and requirements related to protection of human
health, natural or cultural resources, or the environment.
(B) Inclusions.--The term ``environmental law'' includes--
(i) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(ii) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(iii) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
(iv) the Clean Air Act (42 U.S.C. 7401 et seq.);
(v) the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. 136 et seq.);

[[Page S9477]]

(vi) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.);
(vii) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(viii) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(ix) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(2) Hazardous substance, pollutant or contaminant, release,
and response action.--The terms ``hazardous substance'',
``pollutant or contaminant'', ``release'', and ``response
action'' have the meanings given the terms in section 101 and
other provisions of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
(b) Documentation of Existing Conditions.--
(1) In General.--Not later than 60 days after the date of
enactment of this Act, the Tennessee Valley Authority shall
provide the Secretary all documentation and information that
exists on the environmental condition of the land and waters
comprising the covered land.
(2) Additional documentation.--The Tennessee Valley
Authority shall provide the Secretary with any additional
documentation and information regarding the environmental
condition of the covered land as such documentation and
information becomes available.
(c) Action Required.--
(1) Assessment.--Not later than 120 days after the date of
enactment of this Act, the Tennessee Valley Authority shall
provide to the Secretary an assessment indicating what
action, if any, is required under any environmental law on
covered land.
(2) Memorandum of understanding.--If the assessment
concludes that action is required under any environmental law
with respect to any portion of the covered land, the
Secretary and the Tennessee Valley Authority shall enter into
a memorandum of understanding that--
(A) provides for the performance by the Tennessee Valley
Authority of the required actions identified in the
assessment; and
(B) includes a schedule providing for the prompt completion
of the required actions to the satisfaction of the Secretary.
(d) Documentation Demonstrating Action.--The Tennessee
Valley Authority shall provide the Secretary with
documentation demonstrating that all actions required under
any environmental law have been taken, including all response
actions that are necessary to protect human health and the
environment with respect to any hazardous substance,
pollutant or contaminant, hazardous waste, hazardous
material, or petroleum product or derivative of a petroleum
product on covered land.
(e) Continuation of Responsibilities and Liabilities.--
(1) In general.--The transfer of covered land under this
Act, and the requirements of this section, shall not affect
the responsibilities and liabilities of the Tennessee Valley
Authority under any environmental law.
(2) Access.--The Tennessee Valley Authority shall have
access to the property that may be reasonably required to
carry out a responsibility or satisfy a liability referred to
in paragraph (1).
(3) Additional terms and conditions.--The Secretary may
require such additional terms and conditions in connection
with the transfer of covered land under this Act as the
Secretary considers to be appropriate to protect the interest
of the United States concerning the continuation of any
responsibilities and liabilities under any environmental law.
(4) No effect on responsibilities or liabilities.--Nothing
in this Act affects, directly or indirectly, the
responsibilities or liabilities under any environmental law
of any person with respect to the Secretary.
(f) Other Federal Agencies.--Subject to the other
provisions of this section, a Federal agency that carried or
carries out operations on covered land resulting in the
release or threatened release of a hazardous substance,
pollutant or contaminant, hazardous waste, hazardous
material, or petroleum product or derivative of a petroleum
product for which that agency would be liable under any
environmental law shall pay--
(1) the costs of related response actions; and
(2) the costs of related actions to remediate petroleum
products or their derivatives.
____

[From the Courier-Journal, Aug. 7, 2000]

TVA's Proposal To Auction Boone Forest Mineral Rights Stinks

The period for comment on the Tennessee Valley Authority's
auction of more than 40,000 acres in mineral rights under
Eastern Kentucky's Daniel Boone National Forest has just
closed. But for what it's worth, we'll comment anyway: It
stinks.
Talk about a rush to judgment. Comment was shut off just 15
days after TVA revealed its plan to sell.
Given that it's at least a quasi-public entity, TVA
certainly ought to keep the broad public interest in mind
when it makes major business decisions. TVA should be able to
say what public good will result from selling these mineral
rights to the highest bidder, as if they were some tax
evader's living room furniture being auctioned on the
courthouse steps.
TVA environmental engineer Steve Hillenbrand defends the
sellout (and we do mean to invoke the word ``sellout'' in
both its meanings, the ordinary and the pejorative) by saying
the agency needs money. But on that basis just about any
outrage could be rationalized. Obviously there needs to be
some better justification.
Hillenbrand also said TVA wants out because these mineral
deposits are not in the Tennessee Valley.
Odd. The distance between Eastern Kentucky's coalfields and
the utility's service area never discouraged TVA's interest,
or its coal buyers, before. Indeed, for decades the Kentucky
River coalfield was stripped and augered, its watersheds
compromised, its resources depleted, its people victimized,
for coal to feed the power plants of TVA.
The story of coal barons and their work in Appalachia, on
behalf of TVA, would make a great book, if Upton Sinclair or
Ida Tarbell were still around to write it.
How can TVA simply turn its back on that history and
depart, with the proceeds of its auction?
One newspaper story about the auction said TVA wants at
least $3.5 million, and will sell only to those who agree not
to strip mine. But the legalities are unclear, and protection
for all the national forest land against stripping is not a
sure thing. Nor would such a restriction address the
potential impact of deep mining or oil-and-gas exploration,
which could be devastating.
The best outcome, obviously, would be for the U.S. Forest
Service to control the mineral rights under the acreage that
it manages. And if there are legal problems to overcome in
arranging that, the auction should be held up until Congress
can remove them.
Selling mineral rights to the highest bidder is not a
responsible policy. The National Citizens' Coal Law Project
is right to oppose it, right to call for a full Environmental
Impact Statement on the plan instead of some half-baked
assessment, and right to urge that, if all else fails, only
those with exemplary mining and reclamation records be
allowed to bid.

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