Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I call the Senate's attention to an issue that is very important to our livestock producers and small meatpackers. I know that my colleagues are aware of the difficulties the livestock industry has faced in recent years. In an effort to find solutions for small farmers and livestock producers, the Secretary of Agriculture called three separate commissions: The Advisory Committee on Agricultural Concentration, the National Commission on Small Farms, and the National Advisory Committee on Meat and Poultry Inspection. Each of these commissions has recommended that the ban restricting the interstate distribution of state-inspected meat be lifted. For that reason I have introduced, along with Senators Feingold, Thomas, Brownback, Landrieu, Burns, Enzi, and Roberts, S. 1291, The Interstate Distribution of State-inspected Meat Act. This proposal would lift the ban on interstate distribution of state-inspected beef, pork, and poultry, which are the only products in the United States that face such a restriction. This measure is endorsemed by the Farm Bureau, the Farmers Union, the National Cattlemen's Beef Association, and the American Sheep Industry Association. This issue is one of both fairness and common sense, and I believe it merits consideration by the Senate. I'd like to ask the distinguished Chairman of the Agriculture Committee if he would hold hearings in the Agriculture Committee on this proposal sometime in the near future, so we could promptly consider the measure next year.

Mr. HATCH. I appreciate the willingness of the Chairman of the Agriculture Committee to give this legislation a hearing, and I believe it will make for an interesting one. I look forward to working with the distinguished Senator from Indiana and the Agriculture Committee on this issue.

Mr. HATCH

Mr. HATCH. Mr. President, as I am sure my distinguished colleague, the Chairman of the Subcommittee, is aware, the Food and Drug Administration Modernization Act (FDAMA) included a significant provision related to FDA's review and approval of indirect food additives. For the benefit of my colleagues, these are products that are used for containers, wrappings and packaging of food products. To ensure the safety of indirect food additives, these materials that touch or contain food, the Food and Drug Administration (FDA) must receive safety data submitted by the manufacturer. Often, FDA's process of evaluating these data has been extremely lengthy and has worked to delay the market availability of new and improved products. As a result, many companies have chosen simply not to bring new products to market, thus depriving the public of improvements in products and technology. In order to address this concern, a provision was included in FDAMA which requires the FDA to establish a new and expedited new product notification and review process that will substantially improve the situation for manufacturers of indirect food additives and thus the consumers of packaged food products. However, under section 309 of FDAMA, the provision will only become effective if the FDA receives an appropriation of $1.5 million for FY 1999. Subject to this new appropriation, FDA would be required to set the program in motion by April 1, 1999. I am aware that the House mark does include funding for the indirect food additive pre-market notification program, but at a level of $500,000. While this certainly indicates the intention and willingness of the House to fund the program, unfortunately the amount is not sufficient to meet the specific requirements of FDAMA. I am extremely mindful of the tight allocation under which S. 2159 was crafted, and I recognize that it was not an easy task to bring this bill forward today. I am very grateful for the Subcommittee's efforts under the leadership of Chairman Cochran. At the same time, I hope the Chairman will agree with me that funding of this important FDA reform is critically important and that the conferees will try to work this out so that the new program can be implemented next year. Mr. COCHRAN: The Committee was mindful of this problem, and, in fact, included report language indicating its awareness of the need to implement the premarket notification provisions in order to spur innovation of new and improved food packaging materials. As you said, we are operating under a very tight allocation, but we will do our best to try to work this out.

Mr. HATCH

Mr. HATCH. Mr. President, over the past several years, I have highlighted my growing concern about the Food and Drug Administration's failure to meet statutory deadlines with respect to a number of very important consumer products it regulates, including medical devices, food additives and generic drugs. I would note that enactment of the Food and Drug Administration Modernization Act (FDAMA) is intended to address some of those concerns, especially with respect to innovator drugs. But a very real concern remains about the generic side of the equation. My colleagues should be aware that, despite a requirement in the law that generic applications be acted upon within 180 days, the review time usually takes far longer. In fact, in its budget justification submitted to Congress this February, the agency reveals that only 50% of the applications receive final agency action within the statutory deadline, and the mean review time is 25.6 months. This is a matter of significant concern to me, and, I believe, to the Congress as well. As the Committee noted in the report to accompany S. 2159: In light of the fact that generic drugs provide important cost benefits to consumers and the Federal Government, the Committee also encourages the FDA to devote additional resources to generic drug reviews in order to address the backlog of applications and provide reviews within the 6- month period required by statute. Later, the Committee goes on to say: FDA delays have significant implications for public health. Each FDA delay extends the time it takes for consumers to benefit from new products that provide significant therapeutic benefits. The Committee believes that FDA's statutory obligations to perform its core regulatory activities must remain the agency's top priority. The failure of the FDA to devote sufficient resources to the Office of Generic Drugs is penny-wise but pound-foolish. Generic drugs can provide significant benefits to consumers. They typically enter the market at a price 30% below their brand-name equivalents, and decline in price to 60%-70% below the brand product price over time. Generic drugs have provided consumers with lower cost alternatives to innovator drugs, and they will continue to do so in the future. Over the next decade, a number of important pharmaceutical patents will expire, with cumulative annual sales in the tens of billions of dollars, and with the potential of tremendous consumer benefits. These benefits could be significantly diminished if there are not adequate abbreviated new drug application reviewers. It is as simple as that. Last year, due to the concerted leadership of Chairman Cochran and others, the FDA was directed to submit a detailed operating plan which yielded an increase of $702,000 for the Office of Generic Drugs (OGD). I was, and am, very appreciative of these efforts. It is my understanding that the House Appropriations Committee has provided an additional $1 million to OGD this year; I strongly support the House mark and only wish it could have been even higher. When the agriculture appropriations bill goes to conference, I hope that conferees will build upon last year's record and will continue to increase funding for generic drug reviews. I know that it is always hard to find additional money given the budgetary constraints we face, but a very small amount of money in Federal budget terms can have a very large impact here, especially for those, particularly senior citizens, who lack prescription drug coverage. APHIS/Wildlife Services

Mr. HATCH. Mr. President, the bottom line of this letter was to urge the Chairman and members of the Agriculture Appropriations Subcommittee to increase funding for the cosmetics program to $6 million. I am pleased that the Report accompanying the Senate bill encourages the FDA to restore funding for this program to the funding levels of previous years. Because nearly every American uses a cosmetic product each day, it is important that the regulatory program for cosmetics in the Center for Food Safety and Applied Nutrition's Office of Cosmetics and Colors be adequately funded. I understand that our colleagues on the House side have wisely provided an increase of $2.5 million to keep this program at previous funding levels. I would hope that we can work with our colleagues in the other chamber to see that the final version of this bill that emerges from conference does indeed contain the $2.5 million increase that the House provides and would restore the cosmetic program to the $6 million level.

Mr. HATCH. Mr. President, I would like to commend my friend, the Senator from Mississippi, for his stewardship of this important bill. I rise today to voice my great concern about FDA's recent announced cutbacks in its cosmetic regulatory program. I ask unanimous consent to have printed in the Record a copy of the letter that I sent to the chairman of the Agriculture Appropriations Subcommittee on April 23d which details my concerns about FDA's proposed cuts in the cosmetics program.

Mr. HATCH

Mr. HATCH. Madam President, I never cease to be shocked at some of the arguments made around here. A gas station in a 30-home residence area is going to rise to the dignity of what we are talking about here--give me a break. Houses of prostitution near places of worship-- give me a break. Nobody is arguing about things like that. The State and local areas certainly have total control over those. I am well aware this bill is opposed by the Department of Justice, many localities, some interstate governmental associations, and certain environmental groups. Almost knee-jerked in many respects. I believe their concerns that the bill would hinder local prerogatives and significantly increase the amount of Federal litigation are not only highly overstated but highly misunderstood by them. The bill is carefully drafted to ensure that aggrieved property owners must seek solutions on the local or State level before filing a Federal claim. It sets a limit on how many procedures localities may impose. I don't consider just a few months reasonable procedure. The average case is taking 9\1/2\ years. If you are some poor little property owner, or even a developer, if you want to use some of the language that has been thrown around here and you have a just reason to bring up a takings claim because the State or local or Federal Government has taken your property, you have to have pretty deep pockets to be able to litigate for 9\1/2\ years. The reason you do is some of these localities are acting improperly and using the law to allow these cases to never ripen so that they can be heard. I personally believe that the distinguished Senator from Rhode Island would change his mind if he just looked at the case and realized we are talking about true Federal issues here that should be in Federal court and should be there promptly, not after years of delay by local municipalities and/or other agencies, throwing up logjam after logjam to stop reasonable people from getting reasonable results under the circumstances. This bill will do that. Now, when we originally wrote this bill, when it came from the House, it had provisions in there that caused some angst among people who are truly thoughtful in this area. So we, being truly thoughtful, made changes that aren't just technical, but changes that basically, I thought, solved every problem being raised on the floor today. It is extremely difficult. Let me just say that. Moreover, I seriously doubt that there will be a rush of new litigation flooding Federal courts. This was the conclusion of none other than the Congressional Budget Office contained in the cost estimate section of the committee report accompanying H.R. 1534. Although CBO was unable to ascertain the increase in costs if large claims were allowed to proceed in Federal courts, it did note, after consulting legal experts, that ``only a small proportion [of State cases] would be tried in Federal Court as the result of this H.R. 1534. . . .'' It is extremely difficult to prove a takings claim, and this bill does not in any way redefine what constitutes a taking. These claims are also very expensive to bring. Like I say, the average, over the last 10 years, has been 9\1/2\ years to bring even the most simple claim to fruition or conclusion. That is not what the Founding Fathers thought when they did the fifth amendment allowing and putting in the takings provision. These claims are expensive to bring. Paradoxically, localities' defense of Federal actions may be lessened by the bill, because localities already must litigate property rights claims on Federal ripeness grounds, which take years to resolve. It costs localities more money than they should have to pay. Let me restate this. By providing certainty on the ripeness issue, the bill may very well reduce litigation costs to localities. Substantive takings claims, unless they are likely to prevail on the merits, are simply too hard to prove and too expensive to bring in Federal court. And the issue of ripeness will have been removed by the bill from the already-crowded court dockets. Madam President, it is interesting to note that once many State officials, localities, and State and trade organizations really examine the measure, they rapidly become supporters of the bill. Those supporting the bill or increased vigilance in the property rights arena include the Governors of Tennessee, Wisconsin, Virginia, New Mexico, North Dakota, and South Carolina. They also include the American Legislative Exchange Council, which represents over 3,000 State legislatures, and trade groups such as America's Community Bankers, the National Mortgage Association of America, the National Association of Home Builders, the National Association of Realtors, and the National Federation of Independent Businesses, the organ of small business in this country. They are sick and tired of small businesses being taken advantage of by some of these people in some of these local areas and State areas, and even the Federal areas, in taking their property without just compensation. Then they have to go 9\1/2\ years to vindicate their claims. By the time they get there, the property is not worth anything anyway, or the interest has been consumed by attorney's fees. People who support this bill also include agricultural interests, such as the American Farm Bureau, the American Forest and Paper Association, the National Cattlemen's Beef Association, the National Grange Association, et cetera, et cetera. Just as important, let me point out that 133 House sponsors of the House-passed bill--and that is a bill different from this one, and that bill is subject to some of these criticisms--we have reformed that. The 133 House sponsors of the House-passed bill were former State and local officeholders. They are not stupid. They feel just as deeply about State and local office concerns as anybody on this floor. I find it rather amusing that the distinguished Senator from Rhode Island is so solicitous of State and local areas, having argued on the other side on almost every other issue that has come before the Senate. Let's stop and think about it. I don't believe that these 133 former State and local officeholders would have voted for the bill if it conflicted with local sovereignty. The fact is that it does not conflict with local sovereignty. The fact is that it gives plenty of reasons and plenty of avenues for the local and State and other municipalities to solve these problems. We have bent over backwards trying to accommodate those expressing concern about the bill which passed out of the Senate Judiciary Committee. We met with city mayors, representatives of local governmental organizations, attorneys general, and religious groups, to name a few. Some of these have signed these recent letters. I am not sure they understand any of these issues, let alone how much we have made in changes to this bill. We held group meetings and asked for suggestions and changes to the bill, which would alleviate opposition and concerns. I thank Senators Abraham, Ashcroft, DeWine, Specter, Thompson, and respective staffs, for negotiating and drafting changes to the bill designed to meet the concerns of particularly certain localities. These changes alleviate municipalities' concerns that the bill would become a vehicle for frivolous and novel suits. They remove any incentive the bill may have for property owners to file specious suits against localities. They foster negotiations to resolve problems, and these changes recognize the right of the States and localities to abate nuisances without having to pay compensation. First of all, we created a new section dealing with the award of attorney's fees. In this section, we amended section 1988(b) of title 28 of the U.S. Code, which allows a court to award litigation costs and attorney's fees to the prevailing party in civil rights actions. This change allows a district court to hold the party seeking redress liable for reasonable attorney's fees and costs if the takings claim is not substantially justified. This section was created to address the localities' concerns that they would have to defend expensive, frivolous cases in Federal Court, wasting taxpayers' money. This section eliminates those concerns. I think that the mayor of Salt Lake might have had a different opinion--or other mayors that the distinguished Senator from Rhode Island has cited, or the other Governors that the distinguished Senator from Rhode Island has cited. I have reason to believe that they haven't seen this current substitute that we have here, or they would change, like so many others are changing. The problem is that you get these old bills out--and, yes, there were problems with the old bills, but that is what the legislative process is designed to correct. That is what we are doing here.

Mr. HATCH. Mr. President, let me use part of that. Let me say what the five truths of the bill are. This bill does not affect State or localities or local rights, and it only applies to real property. No. 2, it does nothing to stop localities from zoning or passing or enforcing environmental measures. No. 3, it does not increase Federal litigation against localities, because the bill does not create new law. And takings cases are expensive to bring. The Congressional Budget Office agrees with that. No. 4, what the bill does is it grants property owners their day in court, which is denied in many cases by local court procedures or by local procedures, which at times are like the Minotaur's Labyrinth. No. 5, currently property owners must litigate on average 9\1/2\ years before they can get a Federal court to reach a decision on the merits. No other constitutional right is treated that way. In fact, in Dolan v. City of Tigard, the Supreme Court said, ``We see no reason why the takings clause of the fifth amendment, as much of a part of the Bill of Rights as the first amendment, or fourth amendment should be delegated to the status of a poor relation.'' We are trying to stop that. This bill will do it. We have had hearings on it time after time over the years. We have added on this substitute four additional matters, mainly to help people who have raised concerns. I hope our colleagues will support us on this motion to proceed. Mr. LEAHY addressed the Chair.

Mr. HATCH. Mr. President, the people of Utah, and indeed, of all of our States, have felt the heavy hand of the government erode their right to hold and enjoy private property. I have authored and cosponsored many bills in the past that would protect private property from the jaws of the regulatory state. Our opponents on the left and the radical, so-called environmental groups, however, have been successful so-far in derailing the consideration of more needed reform measures. But I believe we have the opportunity to pass a narrower yet meaningful piece of legislation. The substitute we are considering today, S. 2271, the ``Property Rights Implementation Act,'' narrows H.R. 1534, which passed the House of Representatives on October 23, 1997, by a 248 to 178 vote. After the House passed bill was referred to the Judiciary Committee, we met with local, environmental, and governmental groups in an effort to meet their concerns. The product of those meetings is the S. 2271 substitute. Mr. President, I hope the Senate will allow us to proceed to consideration of this bill. How can we work to further improve this bill if your colleagues will not let us proceed to vote. This is a worthwhile bill that resolves many problems. I call on my colleagues to vote for cloture so that we may address those problems on the merits. The purpose of S. 2271, is, at its root, primarily one of fostering fundamental fairness and simple justice for the many millions of Americans who possess or own property. Many citizens who attempt to protect their property rights guaranteed by the Fifth Amendment of the Constitution are barred from the doors of the federal courthouse. In situations where other than Fifth Amendment property rights are sought to be enforced--such as First Amendment rights, for example-- aggrieved parties generally file in a single federal forum without having to exhaust state and local procedures. This is not the case for property owners. Often they must exhaust all state remedies with the result that they may have to wait for over a decade before their rights are allowed to be vindicated in federal court--if they get there at all. Moreover, the federal jurisdiction over property rights claims against federal agencies and Executive Branch Departments is in a muddle. In these types of cases, property owners face onerous procedural hurdles unique in federal litigation. The Property Rights Implementation Act, if we are allowed to even consider it, primarily addresses the problem of providing property owners fair access to federal courts to vindicate their federal constitutional rights. The bill is thus merely procedural and does not create new substantive rights. Consequently, the bill has two purposes. The first is to provide private property owners claiming a violation of the Fifth Amendment's taking clause some certainty as to when they may file the claim in federal court. This is accomplished by addressing the procedural hurdles of the ripeness and abstention doctrines which currently prevent them from having fair and equal access to federal court. S. 2271 defines when a final agency decision has occurred for purposes of meeting the ripeness requirement and prohibits a federal judge from abstaining from or relinquishing jurisdiction when the case does not allege any violation of a state law, right, or privilege. Thus, S. 2271 serves as a vehicle for overcoming federal judicial reluctance to review takings claims based on the ripeness and abstention doctrines. The second purpose of the bill is to clarify the jurisdiction between the Court of Federal Claims in Washington, D.C., and the regional federal district courts over federal Fifth Amendment takings claims. The Tucker Act grants the Court of Federal Claims exclusive jurisdiction over takings claims seeking compensation. Thus, property owners seeking equitable relief must file in the appropriate federal district court. This division between law and equity is archaic and results in burdensome delays as property owners who seek both types of relief are ``shuffled'' from one court to the other to determine which court is the proper forum for review. S. 2271 resolves this matter by simply giving both courts concurrent jurisdiction over takings claims, thus allowing both legal and equitable relief to be granted in a single forum. I will address this conundrum of the ``Tucker Act shuffle'' in more detail in a later speech. I. how the bill works Let me briefly explain how the procedural aspects of the bill, designed to assure fairness, work. One of the hurdles property owners face when trying to have their Federal claim heard on the merits is the doctrine of abstention. Federal courts routinely abstain their jurisdiction and refer the case to state court, even if there is no State or local claim alleged. This is true only for property rights cases. The bill would clarify that a Federal court shall not abstain its jurisdiction if only Federal claims are alleged. To protect State's rights, the bill allows an unsettled question of State law that arises in the course of the Federal claim to be certified in the highest appellate court of that State, under whatever certification procedures exist in that State. Federal courts would retain their jurisdiction, but the unsettled State law question would be answered in State, not Federal court. In the few States where no certification procedures exist, property owners would be unable to benefit from that expedited procedure. The second hurdle the bill would resolve is the problem of ``ripeness''. Current law requires a property owner to get a ``final decision'' from the land use agency to which he or she has applied before their Federal claim can be heard in Federal court. S. 2271 simply provides an objective definition of a ``final decision'' so that both parties in a land use dispute will know when ``enough is enough.'' The bill outlines the steps a property owner must take to resolve a dispute at the local level before a final decision by the agency in question has been reached. The process clarified by the bill protects both States rights and the individual rights guaranteed by the Fifth Amendment. Before a land use decision is defined as ``final'': A property owner must make a meaningful application for a land use to the agency. If the application is denied, the property owner must make an appeal or seek a waiver of the denial. If rejected a second time, a final decision has been reached unless there is an elected local body with the authority to review land use appeals. In that case the property owner must submit another application and be denied a third time before a decision is defined as final. The bill provides yet another layer of local decision making. In rejecting the property owners land use application, the agency may chose to provide a written explanation for the denial and explain the uses, density, and intensity of development that would be permitted on the property in question. If such an explanation is provided, the decision will not be considered final until the property owner resubmits a new application taking into account the conditions of the original denial. If the property owner is again rejected, and rejected on appeal, the decision is considered final. In all instances, the property owner is exempted from making an appeal or seeking a waiver if no such appeal or waiver exists, or if doing so would be futile. The concept of ``futility'' is established in existing case law. The purpose of this exemption is to ensure that property owners are not trapped in a futile situation where time and money is wasted seeking such relief where the prospect is virtually nonexistent. In short, the bill is very simple and protects the rights of localities by requiring that property owners comply with local procedures before they seek relief in Federal court. II. the Need for Legislation--the ripeness problem Mr. President, let me amplify why this legislation is desperately needed. The first part of the bill deals with the ripeness doctrine, a doctrine which has been misused in a manner that prevents property owners from vindicating what, after all, is a Federal right in Federal court. Let me begin by reminding my colleagues that the Fifth Amendment to the United States Constitution protects individuals from having their private property ``taken'' by the Government without receiving just compensation. A complex body of law has developed from the Takings Clause of the Fifth Amendment and is used by Federal courts to determine whether a ``taking'' has occurred. In conjunction with this complex body of takings law, an equally complex set of procedural doctrines has also developed for use by Federal courts to determine whether the core substantive issues involved in the takings claim are ready to be heard. These procedural doctrines are known as the doctrines of ``ripeness'' and, I might add, ``abstention.'' Under current case law, a takings claim must be ``ripe'' in order to be heard in Federal court. In a key decision entitled Williamson County Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Supreme Court attempted to clarify the principles of the ripeness doctrine. The Court stated that a takings claimant must show: (1) that there has been issued a ``final decision regarding the application of the regulations to the property at issue'' from ``the government entity charged with implementing the regulations,'' and (2) that the claimant requested ``compensation through the procedures the State has provided for doing so.'' [Id. at 194.] A takings plaintiff must meet both requirements before the case will be considered ripe for federal adjudication; if either has not been met, then the claimant will be procedurally barred from bringing such a claim in Federal court. Unfortunately, the lower court decisions which subsequently have attempted to apply the ripeness principles set forth in Williamson County have only served to create much confusion over when a claim becomes ripe. Property owners have been left with no clear understanding of how many proposals or applications must be submitted before their takings claim would be considered ripe. For example, in Southview Assocs. v. Bongartz, 980 F.2d 84, 92 (2d Cir. 1992), cert. denied, 507 U.S. 987 (1993), the U.S. Court of Appeals for the Second Circuit decided a takings claim was not ripe because the landowner ``did not attempt to modify the location of the units or otherwise seek to revise its application.'' The court failed to decide how many reapplications would be necessary to reach the merits. In Schulze v. Milne, 849 F.Supp. 708 (N.D. Cal. 1994), aff'd in part, rev'd in part on other grounds, 98 F.3d 1346 (9th Cir. 1996), property owners submitted a total of thirteen (13) revised plans over three years to renovate their home. Each time they submitted a plan ``in compliance with all applicable zoning laws,'' local officials nonetheless ``refused to approve the plan, and instead informed plaintiffs that there were additional requirements, not found in any zoning or other statutes, which plaintiffs had yet to meet.'' [ Id., 849 F.Supp. at 709.] This is happening in many areas around the country. These examples poignantly illustrate the current confusion concerning when a claim becomes ripe. The current state of disarray that Federal judges and private landowners alike find themselves in can be fixed by the establishment of a set of objective criteria so that all parties will be able to easily discern when a government land use decision is final. This bill will bring that confusion to an end by clearly defining when a Federal takings claim becomes ripe for adjudication and how many final decisions are required before the claim may proceed in Federal court. Additionally, much confusion has existed over the second prong of Williamson County: namely, the requirement that a property owner must exhaust all compensation remedies available under State law. This prong acts to prevent Federal courts from reaching a final decision until the State court definitively rules that it will not entertain a compensation remedy. This problem is exemplified in Santa Fe Village Venture v. City of Albuquerque, 914 F.Supp. 478 (D.N.M. 1995). There, the local city council established a building moratorium to preclude any development on lands near a national monument site. Plaintiff had an option to purchase land within areas subject to the moratorium, but never exercised that option because of the total land use restriction. Rather, plaintiff filed a lawsuit in Federal District Court seeking just compensation from the local government for its inability to develop the property. The first suit was dismissed on ripeness grounds because the property owner never sought a compensation remedy in State court. In other words, exhausting State compensation procedures was necessary to make a Federal claim ripe for resolution. The property owner then filed a second action for inverse condemnation in State court. This case was also dismissed--this time for lack of standing. Plaintiff returned to Federal court raising only Federal claims but had its case dismissed again on ripeness grounds because the Federal claims were not raised in State court despite the State court's previous adjudications. These type of situations will be resolved by the bill by remedying the confusion of the State exhaustion requirement. As you can see in these Federal land use cases from 1983 to 1988, the red part of this, 94.4 percent, is where judges failed to reach the merits of the case--in other words, had ripeness problems--and the 5.6 percent of cases were decided on the merits, where they found that they were ripe. As you can see, the owners of property are just not being treated fairly and this is a constitutional privilege provided for in the fifth amendment of the Constitution, so this is wrong. Let me just note, this is a recent study prepared by the law firm of Linowes and Blocher of Silver Spring, MD, and incorporated into the Record for this bill. Over 80 percent of the takings cases originating in U.S. district courts between 1990 and 1997, as shown on this chart, were dismissed before the merits were ever reached due, again, to the ripeness doctrine. The 81 percent in red is where judges failed to reach the merits of the case because of ripeness problems, and the green is decided on the merits. In those cases where they were decided, they averaged 7 years of total litigation. So you can imagine how the rights are not being protected. Many of these dismissals were tantamount to the termination of the claim because the landowner lacked the adequate financial resources to form an appeal. For those landowners who could afford the high expenses of an appeal, the survey showed that more than half of the takings claims were still dismissed. The red is where judges failed to reach the merits of the case, again, due to ripeness problems. The green is cases, between 1990 and 1997, decided on the merits, and they averaged 9.5 years of litigation. Just think about that. For those landowners who could afford the high expenses of an appeal, the survey showed that more than half of the takings claims were still dismissed. Of those appellate cases that did not pass the ripeness test, 60 percent were remanded for more litigation on the merits. These results underscored the need for this legislation. Further adding to the problem, a Federal court may also abstain from hearing a takings case under the judicially created doctrine of ``abstention.'' This doctrine allows Federal judges to exercise discretion in deciding whether or not to accept cases that are properly under the Federal court's, in this case, jurisdiction. Federal courts are reluctant naturally to adjudicate State political and judicial controversies, so a Federal court will usually abstain anytime that a claim presents a Federal question that would not need to be resolved if an underlying challenged State action of an unsettled State law issue were determined. This is underscored by the Supreme Court case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). Federal courts also abstain from hearing cases which touch on sensitive State regulatory issues which are best left to the state courts. Burford v. Sun Oil Co., 319 U.S. 315 (1943), is an example of this situation. Additionally, federal judges often use the abstention doctrines to refer takings cases back to state courts before reaching the merits of the Fifth Amendment claims. This bill remedies the current abuse of abstention by requiring that Federal courts adjudicate the merits of an aggrieved property owner's claims where those claims are solely based on federal law. On the contrary, if a property owner also raises claims involving state constitutional, statutory or common law claims pendent to the federal claims, then the property owner may not use this bill and the federal court may properly abstain in that type of situation. I have to emphasize that control over land use lies and will remain in the hands of local entities. Private property owners must submit a land use proposal to the local agency for approval which, for many applicants, is the beginning of a negotiation process regarding the permitted land uses. This process, however, can take years for property owners who are left in regulatory limbo due to the local entities' failure to make a final decision as to what land use is permitted. Consequently, property owners are not able to use or develop their land and are effectively denied their fifth amendment rights. While this result could be construed as a fifth amendment taking, I must point out that the applicant is, for all practical purposes, unable to file a claim in Federal court to enforce these constitutional guarantees because local land use authorities do not want to be sued in Federal court and can abuse the system by purposely withholding a final agency decision. To further frustrate the problem, the federal court decisions interpreting the Supreme Court's ``ripeness'' definition are conflicting and confusing, providing little guidance to property owners as to when a case is ``ripe'' for federal adjudication. Moreover, Federal judges are often reluctant to get involved in land use issues. Instead, they usually dismiss takings cases back to state court based on the abstention doctrines or the lack of ripeness. Unfortunately, the overwhelming majority of property owners do not have the time and money necessary to pursue their case through the state court and then re-file it in Federal court. The extensive use of the abstention doctrines by the Federal courts to avoid land use cases, even ones involving only a Federal claim, has created a blockade denying aggrieved land owners access to the Federal court system. This problem is exemplified by the situation presented in Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th Cir. 1996), vacated and remanded, 117 S.Ct. 1659 (1997). Bernadine Suitum, a retiree, was barred from building on her land by a regional planning agency. For seven years, the Federal courts steadfastly refused to consider whether a taking of her property by the government had occurred until the U.S. Supreme Court ruled in an unanimous decision that she will have the right to argue her case in Federal court. This elderly woman's plight has resulted in years of expensive litigation just to have the opportunity to present the merits of her case to a Federal judge. Unfortunately, this situation is far from rare for many takings claimants. Another procedural tool that has been used to construct a barrier to property owners seeking remedies in Federal court has been the use of the doctrines of res judicata and collateral estoppel by Federal judges. Res judicata, also known as claim preclusion, acts as a bar to further claims brought by a party on the same claim where a final judgment on the merits has already been reached. Claim preclusion prevents parties from relitigating claims that were already raised or could have been raised in an earlier lawsuit. Similarly, collateral estoppel, also known as issue preclusion, prevents a plaintiff from relitigating issues that were already decided by a state court. Consequently, a Federal court could preclude a property owner from bringing an otherwise ripe claim in Federal court because a final determination had already been reached in a State court proceeding. That is, a strict adherence to the Williamson County prongs could prove tantamount to the nails in the coffin box of the property owner's ripe takings claim. Nevertheless, by removing the state exhaustion requirement from the ripeness landscape, this bill effectively solves all res judicata and collateral estoppel problems. Interestingly, claimants alleging violations of other fundamental rights do not encounter these same procedural barriers when attempting to bring meritorious actions in Federal court. In those situations, ripeness, abstention, and res judicata are often inapplicable. This places fifth amendment claimants in an inferior position to their first amendment counterparts. But, the Supreme Court has expressly stated that the fifth amendment is ``as much a part of the Bill of Rights as the first amendment or the fourth amendment. Look what the Court said in Dolan v. City of Tigard: We see no reason why the takings clause of the fifth amendment, as much a part of the Bill of Rights as the first amendment or fourth amendment, should be relegated to the status of a poor relation . . . The Court, I hope, means what it says. In any event, I certainly concur. The rights of the fifth amendment should not be inferior to the rights of the first amendment or to any other fundamental guarantee contained in the Bill of Rights. This bill seeks to address these procedural blockades and offer property owners more certainty as to the Federal adjudicatory process governing takings claims. More specifically, the bill accomplishes this by defining when a final agency decision takes place and prohibiting Federal judges from invoking the abstention doctrine to avoid cases that involve only fifth amendment takings claims. In other words, this bill does not impugn or prevail upon any State rights. It only is triggered when we have fifth amendment constitutional rights invoked. Additionally, S. 2271 maintains the traditional interpretations of the abstention doctrine which keep the federal courts free from being thrust into controversies surrounding state and local issues by limiting its scope only to actions involving federal claims. As the proposed language indicates, usage of this Act by a claimant is optional. That is, the bill allows a claimant the opportunity to bring a claim in Federal court if she so chooses, but does not mandate such an avenue of jurisdiction. S. 2271 simply allows every citizen her right to bring a Federal takings claim into Federal court to be decided on the merits. It is important to note that if a claimant brings a takings claim that is joined to other State claims, a Federal court would be able to abstain: for example, a takings claim accompanied by a State constitutional claim, a claim of ultra vires conduct, or abuse of discretion would not be able to reach the merits in Federal court without a State court first deciding the merits of the State claims. Let me refute the critics and assert that S. 2271 accomplishes its goals in a manner that will not crowd the Federal dockets. Under the provisions of this bill, a claimant is required to obtain as few as three and as many as five decisions by local entities before that claimant's claim will be ripe for review by a federal court. Thus, the claimant must spend adequate time pleading her case before the local authorities and must obtain the necessary denials from them; until she satisfies these prerequisites, her claim will be barred from the Federal courts. Some have argued that the second prong of Williamson County mandates as a matter of constitutional law that property owners exhaust State compensation remedies before seeking federal court redress. This conclusion is buttressed by their claim that a taking does not occur on a State or local level until the State or locality has had the opportunity to afford compensation to the property owner. I disagree with both these contentions. First, Williamson County was decided before the remedy for a Federal taking was clarified. It is, indeed, outdated. When Williamson County was decided in 1985, the Court viewed the remedy for takings to be invalidation of the offending statute or rule. In other words, compensation was not considered the remedy for a taking under the U.S. Constitution. That changed in 1987, with First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), where the Supreme Court finally held that the Federal remedy for a taking is compensation. Now that this Federal remedy has been clarified, there is no reason to compel a citizen to litigate State court remedies in State court first. Second, and consequently, the second prong of Williamson County is now merely prudential in nature. This conclusion is buttressed by the Supreme Court's most recent takings and ripeness decision, where the Court described Williamson County's requirements as ``two independent prudential hurdles * * *.'' Suitum v. Tahoe Regional Planning Agency, the 1997 case I cited before, makes that case, 117 S. Ct. 1659, 1666 (1997). In other words, the requirement of exhaustion of State or local compensation procedures is a court-created barrier which Congress may alter. Simply put, initial State court litigation is not compelled by the Constitution. Third, the Williamson County second prong is only dicta, and, therefore, not binding authority. The main issue in Williamson County concerned the first element of ripeness, that is, whether the land use agency rendered a ``final decision.'' The ensuing discussion on compensation ripeness was neither essential nor necessary to support the decision. Thus, it was mere dicta. Fourth, the text of the Takings Clause does not require that property owners must exhaust State or local compensation procedures. The drafters and ratifiers of the fifth and fourteenth amendments to the Federal Constitution did not intend such a result: The text of the takings clause states: ``[N]or shall private property be taken for public use, without just compensation.'' Those are words right out of our beloved constitution. Thus, the fifth amendment clearly creates a Federal remedy for a taking. There is no basis to believe that the drafters and ratifiers intended State court litigation as a prerequisite to vindicate that Federal remedy. State court litigation puts the cart before the horse: Compensation is simply a computation of the amount owed for a taking. It makes no sense to sue in State court first, until liability for the Federal taking has been determined. Fifth, preclusion doctrines, as mentioned above, bar any Federal takings suit in Federal court if a plaintiff must sue in State court first. A property owner in this circumstance would never get to Federal court to vindicate the property owner's rights. It is doubtful that this was the intent of the drafters and ratifiers who promulgated and adopted Federal rights amendments and established the Federal forums to protect them. Yet being barred from the Federal courthouse is exactly what happened in Dodd v. Hood River, in 1998, 136 F.3d 1219 (9th Cir. 1998). That is a ninth circuit court case. The minority views accompanying H.R. 1534, the bill voted out of the Judiciary Committee, completely misstates the Dodd case. Dodd stands for the reverse of what the minority views represent. The minority claims that, one, ``most federal appeals courts allow claimants to `reserve' federal constitutional claims so that the federal courts may address those claims once the state court litigation has ended.'' This is not true. This can be seen from what happened in the various Dodd cases. After being allowed to reserve their Federal takings claim in Dodd IV [(59 F. 3d at 862)], the Dodds were denied the right in Dodd V to raise it in Federal court under the ``issue preclusion'' doctrine of collateral estoppel. [See Dodd V, 136 F.3d at 1227 (9th Cir. 1998).] The same thing happened to a takings claimant in Wilkinson v. Pitkin County Bd. of County Comm'rs, a tenth circuit case in 1998, where the court concluded that ``the Williamson ripeness requirement is insufficient to preclude application of res judicata and collateral estoppel principles in this case.'' Moreover, in a candid footnote, the court acknowledged: We do note our concern that Williamson's ripeness requirement may, in actuality, almost always result in preclusion of federal claims, regardless of whether a reservation is permitted. It is difficult to reconcile the ripeness requirement of Williamson with the laws of res judicata and collateral estoppel. Contrary to the minority's misrepresentation of the law, Dodd and Wilkinson confirm that, without the referenced remedial legislation, citizens bringing fifth amendment takings claims in Federal court are in a Catch-22 situation. They must first go to state court, but when they do, they are barred from ever litigating their claim in Federal court. Meanwhile, municipal defendants in such cases are free to seek removal of the case from State to Federal court. This removal procedure was upheld recently by the Supreme Court in City of Chicago v. International College of Surgeons. I must observe that other constitutional rights hinge on State or local issues, but do not require initial State litigation. Many provisions in the Bill of Rights also hinge on the resolution of issues concerning State or local law. There are no similar ripeness barriers requiring citizens to go to State court first to address the constitutionality of Government actions that infringe upon the speech, religion, or privacy rights protected in the Constitution. Furthermore, the Supreme Court in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 437, n. 15 (1982), held that takings could occur regardless of whether the property has increased in value. In this case the Court found a taking where cable was laid pursuant to a New York statute, which undoubtedly increased the value of the building. The Supreme Court found a taking and remanded the compensation issue to the lower court. I believe that this holding is contrary to the position of the bill's critics that takings analysis require, as a matter of law, that compensation be determined before a governmental action can be considered an unconstitutional taking. Under Loretto, a court could find that there has been a taking--a significant interference with property rights--yet award no compensation. It is still considered an unconstitutional taking. Consequently, the compensation requirement of the Takings Clause is merely a remedy that may or may not be awarded in a state or federal court, depending on the fairness of the situation. Buttressing this conclusion is the recent Supreme Court decision in Phillips v. Washington Legal Foundation, No. 96-1578 (June 15, 1998). In Phillips, the Court held that interest accruing from interest bearing lawyers trust accounts, that is, Interest On Lawyers Trust Accounts, or IOLTAs, as they call it, that that is property within the meaning of the fifth amendment. Although the Court left open whether the adequacy of compensation must be determined before a constitutional taking is considered to occur, [Phillips slip op. at 7, n.4], it is interesting to note that as a practical matter the Court first determined whether there was a property interest and, thereafter, remanded the case to determine whether there was a taking, and if so, the amount of just compensation to be paid for such taking. The Court in effect applied a three-part test: (1) whether a property interest exists; (2) whether the property interest has been significantly interfered with; and (3) if a property interest has been taken, the determination of just compensation. The Committee believes that this approach belies the argument that a federal court cannot hear takings claims before a state determines compensation. Indeed, this was the position of the dissent, who argued that the issue of compensation is not separate and distinct from the issue of disposition and use of property. [Phillips, slip op. at 4 (Souter, J., dissenting).] Furthermore, in Eastern Enterprises v. Apfel, No. 97-42 (U.S. June 25, 1998), decided on the next to last day of the 1997-1998 Supreme Court term, the Court faced the issue of whether the Coal Industry Retiree Health Benefit Act--called the ``Coal Act''--which established a mechanism to fund health care for retirees, could be applied retroactively to a company that no longer mined coal and had withdrawn from the Coal Act funding scheme pursuant to terms of a prior negotiated agreement. Four Justices, Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas, held that the application of the Coal Act violated the Takings Clause of the fifth amendment. [Eastern Enterprises, slip op. at 1-37 (Plurality opinion of O'Connor, Rehnquist, Scalia, and Thomas, J.J.)]. One Justice, Justice Kennedy, held in concurring opinion that retroactive application of the Act violated the Due Process Clause. [Eastern Enterprises, slip op. at 1-7 (Kennedy, J., concurring and dissenting in part)]. In reaching its conclusion, the plurality grappled with the ripeness issue of whether a litigant, such as the petitioner in this case, is barred from seeking equitable relief in federal district courts. The Tucker Act confers exclusive jurisdiction on the Court of Federal Claims to hear claims for compensation under the Takings Clause of the fifth amendment, and it was argued, much like critics of this bill, that a claim for equitable or other relief under the Takings Clause is hypothetical until compensation is first determined by a court. The Supreme Court noted that the Court of Appeals, the various courts of appeals, were divided on the issue and that the Supreme Court's precedents were seemingly contradictory. [Eastern Enterprises, slip op. at 19 (plurality opinion of O'Connor, J.)]. For instance, the Supreme Court in First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314 (1987), observed that ``the fifth amendment does not prohibit the taking of private property, but instead places a condition [just compensation] on the exercise of that power.'' Yet in Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70 n. 15 (1978), the Supreme Court held that a district court may exercise jurisdiction over declaratory judgment actions pursuant to a Takings Clause claim, even when no attempt to seek compensatory relief has been made in the Court of Federal Claims. Significantly, the Eastern Enterprises plurality noted that the Supreme Court had granted equitable relief without discussing the applicability of the Tucker Act, and, thus, decided the issue sub silento that an unconstitutional taking could occur without a determination of compensation. [Eastern Enterprises, slip op. at 19-20 (plurality opinion of O'Connor, J.), citing Babbitt v. Youpee, 519 U.S. 234, 243-245 (1997); Concrete Pipe & Products of Cal. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 641-647 (1993); Hodel v. Irving, 481 U.S. 704, 716-718 (1987)]. Based on the foregoing, I believe that a federal court may decide takings issues before compensation is ascertained. Indeed, the Court of Appeals for the Second Circuit in In re Chateaugay Corp., 53 F. 3d 478, 492 (2d Cir. 1995), characterized the contrary language in First Evangelical Lutheran Church, mentioned above, as obiter dicta. Finally, I want to note that federal courts have more than adequate experience in the appraisal of value as the many takings and inverse condemnation claims heard by these courts demonstrate. Consequently, federal courts, as well as state courts, are appropriate forums to determine compensation. Indeed, this was the intent of the framers and ratifiers of the fifth and fourteenth Amendments. In conclusion, let me point out that James Madison, in his celebrated Essay on Property, wrote that the very purpose of government is to protect private property. Madison's own words in Essay on Property: Government is instituted to protect property of every sort . . . this being the end of government. That alone is a just government, which impartially secures to every man whatever is his own. Let me also point out the admonition of John Adams, who, in his Defense of the Constitutions of Government, cautions that: The moment the idea is admitted into a society that property is not as sacred as the laws of God, and there is not force of law and public justice to protect it, anarchy and tyranny commence. That is John Adams' Defense of the Constitutions of Government. Mr. President, let us heed the advice and warnings of the wise Founders of this Republic. It is the duty of Congress to assure that the constitutional rights of all Americans are protected. This is especially true when, as here, the courts fail to do their job of safeguarding constitutional rights. In such a situation, Congress must step to the plate. With passage of this bill, Congress will have hit a home run. The right to own and possess property will have been vindicated. Fairness to property owners will have been guaranteed by resolving the egregious delays and costs associated with the ripeness issue. Property owners will have been afforded fair access to the federal courts to vindicate their constitutional rights. Justice will no longer have been delayed nor denied. I urge my colleagues to support this worthwhile measure.

Mr. HATCH. Mr. President, how much time do I have?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. If the Senator will yield, I will clarify.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Madam President, I yield the floor and reserve the remainder of my time. Mr. LEAHY addressed the Chair.

Mr. HATCH. Will the Senator yield for 1 second? Mr. President, I ask unanimous consent that after the Senator's remarks, I reserve the remainder of my time.

Mr. HATCH. Mr. President, I yield 3 minutes to the distinguished Senator from Idaho.

Mr. HATCH. As a matter of personal privilege, since the Senator raises my mayor, if the Senator will yield for a question, is the Senator aware in S. 2271 we have solved all those problems? The original bill did not participate, in the eyes of some of the mayors, but S. 2271, is the Senator aware, affects only Federal claims being brought before Federal court; that State and local claims, claims based on State or local law, are not affected by S. 2271, which is fairly contrary to what the distinguished Senator has been saying here? The fact that the constitutional claims can arise from the actions of local governments does not make them any less a Federal claim, any more than a violation of first amendment rights are Federal claims, whether it is a Federal or local official doing the violating. Is the Senator aware of that?

Mr. HATCH. I am a little bit agitated right now, and I want to finish some of these thoughts.

Mr. HATCH. I will just say that the distinguished Senator very seldom does. Another amendment to the bill requires a party seeking redress for a taking of real property to give any potential defendant written notice 60 days prior to a commencement of action in district court. This was added to address the localities' concerns that they will have insufficient time to negotiate with parties seeking redress before a Federal action was filed. This delay, I might add, acts as an inducement to seek compromise. In addition, we added a nuisance provision to the purpose section of the bill that confirms State power to prevent land uses that are nuisances. I suspect that a house of prostitution would be a nuisance alongside a church or some other place. Perhaps there are many in this body that might agree with me that it is a nuisance, period. Under existing law, States have authority to abate nuisances and zone for commercial or residential uses. The Supreme Court, in Lucas v. South Carolina Coastal Council, held that such State actions require no compensation to affected landowners. This change in the bill thus makes clear that State prerogatives are not altered. The bill, in any event, changes no substantive law and merely allows property owners fair access to the Federal courts after having gone through a variety of procedures in the State courts. And reasonable procedures at that, but not after 9\1/2\ years of being jerked around by some of the State courts, and Federal courts, by the way, because the Federal courts have been jerking them around, too, refusing to hear some of these cases on the doctrine of rightness, and the other doctrines that I have mentioned. All this belies the bizarre and false allegations, such as the one contained in the Minority Views of the H.R. 1534 Committee Report, that if the bill passes localities may not prohibit gas stations in residential areas unless compensation is paid. Give me a break. Finally, to narrow the scope of the ripeness provision, we limited the term ``property owner'' to include only ``owners of real property.'' This change greatly narrows the procedural effects of this bill because the provisions of the bill that expedite access to the federal courts now will only encompass real property and, thus, will not apply to suits involving personal or intellectual property. So we have solved that problem, which was a legitimate question, although really we ought to be protecting all property since this is a fundamental right of the fifth amendment of the Constitution of the United States of America, one that is ignored most of the time in our country. the states rights issue: why s. 2271 does not impact states' rights S. 2271 affects only federal claims being brought before federal court. State and local claims, claims based on state or local law, are not affected by S. 2271. The fact that constitutional claims can arise from the actions of local governments does not make them any less a federal claim, any more than a violation of First Amendment rights are federal claims whether it is a federal or local official doing the violating. The Supreme Court has long held that the Eleventh Amendment makes state governments acting under state law immune from suits filed under U.S.C. section 1983. In other words, state governments are already immune from suits filed on constitutional grounds by established Supreme court precedent, and S. 2271 does nothing to change that. Local governments, however, are not immune from lawsuits claiming that constitutional rights have been violated. Again, it is the Supreme Court, not S. 2271, that has made local agencies subject to federal claims by individuals alleging their rights have been violated. All S. 2271 does is ensure that when a suit is filed in federal court, the case can be heard on the merits, rather than spending time and money to determine whether the case is ``ripe.'' State and local agencies will have all the authority and power they currently have to make land use decisions--for zoning, environment, etc. S. 2271 does not change any substantive law. But, if local agencies violate Fifth Amendment rights when making land use decisions, S. 2271 helps a property owner get a more expedient hearing on the merits without the 10-year ripeness battle, which is one of the most futile experiences anyone can go through. The property owner, under S. 2271, will still have to make at least one meaningful appeal to the agency in question before bringing a lawsuit. That means agencies have at least two cracks at making a balanced decision that protects the environment and public health while protecting the rights of private property owners. In the real world, property owners will likely try repeatedly, because the chances of getting a favorable ruling in court on the merits is extremely slim-- and S. 2271 offers no help there. The reason the bill refers to a property owner being rejected on ``one meaningful application'' and ``one appeal or waiver'' before a decision is considered final is to create some objective criteria so both the property owner and the land-use agency in question know when ``enough is enough.'' The language actually codifies a body of federal cases requiring that a property owner make ``one meaningful application'' to the relevant land-use decision making body to ripen a Constitutional claim. (e.g. Eastern Minerals Int'l Inc. versus United States; Kawaoka versus City of Arroyo Grande; Unity Ventures versus Lake County.) The point is that property owners should not be forced to negotiate away portions of his or her constitutional rights in a series of re-applications and appeals as a condition of gaining access to federal court with a Constitutional claim. The fact that different cities or states may have varying procedures or multiple steps for making a final determination on land use is not at issue in this bill. The bill does not define what a ``meaningful application'' is, because it recognizes that different states and cities handle land use applications differently--the bill tries to be respectful of those differences and allow state and local officials determine that question. If there is a threshold question of state or local law that is essential to the merits of the federal claim, and it is patently unclear or confusing, the federal court can, under S. 2271, have that question certified in state court under whatever procedures the state has in effect for certifying questions for a federal court. In other words, if a federal claim involves an important issue of state law, the state courts will have first crack at it under S. 2271. The only difference is that the property owner will not get turned away from federal court and forced to file the whole claim again in state court, and go through a 10-year delay process that literally is subverting the very constitutional provisions that we are sworn to uphold. This bill is pretty well thought out, and, frankly, I ask unanimous consent that a whole raft of letters from various people who are in support of this bill ranging from these various groups and so forth be printed in the Record.

Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished Senator from South Carolina.

Mr. HATCH. Mr. President, I move to proceed to the consideration of S. 2271, the Property Rights Implementation Act.

Mr. HATCH. Mr. President, how much time does the Senator from Utah have?

Mr. HATCH. Let me just say this, that we have held hearings through the years on similar bills, and we have held hearings on the underlying bill. We made four changes, which I outlined in my last remarks. So the hearings were held and the changes were made to accommodate some of the concerns of those who have been critical of this bill. So this is not without hearings, and it is not without an understanding. I yield 10 minutes to the distinguished Senator from Texas.

Mr. HATCH

Mr. HATCH. Mr. President, I have introduced the National Criminal History Access and Child Protection Act of 1998. I am pleased to have been joined by the Ranking Member of the Judiciary Committee, Senator Leahy, as well as by Senator DeWine and the distinguished Minority Leader, Senator Daschle, in introducing this legislation, which also has the support of the Administration. This important legislation addresses a critical issue--the access to criminal history records for legitimate purposes other than use within the criminal justice system. These records are frequently used today for a wide variety of important purposes, such as employment background checks for child care workers, health care workers, elder care workers, teachers, school bus drivers, security guards, and bar applicants. Few disagree with the use of criminal history records to ensure that those in important positions of trust with our children, elderly, and persons with disabilities do not have criminal backgrounds making such trust inappropriate or even dangerous. Yet, currently, policies and procedures on disseminating these records vary widely from state to state. This legislation addresses this issue, by enacting what has come to be known as the Triple I (III) Compact. This proposed interstate and federal-state compact is supported by the Administration, the FBI, the Criminal Justice Information Advisory Policy Board, and all state criminal history repositories. It would establish ``rules of the road'' for the interstate sharing of criminal history records for non-criminal history purposes, such as background checks for employees who work with children or who are in otherwise sensitive jobs. The compact provides for state-to-state and federal-to-state sharing of records, through the Interstate Identification Index (III) and the National Fingerprint File (NFF). Under the compact, requests for criminal history checks for non- criminal justice purposes would be made between state records repositories and between the state repositories and the FBI, which maintains the III and NFF systems. Interstate dissemination policy would be governed by the policy of the requesting state, but intrastate dissemination and use of records would still be governed by the law of the state which owns the record. The primacy of use of records for criminal justice purposes would be maintained, as would direct access to records already permitted under current law. Additionally, record checks would have to be fingerprint supported to ensure accuracy, and the privacy of records would be protected. The compact would be administered and policed by a council comprised of state and federal officials. This legislation also includes improvements to the National Child Protection Act, which Congress enacted in 1993 to encourage the use of criminal history records to screen volunteers who work with our children, elderly, and persons with disabilities. This provision amends the NCPA to permit child care, elder care, and volunteer organizations, known as ``qualified entities,'' to request background checks through state agencies in the absence of state laws implementing the NCPA. The 1993 NCPA and its 1994 amendments extending its coverage to elder care and disabled care workers conditioned part of state's Byrne grant funding on the establishment of procedures for records checks for child care and elder care workers and volunteers, but many states have not done so. Qualified entities are not permitted to request a background check from states absent state establishment of procedures. This provision is a modest change to current law, and permits qualified entities to request the background check, but does not override any state laws regarding use or dissemination of records. The provision is based on H.R. 2488, and is supported by volunteer groups, including the Boy Scouts and the Boys and Girls Clubs. This provision recently passed the House of Representatives as an amendment to other legislation. Mr. President, this legislation is a modest but important step in protecting the most vulnerable in our society from those who would abuse unique access to prey on them. I appreciate the support of my cosponsors for this legislation, and urge its approval by the Senate.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.