E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, FIRST SESSION

Vol. 151 WASHINGTON, TUESDAY, FEBRUARY 1, 2005 No. 8 Senate The Senate met at 9:45 a.m. and was I pledge allegiance to the Flag of the tunity to come to the floor and express called to order by the Honorable LISA United States of America and to the Repub- themselves and debate appropriately. MURKOWSKI, a Senator from the State lic for which it stands, one nation under God, Over the course of the morning, we will of Alaska. indivisible, with liberty and justice for all. hopefully have more certainty in terms f of when we will complete debate. PRAYER APPOINTMENT OF ACTING I do want to encourage Senators in The PRESIDING OFFICER. Today’s PRESIDENT PRO TEMPORE the meantime to contact the chairman prayer will be offered by former Senate or the ranking member in order to fa- Chaplain Dr. Lloyd Ogilvie from Los The PRESIDING OFFICER. The cilitate an orderly schedule for speak- Angeles, CA. clerk will please read a communication ers. I welcome the debate on Mr. Almighty God, Sovereign of this Na- to the Senate from the President pro Gonzales and look forward to the Sen- tion and Lord of our lives, thank You tempore (Mr. STEVENS). ate acting on this important nomina- for the gifts of life, intellect, good The legislative clerk read the fol- tion. memories, and daring visions. We don’t lowing letter: Once again, I mentioned yesterday ask for challenges equal to our talents U.S. SENATE, but I want to remind our colleagues and training, education and experience; PRESIDENT PRO TEMPORE, today, we have a State of the Union rather, we ask for opportunities equal Washington, DC, February 1, 2005. To the Senate: Message tomorrow, a joint meeting of to Your power and vision. Forgive us Congress at 9 p.m. We have asked Sen- when we pare life down to what we Under the provisions of rule I, paragraph 3, of the Standing Rules of the Senate, I hereby ators to gather in the Chamber begin- could do on our own without Your appoint the Honorable LISA MURKOWSKI, a ning at 8:30 to proceed at 8:40 to the power. Make us adventuresome, un- Senator from the State of Alaska, to perform Hall of the House of Representatives daunted leaders who seek to know the duties of the Chair. tomorrow night. what You want done and attempt it be- TED STEVENS, I have a statement to make, but I cause You will provide exactly what is President pro tempore. would like to turn to the minority needed to accomplish it. We thank You Ms. MURKOWSKI thereupon assumed leader. that tough times are nothing more the Chair as Acting President pro tem- f than possibilities wrapped in negative pore. attitudes. RECOGNITION OF THE MINORITY f Lord of the unfolding drama of his- LEADER tory, we praise You for the triumph of RECOGNITION OF THE MAJORITY The ACTING PRESIDENT pro tem- the first free election in half a century LEADER pore. The minority leader is recog- in Iraq. We honor the courage of the The ACTING PRESIDENT pro tem- nized. millions of Iraqis who defied danger pore. The majority leader is recog- and reprisal to exercise their new lib- f nized. erty from tyranny. WELCOME TO FORMER CHAPLAIN We know that freedom is not free; it f OGILVIE is the legacy of liberators of our Armed SCHEDULE Forces, some of whom paid the su- Mr. REID. Madam President, as the preme price to assure freedom for the Mr. FRIST. Madam President, this distinguished majority leader and I people of Iraq. Help us to cherish our morning we have a period for morning stood in the aisle, as soon as Reverend freedoms in America and never take for business until 10:45. At 10:45, we will Ogilvie finished his prayer, the Repub- granted the privileges we enjoy. proceed to executive session for the lican leader leaned over to me and said, Now bless the women and men of this consideration of the nomination of how about that voice, or words to that Senate. Help them experience the pal- Alberto Gonzales to be Attorney Gen- effect. Those were the exact memories pable presence of Your Spirit and re- eral. Chairman SPECTER will begin that I have of Dr. Ogilvie. I spent 5 years lis- ceive the incredible resilience You pro- debate. On this side, we are prepared to tening to his prayers every morning. vide. You are our Lord and Saviour. allow for a reasonable time for debate As a result of that, I felt it was a good Amen. and then set a time certain for the way to start the day. It brought back f vote. I hope that at an early hour so many memories of our time to- today we will be able to lock in an gether. PLEDGE OF ALLEGIANCE agreement so that Members will be It seems that one of the require- The Honorable LISA MURKOWSKI led able to prepare accordingly. We do ments, at least with the last two chap- the Pledge of Allegiance as follows: want all Senators to have the oppor- lains we have had, is the voice. Dr.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S682 CONGRESSIONAL RECORD — SENATE February 1, 2005 Black and Dr. Ogilvie have two of the wonderful currency of peace in its man- He didn’t stop there. He was accepted finest voices I have ever heard and each ifestation. at Harvard Law School, and with his time I hear them say something I be- I will also be introducing legislation Harvard law degree in hand he returned come so envious that I have my voice shortly addressing this whole challenge to Texas to join one of Houston’s most and they have theirs. of water and the global issues sur- respected law firms, and he was their The ACTING PRESIDENT pro tem- rounding water, the fact that 1.2 billion first minority partner. At the firm, pore. The majority leader. people in the world today do not have Judge Gonzales committed himself to Mr. FRIST. Madam President, the a clean glass of water. Unfortunately, the education of minority kids. He Democratic leader is exactly right. these waterborne illnesses are the No. 1 even helped create minority scholar- That was our first comment. What is killer of children in the world today be- ships which to this day are awarded to even more embarrassing is when you cause 1.2 billion people do not have ac- those in need. are side by side with either Lloyd cess to that water. It didn’t take long for people to rec- Ogilvie or Chaplain Black and you have We will be introducing legislation to ognize the tremendous talents of Judge to sing, because their voices are so address the global water supply, qual- Gonzales. He answered the call to pub- powerful, which does mean so much to ity and quantity, that will address lic service. Newly elected Governor us in terms of expressing feelings, emo- some of the basic issues, humanitarian George Bush tapped Alberto Gonzales tion, and values. When it is applied to in part but public health in large part to join his administration as general the beautiful voice of singing, it is es- as well. We can do a lot through our counsel. He went on to become Texas’s pecially embarrassing to me as they foreign assistance, where we have mis- 100th secretary of state and then later are next to me because the contrast is directed our foreign assistance or we a justice of the Texas Supreme Court. so dramatic. have not even focused on water, which It is a great pleasure for all of us to I believe it deserves. I will also men- Every step of the way he has worked welcome Lloyd Ogilvie back with us tion the importance of having a global hard. He has won the respect of his this morning to open today with a health corps that can respond to dis- peers. His integrity and talent have al- prayer that struck at what we have aster in a way that we saw so many lowed him to receive numerous awards. seen the last couple of days, but also wonderful volunteers coming from Those sterling qualities have also gar- the real responsibility and obligations around the world to respond to this nered the trust and loyalty of the we have as Members of the Senate. We tsunami. In the aftermath of a terrible President of the United States. As have been blessed with chaplains such tragedy such as this, medicine heals counsel to the President for the last 4 as Chaplain Black and Chaplain Ogilvie not only the body but also the hearts years, he has been one of the Presi- to serve us and the American people so and minds. As the tsunami tragedy un- dent’s closest advisers. President Bush selflessly and unselfishly during our derscores so powerfully, medicine can credits Judge Gonzales for his candor tenure. act as a currency of peace. and for his ability to remain steady in times of crisis—qualities that are es- f f sential in an Attorney General. As we TSUNAMI: LONG-TERM SOLUTIONS NOMINATION OF ALBERTO all know, it has been noted that when Mr. FRIST. Madam President, I will GONZALES President John F. Kennedy nominated comment on Judge Alberto Gonzales Mr. FRIST. Madam President, today his brother Robert to lead the Justice and his confirmation. Over the period the debate and discussion throughout Department, the relationship worked for morning business, others will be will be on the nomination of Judge so well because the President could coming by and speaking on the con- Alberto Gonzales to be Attorney Gen- count on his unflinching candor in firmation, although we do not offi- eral, and I am proud to be the first of times of crisis. cially begin until 10:45. Before doing many today to speak on this nomina- The biography of Judge Gonzales that, I want to mention that tomorrow tion and the strong support I have for speaks for itself. I do think it is impor- I will have the opportunity to testify this nominee. Judge Gonzales is a man tant to, up front, address some of the before the Senate Commerce Com- of keen intellect, a man of high stand- criticisms that have been leveled mittee. I was invited by Chairman STE- ing and achievement, and unwavering against him. More than a few facts VENS to speak on the long-term public respect for the law. As our first His- have been lost in the debate. These health needs of the victims following panic-American Attorney General, issues will be talked about, I know, the December 26 tsunami. Judge Gonzales will stand as an inspi- over the course of the morning. Early in January, Senator Mary ration to all Americans. He captures it First, President Bush does not have Landrieu and I had the opportunity in his life story. He is an outstanding nor has his administration ever had an fairly early on in the recovery period choice to become our Nation’s top law official Government policy condoning to go to Sri Lanka where the observa- enforcement officer. or authorizing torture or prisoner tions were stark in many ways but in He has lived the American dream. We abuse. Let me restate for the record many ways inspiring, as we flew over talk so much about the American what the policy has been and continues the coastline in Sri Lanka and wit- dream. We point to people, parts of to be from a Presidential memo dated nessed the unending devastation. We whose lives manifest the American February 7, 2002: also saw on the ground the great out- dream. He lived it growing up in the pouring of support, caring, and compas- town of Humble, TX, in a two-bedroom Our values as a Nation, values that we share with many nations in the world, call sion, the best of humanity internation- house shared by seven siblings and his for us to treat detainees humanely, including ally but very specifically by Americans mother and father. His parents, Pablo those who are not legally entitled to such on the ground. and Maria, were Mexican-American im- treatment. . . . As a matter of policy, the We all know from the tsunami we migrants. They have little formal edu- United States Armed Forces shall continue have the 5 million people who lost their cation. His dad completed second grade to treat detainees humanely and, to the ex- homes and 150,000 people who lost their and that was it. tent appropriate and consistent with mili- lives. The scars will be there for a long Inspired by his parents—as he tells tary necessity, in a manner consistent with period of time. Senator STEVENS will it, their hard work—and spurred on by the principles of the Geneva Conventions have a hearing tomorrow to look at their encouragement, Judge Gonzales [governing the laws of war.] some appropriate initial responses in set his aspirations high and he was on Second, neither Judge Gonzales nor terms of prevention of that sort of ca- the way. He has fulfilled them at every the President have condoned nor advo- tastrophe in the future. Tomorrow, I level. He played football and baseball cated nor authorized the torture of will be talking about a broad picture in high school. On graduation, he prisoners. In fact, on numerous occa- looking at public health issues such as joined the Air Force, from there en- sions both have explicitly condemned cleaning of water and sanitation, and rolled in the Air Force Academy, and torture as an abhorrent interrogation the role curing disease and public later transferred to Rice University. He technique. health can play as an expression of became the first person in his family to Third, Judge Gonzales was not the compassion and caring but also as a go to college. author but he was the recipient of

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S683 memos focusing on methods of interro- hour, 60 minutes, that had been allo- dwindling. By later this year, when the gation of captured terrorists. The re- cated for morning business still be al- Army is scheduled to begin its fourth rota- search memos that have been the focus located, equally divided between the tion of troops since the invasion in March of so much attention and criticism Republican and Democratic sides. 2003, all 15 of the National Guard’s most readily deployable brigades will have been were written, not by the judge, but by The ACTING PRESIDENT pro tem- mobilized. the Office of Legal Counsel of the De- pore. Is there objection? Although other Guard troops remain and partment of Justice to Judge Gonzales Mr. FRIST. Just reserving the right could be tapped for Iraq duty, they belong to as White House counsel. Those memos to object, I don’t believe we will be units that historically have not received the explored the legal interpretation of using all our time in morning business. same priority in equipping and training as Federal law. They did not set adminis- I would like to get to Judge Gonzales the brigades chosen to go in the rotations so tration policy. Indeed, the Department formally—we said at 10:45, at which far. ‘‘It doesn’t mean that the cupboard is of Justice has since categorically with- time the chairman and ranking mem- bare,’’ Lovelace said. ‘‘It just becomes a drawn this legal analysis that has been ber are going to come. I think we will challenge then for the National Guard.’’ interpreted by some as authorizing tor- be yielding back some of our morning As the Army reaches farther down in the ture of terrorist detainees, stating un- business time. If we can still shoot for reserve force, Lovelace said, the amount of equivocally: 10:45, I think that will give your side an ‘‘pre-mobilization’’ time necessary to get the Torture is abhorrent both to American law adequate 30 minutes in morning busi- troops ready to send to Iraq is likely to in- and to international norms. ness. crease. Mr. DURBIN. I don’t want to pre- ‘‘We’re not going to send anybody into Unfortunately, these facts have not combat who is not trained and ready’’ the gotten in the way of a barrage of at- sume, but if we could have 30 minutes three-star general said. But he noted that al- tacks on Judge Gonzales. I am dis- as originally allocated, that would be ready in each rotation, the amount of pre- appointed but not discouraged. I am consistent with my request. mobilization time required has increased. confident Judge Gonzales will be con- Mr. FRIST. Madam President, we had To continue to be able to draw on the bet- firmed with bipartisan support. I am not originally said 30 minutes either ter trained reservists, Army officials have confident that as Attorney General, side, but if you need 30 minutes this said they are considering petitioning Rums- morning in morning business, that will feld to extend the 24-month limit on the Judge Gonzales will continue to build total time a reservist could be caned to ac- on the successes of the last 4 years that be fine. We would like to start at 10:45, tive duty. if possible, if that will give you ade- we have seen in reducing crime and Madam President, I ask that the full quate time. fighting corporate fraud and upholding text of the story be printed in the our civil rights laws. Mr. DURBIN. If I could revise the re- quest that the first 30 minutes of morn- RECORD. The judge has worked hard over the There being no objection, the mate- ing business be allocated to the Demo- past 4 years to help America defend rial was ordered to be printed in the herself from terrorist attack while re- cratic side and the remaining time RECORD, as follows: specting our constitutional principles. until 10:45 be allocated to the Repub- [From the Washington Post, Jan. 25, 2005] In these uncertain times, we are fortu- lican side? ARMY PLANS TO KEEP IRAQ TROOP LEVEL nate to have a man with such high re- The ACTING PRESIDENT pro tem- pore. Without objection, it is so or- THROUGH ’06—YEAR-LONG ACTIVE-DUTY gard for the law serving our country STINTS LIKELY TO CONTINUE dered. and protecting our interests. (By Bradley Graham) In closing, former Clinton Cabinet Mr. DURBIN. Thank you, Madam President. The U.S. Army expects to keep its troop member Henry Cisneros just this strength in Iraq at the current level of about month praised Judge Gonzales as ‘‘bet- The ACTING PRESIDENT pro tem- 120,000 for at least two more years, according ter qualified than many recent Attor- pore. The Senator from Washington is to the Army’s top operations officer. neys General,’’ and one who can rely on recognized. While allowing for the possibility that the memories of humble beginnings, using f levels could decrease or increase depending his words, ‘‘to understand the realities on security conditions and other factors, Lt. GUARD AND RESERVE Gen. James J. Lovelace Jr. told reporters many Americans still confront in their ENHANCEMENT BENEFITS ACT lives.’’ yesterday that the assumption of little change through 2006 represents ‘‘the most Mr. Cisneros’s sentiments are widely Mrs. MURRAY. Madam President, this past weekend we witnessed a very probable case.’’ shared. Judge Gonzales is highly quali- Recent disclosures that the Pentagon plans fied to be America’s next Attorney important step forward in Iraq, as citi- to beef up training of Iraqi security forces General. He will make America safer, zens around the country turned out to and press them into action more quickly has more secure. He will lead the pursuit of vote for a new National Assembly. fueled speculation that the Bush administra- justice. I urge my colleagues to offer Many Iraqis appear to have embraced tion could be preparing to reduce the number their full support to the first Hispanic- the election and I, as so many others, of U.S. troops significantly this year. As American Attorney General, Alberto was encouraged to see millions of them more Iraqi troops join the fight, the thinking goes, U.S. troops could begin to withdraw. Gonzales, the man from Humble. exercise their right to vote. But this past weekend’s vote also really pushes But Lovelace’s remarks indicated that the I yield the floor. Army is not yet counting on any such reduc- f to the forefront an important question tion. Indeed, the general said, the Army ex- back here, right here at home, about pects to continue rotating active-duty units RESERVATION OF LEADER TIME what we are doing to take care of the in and out of Iraq in year-long deployments The ACTING PRESIDENT pro tem- thousands of American soldiers who and is looking for ways to dip even deeper pore. Under the previous order, the are serving us so honorably in this still into reserve forces—even as leaders ofthe re- leadership time is reserved. very dangerous country. serves have warned that the Pentagon could Just before the elections, several be running out of such units. f ‘‘We’re making the assumption that the news outlets reported that the Army MORNING BUSINESS level of effort is going to continue,’’ had decided to keep our troops at their Lovelace said. The ACTING PRESIDENT pro tem- current level in Iraq for at least an- In a related development, Senate and pore. Under the previous order, there other 2 years. I have one of those sto- House aides said yesterday that the White will be a period for the transaction of ries here from the Tuesday, January 25, House will announce today plans to request morning business until 10:45 a.m., with edition of the Washington Post. It is an additional $80 billion to finance the wars the first half of the time under the con- headlined, ‘‘Army plans to keep Iraq in Iraq and Afghanistan. That would come on trol of the Democratic leader or his troop level through ’06.’’ top of $25 billion already appropriated for the fiscal year that began Oct. 1. White House designee and the second half of the I want to read a portion of that time under the control of the majority budget spokesman Chad Kolton declined to story. It says: comment. leader or his designee. With the Pentagon having relied heavily White House budget director Joshua B. The Senator from Illinois. on reservists to fill out deployments to Iraq, Bolten is to describe the package to law- Mr. DURBIN. Madam President, I ask military officers have warned recently that makers today, but the budget request will unanimous consent that the entire 1 the pool of available part-time soldiers is come later, the aides said. Administration

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S684 CONGRESSIONAL RECORD — SENATE February 1, 2005 officials have said privately for several ‘‘We’re not going to send anybody into soon be deployed to Iraq as part of the weeks that they will seek the additional combat who is not trained and ready,’’ the Yakima-based Bravo Company 4th funding, the result of continuing high costs three-star general said. But he noted that al- Tank Battalion. That is why this legis- incurred battling an unexpectedly strong in- ready in each rotation, the amount of pre- lation is so important at this time. surgency in Iraq. mobilization time required has increased. Lovelace, who assumed his post of deputy To continue to be able to draw on the bet- As many other Members, I have sat chief of staff for operations in October, spoke ter trained reservists, Army officials have and talked to our reservists as they to a small group of Pentagon reporters in said they are considering petitioning Rums- have been called up, and I have talked what had been billed as an informal ‘‘meet feld to extend the 24-month limit on the with their families who have been left and greet’’ session. The conversation quickly total time a reservist could be called to ac- behind. It is critical that we provide focused on the Army’s planning for Iraq. tive duty. the support and services they need so The number of U.S. Army and other forces Mrs. MURRAY. Madam President, they can do this important job that in Iraq rose to 150,000 last month in what the effect of that policy is very clear. this country has asked them to do. Pentagon officials described as an effort to It means longer deployments, more bolster security ahead of Iraqi elections this My legislation would begin by ex- weekend. time away from home, and a further tending the current Family and Med- Lovelace made it clear that the Army’s as- strain on our entire military. ical Leave Act protections to the sumption about future U.S. force levels was It is no secret that some of our sol- spouses of guardsmen and reservists not meant to prejudge likely trends in either diers are hit especially hard by this called to extended active duty. This is Iraq’s security situation or development of news. I am talking, of course, about really important. The families who are its security services. He said the planning is our Guard and Reserve soldiers who left behind are struggling as single par- intended to ensure that enough units would have already faced extended deploy- ents to try to raise their family. They be ready if needed and to give U.S. troops a ments and long stretches away from basis on which to organize their own lives. should not have to worry about losing ‘‘It’s really about us providing the predict- their jobs, away from their homes, their jobs and their income when their ability to our own soldiers,’’ he said. ‘‘It has away from their families. We honor all loved one is sent overseas. So the first nothing to do with the Iraqi army; it has ev- of our troops serving overseas, but I am part of our bill simply extends the erything to do with our own institutional very concerned that these Guard and Family and Medical Leave Act protec- agility.’’ Reserve soldiers are not receiving some tions so these spouses who are left be- Asked about the Army’s assumption, Law- basic services and help that they have hind can take care of the issues they rence T. Di Rita, the Pentagon’s main earned—basic services and help they spokesman, said he was ‘‘not surprised’’ to need to take care of as their spouse is hear that the Army has chosen such a num- most certainly deserve. called overseas. ber, noting the need for service leaders to do Last week I reintroduced legislation Second, it provides childcare assist- such planning. ‘‘But it’s not going to be the to increase services and benefits to ance grants to parents or guardians of Army’s determination,’’ he said. ‘‘Ulti- members of the National Guard and dependents of guardsmen and Reserv- mately, the determination will be made by Reserves when they are called to active ists called to active duty. This is really the commanders’’ in the field. duty. I offered this Guard and Reserve important. Most of these Guard and Defense Secretary Donald H. Rumsfeld’s Enhancement Benefits Act last year to Reserve members are not on a base, so belief, Di Rita added, ‘‘is that we will con- expand health care, education, finan- tinue to see Iraqi security forces grow in ca- they don’t have access to childcare fa- pability. We will continue to see the need for cial benefits, and family assistance to cilities that Regular Army and other the foreseeable period ahead to have a sig- help ease the burden on our Guard people have on the base. They are out nificant commitment of U.S. assistance as members and their families. in our communities, across my State that capability develops. But there isn’t any- We made some progress in the Senate and across this country. body who has made any determination about last year, but those important provi- So child care is especially important timing or numbers.’’ sions were never signed into law. Now, to them when their spouses are sent Rumsfeld and other senior officials are re- in this new Congress, we have another overseas and they are left with how to viewing recommendations from Army Gen. opportunity to provide for our Guard Gary Luck about measures to accelerate the deal with child care—an issue that is training and boost the performance of the men and women, our reservists, and all always critical to families. Iraqi security forces. Luck, who has returned their families. This coincides with the It becomes extremely critical when to Washington after visiting Iraq last week, introduction of S. 11, the first Demo- you lose half of your family, when they has endorsed plans by field commanders to cratic bill for this Congress. It is the go to a place that can’t help with child increase the number of trainers substan- first Democratic bill of this Congress care. Childcare assistance grants are tially. But this increase is to come by shift- to help increase protections for our an important part of our package. ing the missions of U.S. troops already as- troops and Reserve members. My bill also expands the GI bill for signed to Iraq rather than by deploying more Thousands of citizen soldiers from forces, officials said. members of the Guard and Reserves ‘‘I don’t think anyone has a notion that across my home State of Washington who are called to active duty for 12 we’re talking about forces in addition to have been called to active duty over consecutive months or 24 months out what’s already out there,’’ Di Rita said. ‘‘It’s the past 2 years. These very brave men of a 60-month period. a question of how to use those forces in a dif- and women and their families deserve This is something that is really im- ferent way.’’ the same support that other military portant. When we send these men and With the Pentagon having relied heavily units receive when they sacrifice to women overseas to serve, they should on reservists to fill out deployments to Iraq, serve our country. My bill tells Guard have access to the GI bill when they re- military officers have warned recently that the pool of available part-time soldiers is and Reserve members across America turn so they can enhance their own dwindling. By later this year, when the that we are committed to providing lives and get a job and be productive Army is scheduled to begin its fourth rota- them and their families with the members of our society. tion of troops since the invasion in March health, financial, and social support Next, our bill provides relief from in- 2003, all 15 of the National Guard’s most services necessary to get through this terest and defers payments of unsub- readily deployable brigades will have been difficult time. sidized student loans. mobilized. According to the Pentagon, 239,000 I met with Reserve members before Although other Guard troops remain and National Guard members have been they left. Many of them were students could be tapped for Iraq duty, they belong to units that historically have not received the called to active duty. Currently, 192,500 or were just finishing college, and they same priority in equipping and training as Guard and Reserve members are serv- were extremely worried about how the brigades chosen to go in the rotations so ing on active duty as part of Operation they were going to pay their student far. Enduring Freedom and Operation Iraqi loans while they were deployed, or ‘‘It doesn’t mean that the cupboard is Freedom. Thousands of Washington when they returned before they would bare,’’ Lovelace said. ‘‘It just becomes a State Guard members have been acti- be able to get back into the job market challenge then for the National Guard.’’ vated over the past 2 years. This is the and have a steady income. We put spe- As the Army reaches farther down in the reserve force, Lovelace said, the amount of largest activation since World War II. cial help in our bill for these men and ‘‘pre-mobilization’’ time necessary to get the Hundreds of Washington State re- women who serve us by providing relief troops ready to send to Iraq is likely to in- servists have also been activated, and from interest and defer payments of crease. 150 local Marine Corps reservists will unsubsidized student loans so they can

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S685 get their lives back together when they care challenges? How do we get in service to his country today in com- return before they start to pay back through this? bat, that soldier’s family is entitled their obligation. I think it is important that this year under the law to $12,000 in death annu- Next, our bill requires any college re- we enact into legislation assurance for ity benefits—tax-free death benefits. ceiving Federal funds to offer students the family members of those who serve Twelve thousand dollars is hardly returning from active-duty service re- overseas that their family left behind enough to give to a spouse and her chil- admission without penalty or addi- will have access to TRICARE and dren when a soldier dies in combat. We tional fees. health care. have proposed that be increased at You can imagine, if you are in col- Tours of duty are being extended and least to $100,000. I support a proposal lege attending classes and you are new units are being deployed. I believe that it also be increased by $25,000 for called up to serve your country as a we have an obligation to ease the bur- each dependent; that life insurance, if member of the Guard and Reserve, you den for these Guard and Reserve fami- you can acknowledge that, is virtually are concerned that when you return lies. the same thing—that this death benefit you will not be able to get back into Supporting our troops means more is going to be adequate to help that that school and finish the college de- than just passing multibillion-dollar family through some extraordinarily gree that you started. Our bill provides supplemental appropriations bills challenging financial circumstances. assurance to these students who have whenever the President asks. Sup- The bill that the Senate Democrats been called up that they will be re- porting our troops must also mean that have proposed, S. 11, would also include admitted into any college that receives we look after the soldier and his fam- systemic improvements to the Penta- Federal funds, so they will know when ily’s well-being back at home. It means gon’s ability to manufacture and dis- they return that they can continue ensuring they get quality education, it tribute the best equipment to our their lives. means ensuring they get good health troops, including $7 billion for the Next, we reduce the age for members care, and it means access to a job, and Army and Marine Corps to replace of the Guard and Reserve to receive re- childcare for their families. equipment destroyed in Iraq. This provision will ensure that we tirement pay. This is a critical issue I have spoken many times on this pay death gratuities to fewer families for many of our Guard and Reserve floor and in every corner of my State in the future. Keeping our troops safe families who face extreme hardship as about the need to take care of our troops. Oftentimes, that means is the best thing to do to bring those their family member serves overseas. supplementing our floundering vet- soldiers home with their mission ac- We want to make sure they can receive erans care system. I talked about it on complished, and being attentive to the retirement pay at an age that benefits the floor extensively last week. issue raised by the Tennessee Guards- them. But with this legislation I am talk- man who stood up just a few weeks ago Next, our bill requires the Federal ing about today, we have an oppor- and asked Secretary Donald Rumsfeld, Government to cover the pay differen- tunity to provide help where it is need- Why do I have to rummage through a tial for Federal employees who are ed now—help for the thousands of he- dump to find pieces of metal to put on called to active duty. When I talked to roes and their families who are dedi- the side of my Humvee to protect my- these Guard and Reserve family mem- cating their lives to all of us by serving self? It was an embarrassing moment bers, they were worried about how they us around the globe. for the Secretary and for our country were going to make sure their families I hope my colleagues will support our to think we spent billions of dollars would be able to pay the mortgage on efforts. I look forward to working with and sent 251,000 of our best and bravest their home, or how they were going to anyone who will help move this legisla- into harm’s way in Iraq and have this pay their school costs and put food on tion this year. circumstance. the table because of the reduced pay Thank you, Mr. President. I yield the We believe we must, in the first in- from the Government. floor. stance, let our troops have the training This bill will make sure the Federal The PRESIDING OFFICER (Mr. and the equipment they need to be Government that is calling these mem- VITTER). The Senator from Illinois. safe. In addition, Democrats believe bers up to serve pays the differential Mr. DURBIN. Mr. President, we were they should have full access to mili- for our Federal employees so they do encouraged to learn yesterday that the tary TRICARE benefits, all reservists not lose income while they serve this administration has announced that it and their families. TRICARE is the country overseas. will support an increase in death bene- health insurance for the military. Next, our bill allows employers to fits for our troops and their families. There is a limitation. For example, if a claim up to $15,000 in tax credits for This has been a priority for the Demo- combat soldier dies in the line of duty, the pay deferential of Guard and Re- crats in Congress as well as many Re- the TRICARE benefits or health care serve members. Across this country publican Senators who have suggested benefits are extended to his dependents and in my home State, we have many it. only for a 3-year period. That is unreal- businesses that have employees who I have cosponsored legislation with istic. If you have a young child in a have been called up to go overseas and Senator Mike DeWine of Ohio pro- family who lost a soldier overseas, we serve their country. It is especially dif- posing increases in death benefits as believe the TRICARE benefits should ficult for small businesses that lose well as health insurance and edu- be extended until that young person their employees for 6 months, for 12 cational assistance for the families of reaches the age of 21. I believe it should months, or longer. And this bill pro- those soldiers who lose their lives in be age 23 if they are going to college. vides a tax credit to help them make service to our country. That is a reasonable proposal. It was up the pay of those employees when In fact, one of the highest priorities not in the suggestion of the adminis- they go overseas. on the Democratic side is a second bill tration yesterday, but we believe it Finally, our bill makes access to standing with our troops which em- should be included. TRICARE permanent for all members bodies that particular proposal that We also believe there should be tax of the Guard and Reserve and their the President endorsed yesterday. But incentives for private companies to families, regardless of employment or there is a lot more that needs to be make up the difference between civil- insurance status. This is an extremely done. ian and active military pay when the important provision of this bill. In the bill on the Democratic side, we reservists and guardsmen are called to I think probably the No. 1 issue I proposed that there be additional pro- duty, and a requirement that the Fed- heard from these families as I talked to visions for our troops, and Guard and eral Government do the same. them was, What do I need to do about Reserve forces and their military fami- This is a project that is near and dear our health care? We had our health lies and American veterans. Unfortu- to my heart. Twice on the floor of the care under a member who has been nately, we have not heard from the ad- Senate I had an amendment passed called to serve overseas. When we lose ministration that they support these that said the Federal Government that, how do we transition? What do we other proposals. should make up the difference in pay do about a sick child with ongoing ill- Let me tell you, though it is incred- for Federal employees who are acti- nesses and family members with health ible to believe, if a soldier gives his life vated as guardsmen or reservists to

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S686 CONGRESSIONAL RECORD — SENATE February 1, 2005 serve in Iraq and other places around Social Security should be strength- The President has said over and over the world. We salute all the private ened, not weakened. Why isn’t Presi- his plan to privatize Social Security is companies that do that. Sears & Roe- dent Bush’s plan the right way to save voluntary. If you do not want to create buck is a good example, and many oth- Social Security? a private account with the President’s ers in my State—and many units of First, President Bush’s plan would plan, he says you do not have to. That State and local government. But it is make deep cuts in the benefit paid may be, but, understand, when the shameful to know and acknowledge under Social Security and in the proc- President takes money out of the So- that the Federal Government does not ess dramatically increase the deficit. cial Security trust fund leading to ben- make up the difference in pay. The President’s privatization plan for efit cuts, those benefit cuts are going How can we say that all of these Social Security diverts money from to affect people whether or not they other companies did the right thing by the Social Security trust fund and cre- choose to have a private account. To standing by their employees who are ates an immediate cash-flow problem say it is voluntary is to overlook the risking their lives for America and the affecting seniors and those who are re- obvious. The cost of this privatization Federal Government does not do the tiring right now. plan will affect every Social Security same thing? We know that untouched the Social retiree whether or not they want to If someone has a pay check for $60,000 Security Program will pay every ben- sign up for President Bush’s privatiza- a year working for the Federal Govern- efit promised with the cost-of-living tion plan. ment, and they are a member of the Il- adjustment until the year 2042, at a The President argues Americans will linois National Guard and activated for minimum. Some estimate 2052. For 37 do better in the stock market than service and their military pay is only to 47 years, Social Security is sound they would if they wait for Social Se- $40,000 a year, I believe the Federal and solvent. curity benefits. That is possible, but Government should make up the dif- In comes President Bush who says we there are risks attached to investment. ference of $20,000 a year. Private com- need to change Social Security. We Every ad on television for a mutual panies do it; State governments do it; need to take money out of the Social fund or investment says the same local units of government do it. Why Security trust fund and allow people to thing: Past performance is no indica- doesn’t the Federal Government do it? create private accounts. tion of future return. What they are Twice we passed an amendment on Private accounts may have some saying is, there is risk involved. If you the floor only to see it die in con- value. But what about the money the put your life savings, your retirement ference committee. I think it is impor- President just took out of Social Secu- savings, into a private account under tant that this finally pass. rity? Unfortunately, the President has President Bush’s plan, you may come In addition, we want to repeal the not suggested how we would pay back out ahead, but then again you may not. prohibition against receipt of both the that money to Social Security. As a re- Relying on Wall Street is like play- Survivor Benefit Plan and the Depend- sult of the President’s proposal, if the ing retirement roulette. You may guess ent and Indemnity Compensation so Social Security trust fund is dimin- right, you may come out ahead, but the soldiers can receive the full ished in size and weakened, unfortu- those who are invested in mutual funds amount of the survivor benefit owed to nately, it will run out of money even in the stock market over the last 4 or them. We want to have full concurrent sooner than the projection of 2042. 5 years know there have been probably receipt for all disabled military retir- President Bush’s plan to privatize more losers than winners. Keep in mind that under the Presi- ees of both disability compensation and Social Security does not make it dent’s plan, part of all of your retire- retirement provisions. We also want to stronger, it makes it weaker. The ment savings invested are going to be guarantee funding for veterans health President cannot explain how he will paid to Wall Street stockbrokers for care. make up for the money that he takes We made a promise to the veterans of so-called administrative fees that can out of the Social Security trust fund. America—those who will be veterans reduce your benefits by 25 percent—a The President’s privatization plan will and who are serving today, and those windfall for Wall Street at the expense cost up to $2 trillion in the first 10 who served in the past. We promised of retirees across America. that we will stand by them for their years, and then up to $5 trillion in the Democrats want to encourage and health care in the future. We have to second 10 years. It is an extremely ex- support retirement accounts not at the put the money in our budget to make pensive proposal. expense of Social Security but in addi- Where would we come up with the that promise good. tion to Social Security. We should Finally, we want to expand the men- money to make up the difference, $2 to change the Tax Code to encourage peo- tal health services. This provision $5 trillion? The President suggested we ple to save, encourage people to create which we support will improve re- add it to the national debt, a national individual retirement accounts, 401(k) sources available to the estimated one debt which has already reached a plans. We can do that but not at the ex- out of every six military personnel in record level. How do we take care of pense of Social Security—in addition Iraq who are at risk of dealing with our national debt? Who comes in and to Social Security. posttraumatic stress disorder. loans money to make up for a national Some say private accounts would be It is a sad fact of life that many of debt? Mainly foreign governments; No. more efficient. Keep in mind the Presi- these soldiers who witnessed horren- 1, Japan, China, and Korea. The Presi- dent’s Commission on Social Security dous events come back trying to re- dent’s proposal to privatize Social Se- came up with the only plan we have for solve in their own minds the horror curity not only weakens Social Secu- private accounts so far, and they would they have witnessed. We need to stand rity, it creates a greater debt for Amer- call for a massive new Government with them and give them a helping icans and forces us to be more depend- agency to administer these Social Se- hand. I think that should be part of ent on foreign governments to loan us curity private accounts. This Govern- this administration’s proposal. money. That is the only way we sus- ment board will control the investment tain our national debt today. That, of f accounts of some 47 million Americans course, is a challenge. If those foreign and administer the program. The pri- SOCIAL SECURITY governments, for whatever reason, de- vate accounts will cost the average Mr. DURBIN. Mr. President, another cide not to buy America’s debt, we are senior $134,000 in lost Social Security issue that is, of course, timely and is in a perilous position. We will have benefits over a 20-year period. This is brought up on a regular basis is the fu- ourselves a debt and a situation where not the great positive thing that has ture of Social Security. our interest rates will have to go up been portrayed. I believe there is a problem with So- substantially to attract others to buy Young people like to invest money. cial Security. The President has said our debt. That is a good thing. Savings and in- the same. However, I don’t believe That is not where America should be. vestment ought to be encouraged, par- President Bush’s plan to privatize So- That $2 trillion deficit will not bring us ticularly by young people. We need to cial Security is going to help. I think it any closer to Social Security solvency. make certain we do not have savings is going to make the problem even In fact, it makes the Social Security and investment at the expense of re- worse. system that much weaker. tirement benefits that workers have

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S687 paid for over their lifetime. People fol- The motto of the Marine Corps is NOMINATION OF ALBERTO lowing this debate every day pay into ‘‘Semper Fidelis.’’ It means ‘‘Always GONZALES Social Security with the understanding Faithful.’’ Through his selfless and Mr. THOMAS. Mr. President, I rise in when they retire, this is going to be courageous sacrifice, Staff Sergeant support of the nomination of Alberto something they can count on. They Brian Bland lived up to those words Gonzales to be our next Attorney Gen- may not be able to live in luxury with with great honor in that he willingly eral. Certainly his life story embodies Social Security, but it is the nest egg, gave the last full measure so that oth- the American dream: Son of immigrant the cornerstone of your retirement in- ers could live in freedom and liberty. farmers, the first in his family to go to come. The idea behind Social Security SSgt Bland is survived by his wife college, attended Rice University, Har- is still a sound idea. We should keep Stacey, his mother Beverly and step- vard Law School, now nominee to be Social Security strong, we should father Mark, his brother Jeremy, his our Nation’s first Hispanic top law en- strengthen it and do it on a bipartisan grandmother Emma Lee, and his broth- forcement officer. basis, but not at the expense of cutting ers of the United States Marine Corps. I am troubled by some remarks un- benefits. That is what President Bush’s We say goodbye to a husband, a son, a fairly distorting his honorable record. I privatization plan will do in addition brother, a Marine, and an American. am concerned, as well, that the Senate to creating $2 trillion in additional Our Nation pays its deepest respect to is losing some of its civility, which is debt. That does not help Social Secu- SSgt Brian Bland for his courage, his what makes our Chamber unique. rity; in fact, it weakens Social Secu- love of country and his sacrifice, so I cannot think of anyone who would rity. That should not be our goal. that we may remain free. He was a do a better job than this man as U.S. I yield the floor and suggest the ab- hero in life and he remains a hero in Attorney General. I support him. sence of a quorum. death. All of Wyoming, and indeed the I yield to my friend from Montana. The PRESIDING OFFICER. The entire Nation, is proud of him. Mr. BURNS. I thank my friend from clerk will call the roll. So from one Marine to another, SSgt Wyoming. The assistant legislative clerk pro- Bland, Semper Fi. The PRESIDING OFFICER. The Sen- ceeded to call the roll. ator from Montana is recognized. Mr. THOMAS. I ask unanimous con- f Mr. BURNS. Could the Senator ar- sent that the order for the quorum call range some more snow to Montana? be rescinded. CORPORAL NATHAN SCHUBERT Mr. THOMAS. We are not ready yet. The PRESIDING OFFICER. Without Mr. BURNS. Mr. President, I am in objection, it is so ordered. Mr. JOHNSON. Mr. President, I rise support of the nomination of Judge f today to pay tribute to Cpl Nathan Alberto Gonzales for Attorney General Schubert, a member of the U.S. Marine of the United States. We have all heard HONORING OUR ARMED FORCES Corps, who died on January 26, 2005, his life story. I can relate to that some- STAFF SERGEANT BRIAN BLAND, USMC while serving in Operation Iraqi Free- what because he grew up in Texas. I Mr. THOMAS. Mr. President, I today dom. grew up in Missouri, starting out on 160 to express our Nation’s deepest thanks Corporal Schubert was a member of acres consisting of two rocks and dirt. and gratitude to a special young man the 1st Battalion, 3rd Marine Division He comes to this job with a different and his family. I recently received based out of Kaneohe Bay, HI. perspective. word that on January 26, 2005, Marine Answering America’s call to the mili- When we look down the line of the SSgt Brian Bland of Newcastle, WY tary, Corporal Schubert joined the U.S. nominees the President has sent to the died in the line of duty while serving Marines in October 2001. His brother, Senate for confirmation, we can see his country in the war on terrorism. Matthew, remembers him as a skilled there are a lot of calluses, a lot of dirt SSgt Bland was killed, along with 30 of athlete and a pheasant hunter. Cor- under their fingernails. That is what he his brothers in arms when the CH 53E poral Schubert was carefree and a bit brings to this job. Super Stallion helicopter they were of a joker. His sister, Elizabeth, re- We congratulate the former Attorney riding in crashed in western Iraq. The membered that, ‘‘He would sometimes General. John Ashcroft has done a Marines were on their way to provide wrap stuff from around the house to wonderful job on the heels of Sep- security operations for the recent Iraqi give as gag gifts.’’ tember 11. As the primary law enforce- elections. Corporal Schubert courageously ment officer, he was not only in charge SSgt Bland was member of 1st Bat- served our country with great distinc- of law enforcement on the domestic talion, 3rd Marine Regiment out of Ha- tion and, as a hero, died as a proud side but had a lot to do around the waii. He grew up in Newcastle and member of our Armed Forces. He world with the collection of intel- joined the Marine Corps after grad- served as a model of the loyalty, dedi- ligence, coordinating, protecting. uating from high school there in 1995. cation, and military professionalism We are in a time where we do not get he had re-enlisted twice. He held a pro- that is required for the preservation of smacked and then just simply pick up found sense of duty and knew he was freedom. The thoughts and prayers of the pieces and continue. We are in the doing the right thing, telling family my family, as well as our Nation’s, are business of preempting activities. members shortly before the crash that with his family during this time of When these nominees come with a dif- he felt good about what he was doing in mourning. As well, our thoughts con- ferent perspective, a ground-level per- Iraq. He was very proud of being a Ma- tinue to be with all those families who spective, everything they do touches rine and had planned to stay in the have children, spouses, parents, and American lives. service until he retired. He is remem- other loved ones serving overseas. I commend Judge Gonzales for ac- bered as one who enjoyed motorcycles The lives of countless people were cepting the President’s call to service. and was friendly to everyone, and he enormously enhanced by Nathan’s It is a thankless job if you look at the took every opportunity to return to goodwill and service. He inspired all dollars. Yet it carries with it great re- visit family and friends in Wyoming those who knew him and our Nation is sponsibilities. and South Dakota. a far better place because of his life. We are quickly learning how to adapt Because of people like Brian Bland All Americans owe Nathan, and the to the threat of terrorism. In an at- we continue to live safe and free. other soldiers who have made the ulti- tempt to make all Americans safe, we America’s men and women who answer mate sacrifice in defense of freedom, a have changed policy and government the call of service and wear our Na- great debt of gratitude for their serv- structure dramatically. In a free soci- tion’s uniform deserve respect and rec- ice. ety, a mobile society this makes our ognition for the enormous burden that I join with all South Dakotans in ex- job even more difficult. they willingly bear. Our people put ev- pressing my sympathies to the friends The groundwork we have laid and erything on the line everyday, and be- and family of Corporal Schubert. I will continue to build upon is what cause of these folks, our Nation re- know that he will always be missed, makes us a great nation. The United mains free and strong in the face of but his service to our Nation will never States is a world model for picking up danger. be forgotten. the pieces, adapting to new challenges.

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He pursued an academic ca- He also took a broader view on the leagues to entrust him with the honor reer, first at the military academy; issue of what was required on parental and responsibility of being our next At- then at Rice University, where he grad- notification under the Texas statute, torney General. uated; and then at the Harvard Law drawing opposition from some on the I also take a few moments to for- School. so-called right of the party. There mally thank Attorney General John He went into the private practice of again, a little different view and a lit- Ashcroft for his tremendous service the law and then was asked by then-Gov- past 4 years. I have a personal relation- ernor George Bush to work with him in tle broader view reflective of his back- ship with the Ashcroft family and un- the Governor’s office. ground and his own attitudes. derstand what he went through in the Judge Gonzales then, as noted, was a A great deal of the hearing process last 4 years. He has done his job with justice of the Supreme Court of Texas. on Judge Gonzales has been involved great dedication and integrity. He is a With the election of Governor Bush to on the issue of compliance with the Ge- man who put the right people in the the White House, Judge Gonzales has neva Convention, on compliance with right places at the right time. been White House Counsel for the last the statutes of the United States which He has served us well. He reorganized 4 years. prohibit torture. A great deal has been the Department of Justice with new di- It is not irrelevant to note that made of a statement made by Judge rectives, new directors. I thank him. Judge Gonzales would be the first His- Gonzales with respect to the Geneva His friendship, his service to the coun- panic to be Attorney General of the Conventions. He has been broadly try, should not go unnoticed and United States. That is quite a dramatic quoted on a statement that some of the unappreciated. He has done a tremen- rise in the legal community. Geneva Convention’s limitations are dous job in very stressful times. I ven- When I was elected district attorney obsolete or quaint. In an opinion which ture to say for an Attorney General, no of Philadelphia some time ago, in 1965, he circulated, he said this: time has been more stressful than the there was not a single Hispanic lawyer time John Ashcroft has hung his hat as in Philadelphia. At that time, I made In my judgment, this new paradigm— Attorney General downtown. an effort of outreach to bring minority referring to what has happened after We welcome the nominee. We have representation into the district attor- 9/11— the highest hopes for him. We wish him ney’s office as assistants and could not not only good luck but good hunting. find a single Hispanic. So there has renders obsolete Geneva’s strict limitations We also thank the outgoing Attorney been a great deal of progress. Now on questioning of enemy prisoners and ren- General. there are Hispanic Federal judges in ders quaint some of its provisions. I suggest the absence of a quorum. Philadelphia, State court judges, city That part of the statement is the one The PRESIDING OFFICER. The solicitors, prominent attorneys, but always quoted, and the comment on clerk will call the roll. Judge Gonzales would be the first His- ‘‘quaint’’ and the comment on ‘‘obso- The assistant legislative clerk pro- panic to be Attorney General of the lete’’ have drawn a lot of criticism. But ceeded to call the roll. United States, if confirmed. almost nowhere has there been a fol- Mr. SPECTER. Mr. President, I ask He will bring, I think, a unique per- lowup on what he was referring to. But unanimous consent that the order for spective because of his minority status. what he said, continuing: the quorum call be rescinded. I think he would have a broader view, The PRESIDING OFFICER. Without a different view on civil rights. We . . . renders quaint some of its provisions re- objection, it is so ordered. have an issue which is subject to some quiring that captured enemy be afforded such things as commissary privileges, scrip— f congressional oversight where some 762 CONCLUSION OF MORNING i.e., advances of monthly pay—athletic uni- alien detainees were rounded up after forms and scientific instruments. BUSINESS 9/11, and according to a report by the The PRESIDING OFFICER. Morning Inspector General of the Department of Well, when you see the reference here business is closed. Defense, there was never any showing to ‘‘items like commissary privileges,’’ f of connection to terrorism or to al- I don’t know that that would be ex- actly something to be concerned about EXECUTIVE SESSION Qaida or to any reason for their deten- tion. on a prisoner, or scrip or advances of While we know we live in a very dan- monthly pay or athletic uniforms or NOMINATION OF ALBERTO R. gerous world, there has to be some rea- scientific instruments. So in that con- GONZALES TO BE ATTORNEY son—it may not be as strong as prob- text, to say it is ‘‘quaint’’ or ‘‘obso- GENERAL able cause for an arrest, or probable lete’’ is not to challenge the underlying The PRESIDING OFFICER. Under cause for search and seizure, or even provisions of the Geneva Convention on the previous order, the hour of 10:45 sufficiency for stop and frisk—but its important substantive provisions. a.m. having arrived, the Senate will there has to be a reason for detention. In Judge Gonzales’s statements and proceed to executive session for the That is something of which I think testimony before the Judiciary Com- consideration of Executive Calendar Judge Gonzales might have some great- mittee, he has been very emphatic No. 8, which the clerk will report. er perspective. about his personal opposition to tor- The assistant legislative clerk read Judge Gonzales, I think, also would ture and about the opposition of the be expected to have a broader view on the nomination of Alberto R. Gonzales, administration to torture. He has been the immigration laws, being Hispanic, of Texas, to be Attorney General. emphatic on his opposition to trans- being from Texas, seeing the kinds of The PRESIDING OFFICER. The Sen- porting detainees to other countries problems which are present both from ator from Pennsylvania is recognized. which permit torture to enable detain- Mr. SPECTER. Mr. President, we are the point of view of stopping illegal im- ees to be tortured in other countries proceeding at the moment to the nomi- migrants and also from the point of where they could not be under the aus- nation of White House Counsel Alberto view of immigrants who come to this pices of the United States. He has been Gonzales to be Attorney General of the country who seek a better way of life. explicit in articulating the view that United States of America. He had Similarly, I think he might have the CIA is bound by the same rules pro- served as a judge on the Supreme Court some greater insights into voting of Texas and has been commonly re- rights. He took a position broadly hibiting torture as anyone else. ferred to as Judge Gonzales, which I viewed as divergent from the adminis- He has come under considerable criti- shall do during the course of my pres- tration on affirmative action in the cism for the so-called Bybee memo- entation. controversial cases involving the Uni- randum which was issued in August of Judge Gonzales, 49, comes to this versity of Michigan. Affirmative ac- 2002, signed by Jay Bybee, then Assist- nomination to be the chief law enforce- tion, always a complicated, controver- ant Attorney General of the United ment officer of the United States with sial subject, but one where differing States, where the memorandum was re- an extraordinary record. views and a broader perspective is a quested so that there would be a full

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S689 statement and an understanding of one on the Judiciary Committee and only after receiving the judgment of the De- what the law required to comply with beyond, submitting to up to four partment of Defense that a proposed course the statutes prohibiting torture in the rounds of questioning, 10 rounds each, of action was lawful. United States. and then in some cases the third round That is the end of Judge Gonzales’s That memorandum was erroneous in of 15, and in one case the fourth round statement on that. His role was reason- its legal conclusions, as has been gen- of 22 minutes, and then responding to ably, clearly delineated. He rep- erally agreed to, and has been with- very broad questions, with the New resented the President. He was respon- drawn by the Department of Justice. York Times commenting that the re- sible for saying what were the outlines The interpretation of what constituted sponses of more than 200 pages of an- of the law, or what was lawful. Those torture was very extreme, referring to swers to questions was the most expan- practices were defined by the Depart- the kind of excruciating pain and loss sive view by the administration of its ment of Justice Office of Legal Coun- of bodily function, certainly not a real- techniques and procedures on the ques- sel, which has the responsibility to do istic or an adequate or a definition of tioning of detainees. So there is no that. And then anything beyond the torture which would withstand legal doubt that Judge Gonzales has re- legal techniques of the questions would analysis or legal scrutiny. sponded very broadly to the inquiries lie with those who have the expertise, The memorandum was extreme and made of him. as he described it, and the experience, excessive in a statement, an articula- There has been a challenge that he and the responsibility from the Depart- tion of executive power. One example has not answered all the questions be- ment of Justice or from the Central In- was the statement that the President cause he could not recall specific con- telligence Agency. of the United States had as much au- versations which were held years be- There was one other statement by thority on questioning of detainees as fore, but that is entirely understand- Judge Gonzales in response to a ques- the President had on battlefield deci- able. tion by Senator KENNEDY, which I sions, which obviously makes no sense. There were questions about discus- think is a summary, which delineates When you talk about a battlefield deci- sions where representatives of the ex- his own role. When asked about a spe- sion, that is a prerogative of the Com- ecutive branch got together to discuss cific newspaper article and about mander in Chief, as it is delegated the specifics of the Department of Jus- events that occurred several years be- down through field commanders. But tice memorandum and the interroga- fore, Judge Gonzales replied: that kind of authority does not reside tion techniques to be employed by the Sir, I don’t have any specific recol- in the President on an issue such as the Department of Defense. One of his an- lection. I read the same article. I don’t questioning of detainees. swers to one of the written questions know whether or not it was the CIA The memo went quite far in sug- propounded gives a fair summary in a [that was in reference as to whether it gesting that the President had author- fairly abbreviated form as to Judge was a CIA request]. What I can say is ity to ignore statutes if he felt they Gonzales’s role. These are his words: that after this war began against this were unconstitutional. There has been Shortly after September 11, 2001, until the new kind of threat, this new kind of some question raised, although it is present, the administration has been in- enemy, we realized that there was a not explicit in the Bybee memo, about volved in conducting the war on terror by premium on receiving information. In the authority of the President to im- gathering as much information from terror- many ways, this war on terror is a war munize those who violate the law. That ists as we possibly can within the bounds of about information. If we have informa- certainly is not lawful. When you talk law. During that time, I have participated in tion, we can defeat the enemy. We had about immunizing, you talk about judi- several meetings at which possible uses of captured some really bad people who methods of questioning were discussed. cial action in the context where there These meetings may have included from we were concerned had information is a statute by the Congress of the time to time representatives from the Na- that might prevent the loss of Amer- United States authorizing immunity in tional Security Council, the Department of ican lives in the future. It was impor- a given context, immunity from crimi- State, the Department of Justice, the De- tant to receive that information, and nal prosecution to disclose some infor- partment of Defense, the Central Intel- people at the agencies wanted to be mation, but there is no suggestion any- ligence Agency, and others. In the meetings sure that they would not do anything where that the President has the au- I attended, agencies’ representatives raised that would violate our legal obliga- thority to immunize executive branch concerns that certain terrorists had informa- tions, so they did the right thing; they tion that might save American lives. The officials from noncompliance with the participants shared a desire to explore asked questions—what is lawful con- law. whether there existed methods of ques- duct, because we don’t do anything We find Judge Gonzales essentially tioning these terrorists that might elicit that violates the law. working as White House counsel, work- that information. It was always very clear So here again is a capsule statement ing for the President in a role which he that we would implement such methods only of Judge Gonzales’s role. He is rep- was very emphatic in distinguishing within the bounds of the law. resenting the President. He is not look- from the role of the Attorney General That would bear repeating, ‘‘always ing to determine what the appropriate of the United States. As Attorney Gen- very clear that we would implement scope of conduct is. That is a matter to eral he has a responsibility to rep- such methods only within the bounds be determined by those who are in- resent all of the people. As counsel to of the law.’’ Judge Gonzales continues: volved in questioning the detainees. the President, as White House counsel, As counsel to the President, my constant That is the essence of what I be- his responsibility is limited only to the emphasis and interest was on the last factor, lieve—to be succinct and to the point President. ensuring compliance with the law. It would of the issue. There are a great many The memorandum by the Department not have been appropriate for me to com- other responses that could be read, a of Justice was requested in order to ment on issues such as whether a particular great many other arguments that have the legal interpretation as to individual may have information that would could be advanced. I will reserve fur- what the appropriate line of ques- be helpful to the effort to save American ther responses on this matter as the lives or to defeat terrorists or whether a cer- tioning could be in order to be in com- tain procedure for questioning that indi- course of the argument develops. pliance with the law. That was the role vidual would be effective in eliciting that in- I thank my colleague, Senator of the Department of Justice. It was formation. Others with more relevant experi- HATCH, for coming early in the pro- not the role of Judge Gonzales. Then ence, expertise, and information were re- ceedings to make a cogent argument. the decision as to what the questions sponsible for making those judgments. In- Mr. President, I have sought recogni- would be, what the interrogation would stead it was my responsibility to ensure that tion today to state my support for the be is the role of the Department of De- any method they deemed appropriate and ef- nomination of Alberto Gonzales to be fense, again, not the role of Judge fective from an operational point of view was Attorney General of the United States. considered lawful by the Department of Jus- First, I would like to describe Judge Gonzales. tice. To the extent I was involved in rec- Judge Gonzales has been very forth- ommendations, results, and assignments Gonzales’s personal background. He coming, being available and meeting arising out of such meetings, my activities has had an extraordinary life and ca- with some 27 Senators, which is said to were directed toward ensuring that those reer. His personal story is one of dedi- be a record in being available to every- with operational responsibilities would act cation and courage—the sort of story

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S690 CONGRESSIONAL RECORD — SENATE February 1, 2005 that is possible only in America, where charge is simply false. In fact, the fending language, and—as I will discuss the dreams of even the most humble White House has made very clear that at greater length later—he has rejected citizens can be achieved through hard the United States policy and law pro- this narrow view of what constitutes work and discipline. hibit torture, and the President him- torture. Judge Gonzales was born in San An- self has insisted upon humane treat- Moreover, while the memo has now tonio, Texas, and raised in the small ment for detainees. Judge Gonzales has been repudiated and replaced by one town of Humble, just outside of Hous- been emphatic in his agreement with widely acknowledged to be more appro- ton. Although he and his seven siblings this position. When asked, point blank, priate, neither memo altered the Presi- shared a two-room house that lacked by the senior Senator from Illinois dent’s policy that detainees are to be either a telephone or hot running whether U.S. personnel can legally en- treated humanely. water, Judge Gonzales refused to be de- gage in torture under any cir- The Times editorial also cites a terred by his difficult circumstances. cumstances, Judge Gonzales answered: leaked draft memorandum from Judge He journeyed through Texas public ‘‘Absolutely no. Our policy is we do not Gonzales to the President. Some on the schools, graduating from a Texas high engage in torture.’’ To which my col- Judiciary Committee, including the school. Judge Gonzales then chose to league replied: ‘‘Good. I am glad that Ranking Minority Leader from serve his country by joining the Air you have stated that for the record.’’ Vermont and the senior Senator from Force and serving for approximately 2 Despite that exchange, and others Massachusetts, have mischaracterized years before entering the United States like it, some critics, including the edi- this draft memo as a disavowal of the Air Force Academy for a 2-year stint. tors of the Washington Post and New Conventions. Again, this ignores what Shortly thereafter, he accomplished York Times, have mischaracterized Judge Gonzales has written and said. his childhood dream of graduating from Judge Gonzales’s answers to the com- The language from the leaked memo- Rice University. Following his gradua- mittee’s questions. In its editorial of randum is often taken out of context. tion from Rice, Judge Gonzales went January 26th, the Post claimed that The relevant passage reads as follows: on to graduate from the Harvard Law Judge Gonzales had asserted the ad- The nature of the new war [against ter- School. ministration’s right to, among other rorism] places a high premium on other fac- In June of 1982, he joined the law things, ‘‘transport [foreigners] to coun- tors, such as the ability to quickly obtain in- firm of Vinson & Elkins in Houston, tries where torture is practiced.’’ In re- formation from captured terrorists and their TX, where he later became a partner. sponse to a question on this topic posed sponsors in order to avoid further atrocities Not content merely to practice law by my colleague from Massachusetts, against American civilians, and the need to try terrorists for war crimes such as wan- without giving back to the profession, however, Judge Gonzales wrote: ‘‘The tonly killing civilians. In my judgment, this Judge Gonzales also taught law as an policy of the United States is not to new paradigm renders obsolete Geneva’s adjunct professor at the University of transfer individuals to countries where strict limitations on questioning of enemy Houston Law Center. we believe they likely will be tortured, prisoners and renders quaint some of its pro- The opportunity for service arose whether those individuals are being visions requiring that captured enemy be af- again when then-Governor Bush asked transferred from inside or outside the forded such things as commissary privileges, Judge Gonzales to leave his law firm to United States.’’ He added, ‘‘I am not scrip (i.e., advances of monthly pay), athletic become the Governor’s General Coun- aware of anyone in the Executive uniforms, and scientific instruments. sel. Thereafter, Judge Gonzales em- Branch authorizing any transfer of a At his hearing, Judge Gonzales re- barked upon a distinguished career in detainee in violation of that policy.’’ asserted his commitment to the Gene- public service, including service as In case this was not clear enough, va Conventions as a whole. He told the Texas’s 100th Secretary of State from Judge Gonzales reiterated to the Sen- Judiciary Committee in no uncertain December 2, 1997 to January 10, 1999. ator from Massachusetts: ‘‘United terms: ‘‘I consider the Geneva Conven- In what would be a capstone for States policy is clear—the President tions neither quaint nor obsolete.’’ And many lawyers’ careers, in 1999 Judge has directed that the United States is he stressed that, ‘‘[t]he President has Gonzales was appointed a Justice of not to engage in torture anywhere in repeatedly condemned torture and the Supreme Court of Texas—a job he the world and is not to transfer detain- made clear that the United States will loved, and the reason he is still today ees from anywhere in the world to not condone torture.’’ When asked known as Judge. Although he enjoyed other countries where they likely will about potential changes to the Conven- his job on the Texas Supreme Court, be tortured.’’ tions, he noted: ‘‘I’m not suggesting the President called upon him to serve In the New York Times editorial, that the principles of Geneva regarding his country as the White House Coun- also dated January 26th, it is argued basic treatment, basic decent treat- sel, a position he filled throughout the that the ‘‘biggest strike against Mr. ment of human beings, should be revis- administration’s first term. Gonzales’’ is the fact that a ‘‘now repu- ited. That should always be our pole- Mr. President, no one in the Senate diated’’ Justice Department memo- star.’’ Further, in response to another could take issue with Judge Gonzales’s randum giving a ‘‘narrow definition of Democratic Judiciary Committee remarkable rise to prominence, and the torture’’ was addressed to him. This ig- Member, Judge Gonzales reiterated, obvious talent and ability that fueled nores several facts: First, Congress— ‘‘Yes, I do denounce torture, and if con- it. Indeed, I think we are all in agree- not the Administration—enacted the firmed as Attorney General, I will pros- ment about that. Nevertheless, Judge definition of ‘‘torture.’’ In 1994, Con- ecute those who engage in torture.’’ Gonzales finds himself confronting sub- gress defined torture as ‘‘an act com- Finally, none of those standing in op- stantial opposition from my colleagues mitted by a person acting under the position to Judge Gonzales has come across the aisle. The purported reasons color of law specifically intended to in- close to articulating a viable case for do not justify the opposition. flict severe physical or mental pain or linking the actions of Judge Gonzales First, the opponents of Judge suffering (other than pain or suffering to the so-called ‘‘migration’’ of a Gonzales have succeeded in confusing incidental to lawful sanctions) upon flawed interrogation policy to the the public about his views on torture. another person within his custody or atrocities committed at Abu Ghraib, To listen to Judge Gonzales’s critics, physical control.’’ and perhaps elsewhere. Despite mul- one would think that the policy of the The now repudiated Justice Depart- tiple investigations, including several United States was to promote or sanc- ment memorandum suggested that ‘‘se- discussed at our hearing, no one has es- tion torture, and that Judge Gonzales vere physical pain,’’ as used in the tor- tablished a link—even an attenuated somehow established such a policy. ture statute, should be construed nar- one—between Judge Gonzales and im- Last week, for example, the senior Sen- rowly to mean the type of pain ordi- proper interrogation techniques in the ator from Massachusetts stood on the narily ‘‘associated with a sufficiently field; I have yet to see anything other Senate floor and accused Judge serious physical condition or injury than supposition and conjecture. Gonzales of being a participant ‘‘in the such as death, organ failure, or serious So, Mr. President, I think that Judge shameful decision by the administra- impairment of body functions—in order Gonzales has been clear about the tion to authorize the torture of detain- to constitute torture.’’ But, Judge United States’ policy and his own ees at Guantanamo and in Iraq.’’ That Gonzales was not the author of this of- views against torture, leaving no

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Ignoring such ef- gated by U.S. personnel outside the stance with respect to the Office of forts is the wrong way to approach United States enjoy no substantive Legal Counsel’s memorandum on the such an important nomination and the rights under the Fifth, Eighth, and 14th anti-torture statute, the so-called wrong way to assess such a fine and Amendment. Nevertheless, regardless Bybee memo. worthy nominee. of the debate about the strict legal re- At the Judiciary Committee’s last On a related note, my colleague from quirements of Article 16, Judge Executive Meeting, the senior Senator Massachusetts and other critics, in- Gonzales testified that the administra- from Massachusetts suggested that cluding the New York Times, have tion has sought ‘‘to be in compliance as Judge Gonzales had failed to reject the seized upon the fact that the Presi- a substantive matter under the Fifth, memorandum. The record established dent’s February 2002 directive regard- Eighth, and 14th Amendment.’’ He also the contrary. For example, Judge ing the humane treatment of prisoners testified that, to the best of his knowl- Gonzales has rejected the Bybee Memo- is addressed to the Nation’s Armed edge, the United States has met its randum’s overbroad statement of Exec- Forces to suggest that somehow the substantive obligations under the utive authority. In response to the CIA has been operating without legal Fifth, Eighth, and 14th Amendments. Committee’s questions about the constraints. The senior Senator from This commitment has often been over- memorandum, Judge Gonzales said: Massachusetts, for example, has al- looked by the Judge’s opponents. It has been rejected, including that section leged that Judge Gonzales ‘‘evaded an- Contrary to the claims of his critics, regarding the Commander-in-Chief’s author- swers to questions about whether the Judge Gonzales also acknowledged ity to ignore the criminal statutes. So it has CIA can abuse prisoners, even if the that, based on his review of the rel- been rejected by the Executive Branch. I, military is prohibited from doing so.’’ evant investigations, the responsibility categorically, reject it. And, in addition to This is directly contradicted by Judge for what happened at places like Abu that, as I have said repeatedly today, this Ghraib extends further up the chain administration does not engage in torture Gonzales’s responses to the Judiciary and will not condone torture. Committee’s written questions. For ex- than the culpable guards. The Senator from Massachusetts accuses Judge During his hearing, I asked Judge ample, Judge Gonzales has written: Gonzales and others in the administra- Gonzales: ‘‘Do you agree with the The CIA and other intelligence agencies are fully bound by the prohibition on torture tion of a ‘‘continuing effort to pin the statement in the memo, ‘Congress may contained in 18 U.S.C. § 2340 and § 2340A and, blame for the torture scandal on a few no more regulate the President’s abil- depending on the circumstances, by other bad apples among our solders.’’ In re- ity to detain and interrogate enemy criminal statutes such as those defining ality, however, Judge Gonzales testi- combatants than it may regulate his crimes in the special maritime and terri- fied: ability to direct troop movements on torial jurisdiction of the United States. The reports [by Schlesinger, Faye, Kearns the battlefield’?’’ Judge Gonzales an- Those statutes prohibit, for example, assault (18 U.S.C. § 113) and maiming (18 U.S.C. § 114). and others] seem to indicate that there was swered: ‘‘I reject that statement, Sen- a failure, there was a failure of discipline ator.’’ This is a clear and unequivocal These criminal prohibitions prevent abuse of detainees by intelligence officers. In fact, amongst the supervisors of the guards there answer. the Department of Justice is currently pros- at Abu Ghraib, and also they found that Moreover, Judge Gonzales has explic- ecuting a CIA contract employee for various there was a failure in training and oversight itly recognized that Presidential au- charges of assault under 18 U.S.C. § 113. at multiple layers of Command Joint Task Force 7. And so I think there was clearly a thority in this area is indeed limited. Despite such answers, my colleague Among other things, he has noted: failure well above the actions of the individ- from Massachusetts continues to ac- uals who actually were in the prison. At We in the executive branch, of course, un- cuse the administration of sending least that’s what the reports seem to indi- derstand that there are limits on Presi- ‘‘the message that anything goes to our cate, as I review them. dential power. We are very, very mindful of Justice O’Connor’s statement in the Hamdi troops and intelligence officers in the At the same time, he rejected the no- decision that a state of war is not a blank field.’’ To the contrary, Judge Gonzales tion that inhumane treatment was tol- check for the President of the United States has stressed that the ‘‘CIA and other erated or encouraged as a matter of with respect to the rights of American citi- intelligence agencies are fully bound’’ course. He pointed out, for example, zens. I understand that and I agree with by the laws against torture. And, as that, even within Abu Ghraib, the gross that. further noted by Judge Gonzales, the misconduct of the night shift was aber- In addition, at his confirmation hear- CIA and other agencies have sought rant: ing, Judge Gonzales testified that he Department of Justice guidance con- The findings in these eight reports univer- did not agree with the portion of the cerning the boundaries emanating from sally were that a great majority, an over- Bybee Memorandum stating that se- U.S. obligations under, for example, whelming majority of our detention oper- vere physical pain, as used in the tor- Article 16 of the Convention Against ations have been conducted consistent with ture statute, was limited to pain equiv- Torture. American values and consistent with our alent to organ failure, impairment of In fact, let me take a moment to ad- legal obligations. What we saw happen on that cell block in the night shift was limited bodily function, or even death. In re- dress Article 16 directly. Some have to the night shift on that cell block with re- sponse to a question from the Commit- suggested that the administration’s in- spect to that first category, the more offen- tee’s Ranking Member, for example, terpretation of Article 16 has been used sive, the intentional severe physical and the Judge Gonzales agreed that horrific to justify or facilitate the cruel, inhu- sexual abuse, the subject of those pictures. conduct, such as cutting off someone’s mane or degrading treatment of aliens And this isn’t just Al Gonzales speaking. finger, would be considered torture. overseas. Just last week, for example, This is what, if you look at it, the Schles- Nevertheless, at the Executive Meet- the senior Senator from Massachusetts inger report concludes. And so what you see ing, the Senator from Massachusetts accused Judge Gonzales of saying ‘‘that is that you have got this kind of conduct oc- curring at the night shift, but the day shift, continued to suggest that Judge the CIA is not bound by the prohibition they don’t engage in that kind of conduct be- Gonzales might somehow condone con- on cruel, inhumane and degrading cause they understand what the rules were. duct such as, ‘‘[b]eating you, suffo- treatment in Article 16 of the Conven- And so I respectfully disagree with the char- cating you, ripping out your finger- tion Against Torture.’’ Again, this ig- acterization there was some sort of permis- nails, burning you with hot irons, sus- nores the testimony of Judge Gonzales. sive environment. pending you from hooks, putting light- At our hearing, Judge Gonzales noted Once again, on this point as with oth- ed cigarettes in your ear.’’ that, when the Senate ratified the Con- ers, the Judge’s own words refute the Such hyperbole, Mr. President, serves vention Against Torture, it took a res- accusations of his critics. to highlight the fact that arguments ervation equating the requirements Some of my colleagues have also against Judge Gonzales have ignored under Article 16 with the requirements seized upon Judge Gonzales’s inability significant statements by this nomi- under the Fifth, Eighth, and 14th to recall certain details of meetings nee. Judge Gonzales has taken impor- Amendments. Judge Gonzales further that occurred more than 21⁄2 years ago

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Others with more relevant experience, ment as well as a letter reiterating his ple, the senior Senator from Massachu- expertise, and information were responsible role in a court appearance for then- setts told the Judiciary Committee for making those judgments. Instead, it was Governor Bush. that Judge Gonzales ‘‘refuses to tell us my responsibility to ensure that any method These facts refute the claims that anything about those meetings.’’ they deemed appropriate and effective from Judge Gonzales has failed to provide us In fact, the Senator from Massachu- an operational point of view was considered with sufficient information to evaluate setts had several exchanges with Judge lawful by the Department of Justice. To the his nomination. extent I was involved in recommendations, Nevertheless, the Judge’s opponents Gonzales on this topic at our confirma- results, and assignments arising out of such tion hearing. The Senator queried, for meetings, my activities were directed toward continue to clamor for more. At the ex- example: ‘‘I just want to point out, if it ensuring that those with operational respon- ecutive meeting, for example, the sen- is true, as the Post reported, that you sibility would act only after receiving the ior Senator from Massachusetts com- held several meetings at which the le- judgment of the Department of Justice that plained that Judge Gonzales had ‘‘not gality of interrogation techniques, a proposed course of action was lawful. conducted a search for . . . requested such as threat of live burial and water- That answer provides a good deal of documents.’’ In fact, my colleague said boarding were discussed; do you re- information. The fact that he cannot it would be ‘‘hard to imagine a more member that?’’ Judge Gonzales re- recall details of those meetings is un- arrogant insult to this Committee’s sponded: derstandable. It is commonplace to for- oversight responsibility.’’ Senator, I have a recollection that we had get details of meetings, particularly I requested that a search be con- some discussions in my office, but let me be when years have passed. It is certainly ducted for any draft or final memo- very clear with the Committee. It is not my not, given the responses that have been randa or other documents written by job to decide which type of methods of ob- made, a reason to oppose someone who Judge Gonzales and relevant to the taining information from terrorists would be is universally praised for his ability subject of interrogation techniques or most effective. That job responsibility falls and integrity. torture. The White House responded by to folks within the agencies. It is also not Since his nomination, the White conducting a search. my job to make the ultimate decision about whether or not those methods would, in fact, House has offered every Committee On January 19, 2005, at the direction meet the requirements of the anti-torture member a personal, private meeting of the White House Chief of Staff, statute. That would be a job for the Depart- with Judge Gonzales. To date, the David Leitch, Deputy Counsel to the ment of Justice. And I never influenced or Judge has met personally with 14 mem- President, supervised a search of cer- pressured the Department to bless any of bers of the Judiciary Committee, and tain electronic records available in the these techniques. I viewed it as their respon- more than a dozen other Senators. Office of Counsel to the President. Spe- sibility to make the decision as to whether At his hearing, Judge Gonzales testi- cifically, he searched for word proc- or not a procedure or method of questioning fied for nearly 6 hours, answering mul- essing documents containing the words of these terrorists that an agency wanted, tiple rounds of questions. There were would it, in fact, be lawful. ‘‘torture’’ or ‘‘interrogation’’ that were three rounds of questions, and I en- located on (1) the shared Counsel’s Of- Given the passage of time, his inabil- couraged Senators to participate in fice directory, (2) the personal and net- ity to recall precise details is under- each round. After a complete and work directories used by Judge standable. Moreover, it must be viewed lengthy first round, 9 Senators partici- Gonzales and his assistants, or (3) the in the context of what he has recalled pated in a second round of questions. hard drive of Judge Gonzales’s com- and provided to the committee. Among After that, 4 Senators including myself puter. other things, he has: acknowledged his took advantage of the third round. I According to the White House, based participation in meetings where the made sure every Senator had ample op- on the practices concerning documents questioning of detainees was discussed; portunity to question Judge Gonzales. created by Judge Gonzales, there is a explained the genesis and purpose of Indeed, one Senator was ultimately very high probability that any docu- such meetings; described the limited granted a fourth round of questions. ment of the sort described would have nature of his role; and explained the re- Contrary to the assertion by the Sen- been identified as a result of this sult of these meetings. In one lengthy ator from Massachusetts that Judge search. I have been advised, however, written answer to a question posed by Gonzales was unresponsive and he that no such documents were identified my colleague from Massachusetts, for made ‘‘a mockery of the notion of con- by the administration. instance, he explained: gressional oversight and account- Moreover, the White House has rep- Since shortly after September 11, 2001 until ability,’’ Judge Gonzales’s answers to resented, and Judge Gonzales con- the present, the Administration has been in- the committee’s written questions, firmed, that he has no notes reflecting volved in conducting the War on Terror by contained in 221 single-spaced pages, discussions at any meetings concerning gathering as much information from terror- ists as we possibly can within the bounds of provided nearly 450, often detailed, re- these topics, nor does the White House law. During that time, I have participated in sponses on issues ranging from the war believe there are any notes taken by several meetings at which the possible use of on terrorism to intellectual property. Judge Gonzales in the files of the of- methods of questioning were discussed. So thorough was Judge Gonzales’s re- fice. These meetings may have included, from sponse that the New York Times (Jan- Finally, I have been advised that, time to time, representatives from the Na- uary 19, 2005) stated that Judge during Judge Gonzales’s tenure as tional Security Council, the Department of Gonzales’s answers to the committee’s counsel to the President, there have State, the Department of Justice, the De- written questions comprised ‘‘one of never been any audio recordings or partment of Defense, the Central Intel- ligence Agency, and others. In the meetings the administration’s most expansive transcriptions of any meetings in the I attended, agencies’ representatives raised statements of its positions on a variety White House Counsel offices con- concerns that certain terrorists had informa- of issues, particularly regarding laws cerning these topics, or any others, so tion that might save American lives; the and policies governing C.I.A. interroga- far as the White House is aware. participants shared a desire to explore tion of terror suspects.’’ Judge Gonzales and the White House whether there existed methods of ques- The questions kept pouring in even have undertaken appropriate efforts to tioning these terrorists that might elicit after the committee’s hearing record accommodate the Senate by providing that information; and it was always very closed on Thursday, January 13th, with relevant information. Between his clear that we would implement such methods 4 Senators submitting more than 40 ad- written answers and his testimony, only within the bounds of the law. As Coun- sel to the President, my constant emphasis ditional questions for the nominee. Judge Gonzales has addressed his role and interest was on the last factor—ensuring Judge Gonzales has now responded to in the solicitation and provision of compliance with the law. It would not have all of those supplemental questions. In legal advice, as well as his personal been appropriate for me to comment on 27 additional pages of questions and an- views on the contested issues—such as

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S693 the treatment of detainees. There is an been privileged to advise the President and cause I will not use the same amount ample record to evaluate his nomina- his staff. In the latter I would have a far of time now, I ask unanimous consent tion. I urge Senators to review the vo- broader responsibility: to pursue justice for that the Senator from California, Mrs. all the people of our great Nation, to see luminous materials that have been pro- FEINSTEIN, be allowed to follow my re- that the laws are enforced in a fair and im- duced before coming to any conclusion. partial manner for all Americans. marks. Mr. President, another argument The PRESIDING OFFICER. Is there used by the Gonzales critics is that he That is a clear statement that he rec- objection? refused to answer certain hypothetical ognizes the difference between his cur- Without objection, it is so ordered. questions during his hearing. Using the rent job and the job of Attorney Gen- Mr. LEAHY. Mr. President, I ask rejected language of the Bybee memo eral. Judge Gonzales has been the law- unanimous consent to have printed in about a postulated Commander-in- yer for one person—the President—and the RECORD a number of recent edi- Chief override of the torture statute, is now going to serve as a lawyer for all torials regarding the nomination of certain Judiciary Committee members Americans. Judge Gonzales knows the Alberto Gonzales. repeatedly asked Judge Gonzales difference and will serve honorably as There being no objection, the mate- whether he believed the President the next Attorney General. rial was ordered to be printed in the could authorize torture in extreme and Before I conclude, Mr. President, I RECORD, as follows: hypothetical circumstances. Judge want to emphasize a few of the positive [From the Los Angeles Times, Jan. 6, 2005] comments my Democratic colleagues Gonzales refused to engage in scenarios A WINDOW ON A MAN’S MORALITY; ALBERTO R. on the Judiciary Committee have made about when, if ever, torture might be GONZALES’ RECORD RAISES QUESTIONS sanctioned, because the President has about this nominee. At his confirma- ABOUT HIS FITNESS TO SERVE AS ATTORNEY rejected torture under any cir- tion hearing, the senior Senator from GENERAL cumstances. Wisconsin told Judge Gonzales: ‘‘As The Republicans’ comfortable majority in So, when the ranking minority mem- you know, we have had an opportunity the Senate means that Alberto R. Gonzales ber asked, ‘‘Now, as Attorney General, to work together on several different will almost certainly be confirmed as the would you believe the President has issues over the years, and I have come next attorney general. With hearings on his to respect you also. And I believe if you nomination set to start today, many Demo- authority to exercise a Commander in crats think the best they can do is wound Chief override and immunize acts of are confirmed that you will do a good job as Attorney General of the United Gonzales enough with questions about his torture?’’ Judge Gonzales answered: notorious torture memos to disqualify him [T]he President has said we are not going States.’’ At our Executive Meeting, the for any future Supreme Court seat. In the to engage in torture under any cir- senior senator from Delaware noted: end, however, they will feel pressure to sup- cumstances. And so you’re asking me to an- ‘‘My vote, to state the obvious, is not port him or face retaliation from Repub- swer a hypothetical that is never going to about his character or his compelling licans. occur. This President has said we’re not personal story, which is compelling. He They should resist. going to engage in torture under any cir- has overcome great adversity in his The eight Democrats and a smattering of cumstances, and therefore, that portion of life, and I believe he is an intelligent, moderate Republicans who voted for John Ashcroft four years ago probably felt the the opinion was unnecessary and was the decent and honorable man.’’ The senior reason that we asked that that portion be same pressure. withdrawn. senator from New York said, ‘‘I like No one now can doubt the enormous power Judge Gonzales. I respect him. I think Given the administration’s clear pol- the attorney general wields or the lasting he is a gentleman and I think he is a harm the person who holds that office can icy, this response is appropriate. Judge genuinely good man.’’ Such comments do. Gonzales may not share his predecessor’s Gonzales has explained that the Bush do not surprise anyone who has gotten zeal in hounding X-rated moviemakers or administration will not engage in tor- to know Judge Gonzales. cancer patients who smoke marijuana, but ture under any circumstance, so his re- As I have noted, Judge Gonzales has as the president’s chief lawyer, he has been luctance to contradict the President’s every bit as reckless. taken a strong stand against torture, policy is perfectly understandable. As a leading architect of Bush’s ends-justi- In fact, even the distinguished wit- rejected suggestions that the President fies-means war on terror, Gonzales pushed to nesses on the second panel of our con- is above the law, and recognized the justify torturing terror suspects in violation firmation hearing, including two law important distinctions between the po- of international law, promoted military tri- bunals that echo Stalin’s show trials, helped school deans and an advocate for vic- sition of White House Counsel and At- torney General. So, what is behind the write the Patriot Act (which, among other tims of torture, were unwilling to en- powers, gives government agents vast new gage in hypothetical debates about votes against him? Not his personal story. Not his character. Not his will- snooping authority) and excused the limit- what set of circumstances—if any— less imprisonment of American citizens might justify a presidential decision to ingness to work with Congress. There whom the president merely suspects of ter- approve torture. One witness even may well be a large overhang of poli- ror activity. characterized the hypothetical about a tics clouding this nomination. Politics, Three years into that war, much of Gonzales’ handiwork has been rejected by ticking time bomb as ‘‘fantasy’’ and however, is a poor reason for denying the President his choice to be Attorney courts, damned by the world community and part of the ‘‘mythology’’ of torture. disavowed by the administration—as in the Such reticence is understandable, espe- General. I urge my colleagues to con- sider this nomination based on the Justice Department memo quietly released cially for someone, like Judge last week declaring that ‘‘torture is abhor- facts. Regardless of what administra- Gonzales, who serves a President who rent to both American law and values and to has rejected the use of torture under tion is in power, that is a standard we international norms.’’ any circumstances. should all honor. Gonzales’ defenders argue that, as White Another of the anti-Gonzales shib- Mr. President, the bottom line is House counsel, he was simply a passionate boleths is that he is too close to the that Judge Gonzales is a remarkable advocate for his client. But the most devoted American, well-suited for the position counselor knows that, even in wartime, President to be independent. This argu- there are legal and moral lines this nation ment ignores what Judge Gonzales, an of Attorney General, who has been forthcoming with the Senate and the crosses at peril to its own citizens and those honorable and credible man, told the of other countries. Gonzales’ justifications Judiciary Committee. During his open- American people about his role in some opened the door to the abuse at Abu Ghraib ing statement, and several times there- very difficult decisions during a very prison and the Guantanamo Bay detention after, Judge Gonzales acknowledged important time. He is a good man. facility. The mistreatment and prisoner the difference between his role as Even his opponents acknowledge that. deaths that occurred have raised fears of re- White House Counsel and the job of At- I urge my colleagues to support Judge taliation against captured Americans. Those Gonzales to be Attorney General. concerns prompted a dozen retired generals torney General. At the outset of our and admirals, along with civil rights groups, hearing, he noted: I yield the floor. The PRESIDING OFFICER (Mr. to oppose Gonzales’ nomination. With the consent of the Senate, I will no Our justice system relies on an attorney longer represent only the White House; I will SUNUNU). The Senator from Vermont is general willing to defend civil liberties as ar- represent the United States of America and recognized. dently as he pursues criminals and terror- its people. I understand the differences be- Mr. LEAHY. Mr. President, I will not ists. That person must be someone who re- tween the two roles. In the former I have at this point speak quite as long. Be- spects both the power and the limits of law.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S694 CONGRESSIONAL RECORD — SENATE February 1, 2005 Gonzales’ record as White House counsel is But as head of the Justice Department, the [From the Star Tribune (Minneapolis, MN), not just a series of unfortunate missteps; attorney general should answer only to the Jan. 8, 2005] rather, it is a troubling window into the law. man’s morality and his fitness to be the na- GONZALES; DEMOCRATS SHOULD REJECT HIM tion’s chief lawyer. Democratic senators will [From the Milwaukee Journal Sentinel, Jan. Democrats in the U.S. Senate have many surely ask Gonzales sharp and embarrassing 8, 2005] well-founded reasons to oppose with all their questions about the principles that guided might President Bush’s nomination of his tenure in the Office of Legal Counsel. EDITORIAL: DON’T CONFIRM GONZALES Alberto Gonzales to be attorney general. But These lawmakers then ought to demonstrate Thursday’s Senate confirmation hearing one reason stands out above all others, and that they understand the principles at stake provided Alberto R. Gonzales with an oppor- Democrats should pound it home: Gonzales by actually voting no. tunity to confront some of the nagging ques- believes the president of the United States tions that have been raised about his nomi- has the power, as commander in chief, to [From the Arizona Daily Star, Jan. 8, 2005] nation to be attorney general. So important permit the use of torture by American forces WRONG FOR THE JOB is the office to which Gonzales aspires that by immunizing from prosecution anyone who George W. Bush understandably wants a the Senate and the American people needed does it. trusted adviser to be his next attorney gen- to hear convincing answers to these ques- This reasoning was put forward in an Au- eral. White House Counsel Alberto Gonzales tions. They deserved assurances that gust 2002 memo, called the Bybee memo, enjoys that trust, but the President’s nomi- Gonzales had the judgment, the tempera- from the Department of Justice to the White nee is the wrong man for the job. ment and the integrity necessary for this House. Gonzales testified before the Senate With Republicans outnumbering Demo- cabinet position. Judiciary Committee Thursday that he, as crats by 55–45 in the Senate, Gonzales is like- Far from supplying this reassurance, the president’s lawyer, simply passed the ly to win approval for the position. Yet, the Gonzales proved to be consistently weak and memo along. It wasn’t his job, he said, to man who advocated the use of torture as an evasive. So intellectually sterile was his tes- warn the president of the memo’s implica- interrogation tool is not only unqualified, he timony that it showed Gonzales to be unfit tions or to disagree with it. Gonzales has a is a threat to the rights of Americans. for the important office he seeks, and for Before Thursday’s Senate hearing on his peculiar notion of his role as the president’s this reason the Senate should reject his nom- attorney; others quite rightly characterize nomination, Gonzales was merely a legal ad- ination. viser who was unqualified. But during the his behavior as a dereliction of duty. In fact, Realistically, of course, this will almost hearing he showed himself to be a man of there’s good reason to believe Gonzales was certainly not happen; Democrats on the Ju- questionable morality and ethics. an active participant in the memo’s con- For example, his 2002 memo to the presi- diciary Committee signaled Thursday that, struction. dent stated that the war on terror ‘‘renders despite reservations about Gonzales, they But whatever his role, Gonzales clearly obsolete Geneva’s strict limitations on ques- will support the nomination. Indeed, they agreed with the memo, and does to this day. tions of enemy prisoners and renders quaint make a respectable case, which is that presi- dents are entitled to broad leeway in the se- Sen. Patrick Leahy, D–Vt., the ranking some of its provisions.’’ The Geneva Conven- Democrat on the committee, tried every way tions outline how prisoners of war should be lection of their cabinet members. But there are limits to the discretion to which presi- he could to get Gonzales to answer ‘‘yes’’ or treated. ‘‘no’’ to a simple question: ‘‘Now, as attorney But when questioned by the Senate on dents are entitled; otherwise, the entire con- general, would you believe the president has Thursday, Gonzales said this: ‘‘Contrary to firmation process becomes meaningless. the authority to exercise a commander-in- reports, I consider the Geneva Conventions Unfortunately, Gonzales’s views put him chief override and immunize acts of tor- neither obsolete nor quaint.’’ He said his beyond even these broad limits. As White ture?’’ Gonzales tried all kinds of tacks to early interpretation applies only to organi- House counsel, he was largely responsible avoid answering: The question is hypo- zations like al-Qaida that have no national for, or at least acquiesced in, a repudiation thetical because Bush opposes the use of tor- affiliation and do not ‘‘fight according to the of some of this country’s most precious ture, etc. Leahy persisted, and finally laws of war.’’ And he said the Geneva Con- ideals, such as the notion that human beings Gonzales said, ‘‘Senator, I do believe there ventions’ protections for terrorists would should not be tortured. may come an occasion when the Congress ‘‘honor and reward bad conduct.’’ And he In January 2002, Gonzales told President might pass a statute that the president may pledged to prosecute those who tortured ter- Bush that the war on terror ‘‘renders obso- view as unconstitutional,’’ and therefore he rorism suspects. lete’’ some of the strict limitations imposed can ignore it. The answer was disingenuous However, he noted that the White House is by the Geneva Conventions as applied to al- because the issue isn’t laws Congress might looking to change some of the Geneva Con- Qaida and, in some cases, Taliban fighters. pass, but established U.S. and international ventions’ guidelines. There again, one has to Arguably, one can make that legal case but laws that prohibit the use of torture. Thus, question whether Gonzales is saying the elsewhere in that letter, and more dis- the only reasonable way to interpret right things in order to win the job. turbing, was the tone Gonzales adopted when His statements now and in the past are in- Gonzales’ answer in the context it was asked he dismissed as merely ‘‘quaint’’ some of the is that, indeed, the president has the power consistent at best. But more important, the convention’s human rights provisions. In Au- legal opinion he forwarded to the president to permit torture by immunizing those who gust 2002, Gonzales received a Justice De- do it. and this administration cannot be separated partment memorandum that a president from the scandals of torture and death at could suspend Geneva Convention protec- The White House has done its darnedest to Abu Ghraib prison in Iraq. tions at will and that some forms of torture frustrate Judiciary Committee inquiries into It is significant that among his Senate ‘‘may be justified.’’ Gonzales’ role in the torture scandal. Leahy supporters, Gonzales’ legal abilities and his On Thursday, Gonzales disavowed the use Thursday held aloft a hefty file of unan- leadership skills are hardly mentioned as top of torture. A week earlier, the Justice De- swered questions and letters he had sent to qualifications. Supportive senators instead partment had repudiated its August 2002 the White House seeking information on promote the nominee’s rags-to-riches story. memo. But why did this reversal take this Gonzales’ views about torture and his role in Second among his qualifications is that he long? In light of Gonzales’s four-year record, framing policies that led to the Abu Ghraib would become the nation’s first Hispanic at- his disavowal of terrorism seemed merely scandal and the abuse of prisoners at Guan- torney general. rhetorical and tactical. Efforts to elicit tanamo Bay. Despite that, Leahy and his This administration has an affinity for Gonzales’s views were met with vagueness colleagues got Gonzales on the record saying those kinds of stories. But it should have and equivocation. Gonzales said he couldn’t that he does believe the president has the learned from the Bernard Kerik nomination remember key details of his involvement power to override U.S. laws. that they don’t always make for good na- with the August 2002 memo. He wasn’t even That’s all the Democrats need to oppose tional leadership. Kerik withdrew his nomi- sure whether Americans could legally engage Gonzales’ confirmation en masse, and they nation as head of Homeland Security after in torture under any circumstances. should. Torture is always out of bounds, no questions arose about the immigration sta- matter the circumstance; it is immoral, inef- tus of a housekeeper and nanny he employed. Ordinarily, even these gross deficiencies Gonzales’ ethnicity, his accomplishments might be tolerable. But these are not ordi- fective and puts captured American forces at and his role as adviser to the president for nary times. The threat to civil liberties risk. Previous congresses and presidents nine years are admirable but irrelevant. His posed by the fight on terror requires an at- have enacted laws and ratified international background makes for great political theater torney general with a demonstrated record treaties to that effect. but does not qualify him to be attorney gen- of sound judgment, independent tempera- The United States does not need an attor- eral. And one would hope that Hispanics ment and unquestioned integrity. ney general who believes that this president would not rush to blindly support a man who Gonzales’s rags-to-riches personal story is has the right to override those laws and trea- is clearly wrong for the job. an inspiration to all Americans. But his ties at his whim. Even if Gonzales is eventu- Alberto Gonzales has a history of bending story is not the issue. He has not dem- ally confirmed, as it appears he will be, Sen- the law to fit policy and the wishes of the onstrated the judgment and integrity to be ate Democrats must be on the record uphold- president. Eagerness to please makes him a the nation’s chief law enforcement officer at ing the powerful principle that the United great adviser and confidant. this pivotal time in our history. States unequivocally rejects torture.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S695 [From the Slate (South Carolina), Sat. Jan. to vote against it, as loyal Republicans and month, some of his answers to questions 15, 2005] as Americans. Only when they and others do about the treatment of prisoners in Iraq, Af- TORTURE TAINT SHOULD DISQUALIFY NOMINEE so might this president finally see the need ghanistan and elsewhere left some Demo- GONZALES for change in key elements of his war strat- cratic committee members wanting more. So egy, and start making top personnel deci- they asked a series of follow-up questions to After last week’s confirmation hearing for sions based on that new understanding. This be answered in writing. And when Gonzales Alberto Gonzales, even senators who disliked must happen, for the sake of the nation. provided his answers, those same senators the nomination said he would be confirmed, still found themselves wanting more. for no other reason than he is the one Presi- [From the Boston Globe, Jan. 18, 2005] So they decided to delay—for at least one dent Bush asked for. ‘‘There’s a lower stand- week—a committee vote on his nomination ard, frankly, for attorney general than for UNFIT AS ATTORNEY GENERAL to succeed John Ashcroft as attorney gen- judge, because you give the president who he Two memos on the US treatment of detain- ees from Afghanistan and Iraq stand in the eral. It was the right move. wants,’’ said Sen. Charles Schumer, D–N.Y. There are real questions about Gonzales’s way of Alberto Gonzales becoming the next There’s a sad symmetry in this. Mr. fitness to serve as attorney general. His attorney general of the United States. At his Gonzales’s work as legal counsel to the presi- nomination should not move forward until confirmation hearing earlier this month, he dent on the issue of torture has been rejected those questions are answered. neither disavowed the memos nor showed an by the U.S. Supreme Court and disowned by He has written that certain provisions of understanding of how their denial of inter- the White House—only after it backfired po- the Geneva Conventions—which provide for national protections to detainess could lead litically and legally. His principal qualifica- the treatment of enemy prisoners—are to the many cases of prisoner abuse reported tion is unambiguous loyalty to the presi- ‘‘quaint’’ or ‘‘obsolete.’’ Gonzales approved a by both the FBI and the International Red dent. In short, his selection reflects what memorandum saying that the president Cross. The Senate should reject his nomina- sadly seems to be the overriding attribute ‘‘wasn’t bound by laws prohibiting torture tion. this president wants in his subordinates. and that government agents who might tor- In his testimony, Gonzales made frequent That might be good enough for the president, ture prisoners at his direction couldn’t be reference to the much-photographed in- but it does not make him the right choice to prosecuted by the Justice Department.’’ be the nation’s top lawyer; in fact, in this stances of prisoner humiliation and abuse at Gonzales has said he believes that the case it should mean just the opposite. Abu Ghraib, as though the naked-body pyr- president of the United States has the au- Mr. Gonzales has helped this administra- amid and other abuses that Specialist thority to order the detention of enemy com- tion pursue the human equivalent of the Charles Graner was justifiably convicted of batants indefinitely during wartime. He has hiddenball trick. Guantanamo Bay, Cuba, Friday were the worst of what has occurred. repeatedly backed the provisions in the USA was chosen as the U.S. detention facility for But the FBI and Red Cross reports as well as Patriot Act that infringe most broadly on ‘‘enemy combatants’’ under the assumption the military’s own investigations of killings civil liberties and the fundamental right of that it could be defined as a legal no-man’s- of prisoners make clear that some interroga- the citizens to be left alone. land, a place where the laws of the United tors and guards crossed the line into torture When he was attorney general of Texas— States do not apply. It would be years before or homicide. It is disingenuous of Gonzales while George W. Bush was governor—he the U.S. Supreme Court ruled, as Sen. not to acknowledge the link between permis- wrote a memo directly contradicting a fed- Lindsey Graham put it, that ‘‘Gitmo is not sive torture policies from Washington and eral law that grants foreign nationals access Mars.’’ The administration took other ac- acts of abuse that occurred not just at Abu to American courts when they are accused of tions, including denying legal counsel to de- Ghraib but in Afghanistan and Guantanamo a crime. tainees, that it thought were unlikely to as well. And the list goes on and on. withstand court scrutiny, so it endeavored In 2002 as White House counsel, Gonzales The president has nominated Alberto instead to stall definitive rulings as long as wrote a memo in which he called provisions Gonzales to be the chief law enforcement of- it could. of the Geneva Conventions regarding pris- ficer in the United States. The attorney gen- Few of these actions can rise to the appro- oners of war ‘‘obsolete’’ and ‘‘quaint’’ and eral sits at the very top of the U.S. Depart- priately high standard delineated by Sen. said the United States could operate as ment of Justice. The person in that position Graham during the confirmation hearing: ‘‘I though the conventions did not apply to the must possess a scrupulousness that is beyond do believe we have lost our way, and my Afghan war. Indeed, some of the fighters cap- question. challenge to you as a leader of this nation is tured during the 2001 war against the Taliban Gonzales has not, to date, demonstrated to help us find our way without giving up our and Al Qaeda in Afghanistan might not have that he has the qualities that an individual obligation and right to fight our enemy.’’ deserved the status of POWs. needs to be elevated to one of the most sig- But will Mr. Gonzales lead the Justice De- But the Geneva Conventions—and Amer- nificant positions in this nation. partment to meet that standard? ican law—make clear that any battlefield de- His answers during the confirmation hear- tainee has that status until a ‘‘competent [From the New York Times, Jan. 26, 2005] ing showed less of the firm moral base the tribunal’’ puts him in the less protected cat- THE WRONG ATTORNEY GENERAL position requires, and more of a tendency to egory of ‘‘enemy combatant.’’ As US Judge Alberto Gonzales’s nomination as attorney look at things in a lawyerly way, in the James Robertson noted in a ruling last No- general goes before the Senate at a time Clintonian sense of the term. He said his new vember, the Geneva Conventions do not give when the Republican majority is eager to zeal to keep to the legal straight-and-narrow any individual, including the president, the provide newly elected President Bush with on torture stems from a new understanding authority to say who deserves POW status. the cabinet of his choice, and the Democrats that he would represent not just the presi- The White House counsel certainly lacks are leery of exposing their weakened status dent anymore, but the whole United States. that authority. by taking fruitless stands against the inevi- But shouldn’t advising the president have The second memo that has damaged the table. None of that is an excuse for giving been enough of a guide for Mr. Gonzales to US reputation worldwide was written in 2002 Mr. Gonzales a pass. The attorney general strive to uphold bedrock American prin- by a Justice Department official as a guide does not merely head up the Justice Depart- ciples? He treats the now-discredited legal to interrogation techniques. The memo, ment. He is responsible for ensuring that opinions as if they have been vaporized. But which Gonzales discussed with administra- America is a nation in which justice pre- they had, and are still having, real-world ef- tion officials, said a president has the power vails. Mr. Gonzales’s record makes him un- fects, some of them disastrous to the U.S. to authorize torture despite a 1994 US law qualified to take on this role or to represent cause (such as Abu Ghraib). And which rep- banning it. At the confirmation hearing, the American justice system to the rest of resents the real Alberto Gonzales: the man Gonzales declined chances to repudiate that the world. The Senate should reject his nom- who appeared before the Senate or the one view. ination. who advised President Bush? The Sept. 11, 2001, attacks thrust the The biggest strike against Mr. Gonzales is This administration, and far more impor- United States into a new kind of conflict in the now repudiated memo that gave a dis- tantly this nation, must make a clean break which useful intelligence from detainees is turbingly narrow definition of torture, lim- from the policies identified with Mr. crucial. But Gonzales has been at the center iting it to physical abuse that produced pain Gonzales. Making him attorney general of of administration policy-making that set of the kind associated with organ failure or the United States accomplishes the opposite. aside tried and true US and international death. Mr. Gonzales’s attempts to distance This nomination tells the world that no rules governing the collection of this infor- himself from the memo have been uncon- minds have been changed in this country mation. His blindness to the consequences of vincing, especially since it turns out he was about the use of torture; it says America those policies makes him a poor choice for the one who requested that it be written. sees no conflict between detaining suspects chief law enforcement officer of the nation. Earlier the same year, Mr. Gonzales himself without legal counsel and trying to hold our sent President Bush a letter telling him that [From the Republican (Western constitutional democracy aloft as an exam- the war on terror made the Geneva Conven- Massachusetts), Jan. 23, 2005] ple to the world. tions’ strict limitations on the questioning Sen. Graham seems to understand that GONZALES NOMINATION LEAVES MANY of enemy prisoners ‘‘obsolete.’’ Alberto Gonzales is not the best choice. Both QUESTIONS These actions created the legal climate he and Sen. Jim DeMint have a duty, if they When Alberto Gonzales appeared before the that made possible the horrific mistreat- truly see the problems with this nomination, Senate Judiciary Committee earlier this ment of Iraqi prisoners being held in Abu

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S696 CONGRESSIONAL RECORD — SENATE February 1, 2005 Ghraib prison. The Bush administration or degrading treatment with respect to with Judge Gonzales during his years often talks about its desire to mend fences aliens overseas.’’ as President Bush’s counsel. As Sen- According to most legal experts, this is a with the rest of the world, particularly the ator KENNEDY has said, I dearly wish Muslim world. Making Mr. Gonzales the na- gross distortion of the law. The Senate cited the constitutional amendments in ratifying that we could vote for that compelling tion’s chief law enforcement officer would story, and not for the nominee whose set this effort back substantially. the treaty precisely to set a clear standard Other parts of Mr. Gonzales’s record are that could be applied to foreigners. Never- record is before us. In my case, I will also troubling. As counsel to George Bush theless, Mr. Gonzales uses this false loophole vote based on the record. when he was governor of Texas, Mr. Gonzales to justify practices that contravene funda- It saddened me to call Judge did a shockingly poor job of laying out the mental American standards. He was asked if Gonzales last week and tell him that I legal issues raised by the clemency petitions there were any legal prohibition against U.S. could not in good conscience vote to from prisoners on death row. And questions personnel using simulated drowning and confirm his nomination to be Attorney have been raised about Mr. Gonzales’s ac- mock executions as well as sleep depriva- General, the chief law enforcement of- tion, dogs to inspire fear, hooding, forced nu- count of how he got his boss out of jury duty ficer of the Nation. He is not the per- in 1996, which allowed Mr. Bush to avoid dity, the forced injection of mood-altering drugs and the threat of sending a detainee to son for this job. stating publicly that he had been convicted My reasons for voting against Judge of drunken driving. another country for torture, among other Senate Democrats, who are trying to de- abuses. He answered: ‘‘Some might. . . be Gonzales arise from the need for ac- fine their role after the setbacks of the 2004 permissible in certain circumstances. ‘‘ countability and derive from the nomi- election, should stand on principle and hold This is not a theoretical matter. The CIA nee’s involvement in the formulation out for a more suitable attorney general. Re- today is holding an undetermined number of of a number of policies that have tar- publicans also have reason to oppose this prisoners, believed to be in the dozens, in se- nished our country’s moral leadership nomination. At the confirmation hearings, cret facilities in foreign countries. It has provided no account of them or their treat- in the world and put American soldiers Senator LINDSEY GRAHAM, Republican of and American citizens at greater risk. South Carolina, warned that the administra- ment to any outside body, and it has allowed no visits by the Red Cross. According to nu- When President Bush announced this tion’s flawed legal policies and mistreatment nomination he said that he chose of detainees had hurt the country’s standing merous media reports, it has subjected the and ‘‘dramatically undermined’’ the war on prisoners to many of the abuses Mr. Gonzales Judge Gonzales because of his ‘‘sound said ‘‘might be permissible.’’ It has practiced terror. Given the stakes in that war, sen- judgment’’ and role in shaping the Ad- such mistreatment in Iraq, even though de- ators of both parties should want an attor- ministration’s policies in the war on tainees there are covered by the Geneva Con- ney general who does not come with this terrorism. Based on the glimpses of se- ventions; according to official investigations nominee’s substantial shortcomings. by the Pentagon, CIA treatment of prisoners cret policy formulations and legal ra- there and in Afghanistan contributed to the tionales that have come to light, I be- [From the Washington Post, Jan. 26, 2005] adoption of illegal methods by military in- lieve his judgments not to have been A DEGRADING POLICY terrogators. sound. On the contrary, several of this Alberto R. Gonzales was vague, unrespon- In an attempt to close the loophole, Sen. Administration’s legal policies have sive and misleading in his testimony to the RICHARD J. DURBIN (D-Ill.), Sen. JOHN been exceedingly harmful to our na- Senate Judiciary Committee about the Bush MCCAIN (R-Ariz.) and Sen. JOSEPH I. tional interests. administration’s detention of foreign pris- LIEBERMAN (D-Conn.) sought to attach an As Attorney General, the nominee’s oners. In his written answers to questions amendment to the intelligence reform legis- judgment about our laws would be of from the committee, prepared in anticipa- lation last fall specifying that ‘‘no prisoner tion of today’s vote on his nomination as at- shall be subject to torture or cruel, inhu- enormous consequence. torney general, Mr. Gonzales was clearer— mane or degrading treatment or punishment This is a different type of Cabinet po- disturbingly so, as it turns out. According to that is prohibited by the Constitution, laws sition than many others. In many Cabi- President Bush’s closest legal adviser, this or treaties of the United States.’’ The Senate net positions, such as the Secretary of administration continues to assert its right adopted the provision unanimously. Later, State, the Secretary of Treasury, and to indefinitely hold foreigners in secret loca- however, it was stripped from the bill at the others, the Cabinet member states the tions without any legal process; to deny request of the White House. In his written President’s position. They state the them access to the International Red Cross; testimony, Mr. Gonzales affirmed that the President’s position and carry out the to transport them to countries where torture provision would have ‘‘provided legal protec- President’s policies. The Attorney Gen- is practiced; and to subject them to treat- tions to foreign prisoners to which they are eral is different. The Attorney General ment that is ‘‘cruel, inhumane or degrad- not now entitled.’’ Senators who supported ing,’’ even though such abuse is banned by an the amendment consequently face a critical is not the Attorney General of the international treaty that the United States question: If they vote to confirm Mr. President; he is the Attorney General has ratified. In effect, Mr. Gonzales has con- Gonzales as the government’s chief legal au- of the United States. This is a position firmed that the Bush administration is vio- thority, will they not be endorsing the sys- where the cabinet member has enor- lating human rights as a matter of policy. tematic use of ‘‘cruel, inhumane and degrad- mous flexibility to carry out deci- Mr. Gonzales stated at his hearing that he ing’’ practices by the United States? sions—to bring prosecution or withhold and Mr. Bush oppose ‘‘torture and abuse.’’ Mr. LEAHY. Mr. President, today we it, to begin an investigation or to with- But his written testimony to the committee are beginning the debate on the nomi- hold an investigation, to determine to makes clear that ‘‘abuse’’ is, in fact, permis- nation of Alberto Gonzales to be Attor- sible—provided that it is practiced by the go into a place where he believes there ney General of the United States. may have been a voting rights viola- Central Intelligence Agency on foreigners When I first heard of this nomination held outside the United States. The Conven- tion or to say there is none. This indi- tion Against Torture, which the United last November, I was hopeful. I saw vidual must be independent of the States ratified in 1994, prohibits not only this nomination as a chance for some President. torture but ‘‘cruel, inhumane or degrading long missing accountability on some of Judge Gonzales has championed poli- treatment.’’ The Senate defined such treat- the most pressing issues facing our Na- cies that are in fundamental conflict ment as abuse that would violate the Fifth, tion. I noted at the time that I like and with decades of laws, sound military Eighth or 14th amendments to the Constitu- respect Judge Gonzales. I met with him practice, international law, and human tion—a standard that the Bush administra- soon after his designation and wrote to rights. He remained silent for almost 2 tion formally accepted in 2003. him, following up on that meeting, to But Mr. Gonzales revealed that during his years about a deeply flawed and legal- tenure as White House counsel, the adminis- inform him in advance of his confirma- istic interpretation of our Nation’s tor- tration twisted this straightforward stand- tion hearing about issues that would be ture statute. He also accepted a pat- ard to make it possible for the CIA to subject raised about several key issues. I lis- ently erroneous interpretation of the detainees to such practices as sensory depri- tened carefully to him during our con- torture convention and apparently be- vation, mock execution and simulated firmation hearing. lieves that the President, when acting drowning. The constitutional amendments, The road he has traveled from being as Commander in Chief, is above the he told the committee, technically do not a 12-year-old boy selling soft drinks at law. apply to foreigners held abroad; therefore, in football games, all the way to the When I asked Judge Gonzales if he the administration’s view the torture treaty State House in Texas and to the White does not bind intelligence interrogators op- agreed with the Bybee memo’s very erating on foreign soil. ‘‘The Department of House, is a tribute to him and to his narrow reading of the law, he replied: Justice has concluded,’’ he wrote, that family. In spite of our disagreements ‘‘I don’t recall today whether or not I ‘‘there is no legal prohibition under the Con- on issues, I have sought to maintain a was in agreement with all of the anal- vention Against Torture on cruel, inhuman cordial personal working relationship ysis, but I don’t have a disagreement

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S697 with the conclusions then reached by legal judgment.’’ Judge Gonzales dem- To reclaim our moral leadership in the Department.’’ This is the memo onstrates a lack of independence from the world, and to become a true mes- which concludes that ‘‘physical pain the President, something that we can- senger of hope instead of a source of re- amounting to torture must be equiva- not have in the chief law enforcement sentment, we need to acknowledge lent in intensity to the pain accom- officer in the nation. He cannot inter- wrongdoing and show accountability panying serious physical injury, such pret our laws to mean whatever the for mistakes that have been made. as organ failure, impairment of bodily President wants them to mean. To do We have seen departures from our function, or even death.’’ Even the Jus- so would deny us the constitutional country’s honorable traditions, prac- tice Department repudiated this legal protections upon which this nation was tices, and established law in the use of memorandum, once it became public. founded. The Attorney General is sup- torture, originating at the top ranks of Under his restrictive redefinition posed to represent all of the American authority and emerging at the bottom. such practices as threatening a pris- people, not just one of them. At the bottom of the chain of com- oner with a firearm in a mock execu- We have seen what happens when the mand, we have seen a few courts mar- tion, ‘‘waterboarding’’ a person to rule of law plays second fiddle to the tial. But at the top, we have seen make him experience the suffocating President’s political agenda. This Ad- medal ceremonies, pats on the backs, effects of drowning, and, as Senator ministration has taken one untenable and promotions. KENNEDY noted, perhaps even cutting legal position after another regarding Between these two dissonant images, off a person’s fingers one joint at a the rule of law in the war against ter- there is a growing accountability gap. time would not amount to ‘‘torture.’’ ror. It will not admit to making mis- The administration’s handling of this But surely we consider these practices takes. It takes action only after mis- confirmation process, which could have torture when done to a member of the takes are made public and become po- helped to narrow the gap, has served to U.S. military or to an American cit- litically indefensible. widen it. Given the Republican Party’s leader- izen. I believe in redemption in public life, How can we, the greatest Nation on ship in Congress, the Federal courts as in spiritual life, but to get to re- Earth, stand up and say such acts are have provided what little check there demption, first there has to be ac- has been on this President’s claim of not torture if committed against for- countability. This administration has a unfettered Executive power. The Con- eign detainees? large and growing accountability def- gress has failed to do any real over- Perhaps most disturbing of all as a icit. Judge Gonzales, who could have legal matter is the nominee’s positing sight of that use of power. Judge Gonzales’s nomination ini- become a part of the solution, remains of the President as above the law. tially seemed like a breath of fresh air. a part of the problem. Nothing is more fundamental about I have noted how much I personally Now more than ever we need an At- our constitutional democracy than our like him. I think most people do. But torney General to serve all Americans. basic notion that no one is above the as I told the nominee when we met There is much that has gone wrong law. Yet at his June 2004 news con- within days of the announcement of his that this administration has stub- ference and again in his testimony be- nomination, these confirmation pro- bornly refused to admit or correct. For fore the Judiciary Committee he indi- ceedings matter. The proceedings mat- this democratic Republic to work, we cated that he views the President to ter because it is the responsibility of need greater openness and account- have the power to override our law and, this Senate to explore Judge Gonzales’s ability. It is with those critical consid- apparently, to immunize others to per- judgment and actions in connection erations in mind that I must vote form what would otherwise be unlawful with the tragic legal and policy against this nomination. acts. This is about as extreme a view of changes formulated in secret by this I believe under the earlier order, the executive power as I have ever heard. I administration and still cloaked from Senator from California is now going believe it is not only dead wrong as a congressional oversight and public to be recognized. constitutional matter but extremely scrutiny. Part of it is the fault of the The PRESIDING OFFICER. Under dangerous. The rule of law applies to Congress which has not conducted vig- the previous order, the Senator from the President, even this President. orous oversight, but a large part of this California is recognized. From the time of George Washington problem is due to an administration Mr. HATCH. Mr. President, reserving to George W. Bush, we have always that has not answered the questions the right to object, and I will not ob- maintained that in our Nation no one asked by both Republicans and Demo- ject. is above the law—not the President, crats. The PRESIDING OFFICER. The not a Senator, not a judge, not anyone America’s troops and citizens are at unanimous consent has already been in our country. greater risk because of those actions agreed to. Ironically, it was the administration and their terrible repercussions Mr. HATCH. I understand. I ask of this President’s father that urged throughout so much of the world. unanimous consent that I immediately the Senate to ratify the torture con- America’s moral standing and leader- follow the Senator from California. vention. It did so to make clear that ship have been undercut. The searing The PRESIDING OFFICER. Without the United States condemns torture photographs of Abu Ghraib have made objection, it is so ordered. and to protect Americans from this it harder to create and maintain the al- Mr. LEAHY. Then, Mr. President, I barbaric practice. But if the U.S. Presi- liances we need to prevail against the ask unanimous consent that following dent does not feel bound by the torture vicious terrorists who threaten us, in- Senator HATCH, Senator SCHUMER be convention, then neither will other for- cluding those who struck America 9 recognized. eign leaders. months into this President’s first term. The PRESIDING OFFICER. Without Ultimately, the Attorney General’s Those abuses at Abu Ghraib have objection, it is so ordered. duty is to uphold the Constitution and served as recruiting posters for the ter- Mr. LEAHY. Mr. President, I under- the rule of law—not to work to cir- rorists. That is why this process mat- stand we are coming back at 2:15 p.m. cumvent it. Both the President and the ters. The confirmation process shows after the caucuses? nation are best served by an Attorney that on the question of judgment, The PRESIDING OFFICER. The Sen- General who gives sound legal advice Judge Gonzales is the wrong man for ator is correct. and takes responsible action, without this job. Mr. LEAHY. I ask unanimous con- regard to political considerations—not After his recent inaugural address, I sent that we lock in 10 minutes at 2:15 one who develops legalistic loopholes praised President Bush for the eloquent p.m. for the Senator from Maryland, to serve the ends of a particular admin- words he said about the United States’ Ms. MIKULSKI. istration. historic support for freedom. But to be The PRESIDING OFFICER. Is there The Attorney General appointed by true to that vision, we need a govern- objection? the President’s father remarked: ment that leads the way in upholding Mr. SPECTER. That will be agree- ‘‘Nothing would be so destructive to human rights, not one that secretly de- able. the rule of law as to permit purely po- velops legalistic rationalizations for The PRESIDING OFFICER. Without litical considerations to overrun sound circumventing human rights. objection, it is so ordered.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S698 CONGRESSIONAL RECORD — SENATE February 1, 2005 Mr. LEAHY. I thank the distin- John Ashcroft served 6 years in the to conduct a search that would have re- guished senior Senator from Pennsyl- Senate. We knew his service on the Ju- freshed his memory. vania, and I yield the floor. diciary Committee. We knew about his Let me quote the multiple times The PRESIDING OFFICER. The Sen- views. One could decide about his per- Judge Gonzales refused to answer Sen- ator from California. sonal views, yes or no. Judge Gonzales ator KENNEDY’s questions, and these Mrs. FEINSTEIN. Mr. President, I has spent so many years serving Presi- are all quotes: thank the ranking member. dent George Bush. If confirmed, this I do not know what notes, memoranda, e- I rise today to explain why I deeply will be the fifth job George Bush ap- mails or other documents others may have regret I cannot vote to confirm Alberto pointed Judge Gonzales to over the about these meetings, nor have I conducted a Gonzales to be the next Attorney Gen- past decade. The hearings were his first search. eral. real opportunity to show his own Point 2: I believe as a general rule the Presi- views. I think this is why the hearing I have no such notes, and I have no present dent is entitled to the Cabinet of his process became so important in many knowledge of such notes, memoranda, e- choice. But one Department, the De- of our views. mail, or other documents and I have not con- partment of Justice, always deserves This was a crucial opportunity for ducted a search. special attention from Congress be- Judge Gonzales. Many of us were pre- Point 3: cause it does not exist solely to extend pared to vote for him. If there is a sin- I have no present knowledge of any non- the President’s policies. gle issue that defines this confirmation public documents that meet that descrip- Though the Attorney General serves process, it is what Judge Gonzales tion. However, I have conducted no search. under the President, he must independ- thinks about torture and brutal inter- Point 4: ently interpret the laws as written by rogation practices. I have no present knowledge that there are Congress and be truly the country’s He reminded us again and again that any documents of the sort requested in the chief law enforcement officer. question, although I have not conducted an I cannot emphasize this enough. The both he and the President condemn torture. But as we know from the independent search for such documents. Department of Justice must be inde- Point 5: pendent from the White House. The Bybee memo of August 2002, for at FBI must be independent. The U.S. at- least 2 years, the Federal Government I have no present knowledge of any such followed a definition of torture that documents or materials, although I have not torneys must be independent. The conducted a search. Criminal Law Division, the Environ- was excessively narrow. In fact, it was Point 6: mental Law Division, the Civil Law Di- considered so incorrect that the De- vision must all be independent. The So- partment of Justice revoked it on the I have no present knowledge of any such eve of Judge Gonzales’ hearing. records, although I have not conducted a licitor General’s Office, which argues search. before the Supreme Court, must be That memo defined torture as: independent. The Office of Legal Coun- Equivalent in intensity to the pain accom- The last formulation he repeated in sel, which is charged with interpreting panying serious physical injury, such as two additional instances. organ failure, impairment of bodily function, These are not adequate answers to the law of the executive branch, must or even death. be independent. The Civil Rights Divi- satisfy the nomination process for the For me, in addition to its clear legal sion must be independent. confirmation of a person to be the next These departments are charged with and moral importance, the issue of tor- Attorney General, nor do they bode nothing less than following, inter- ture became the main way for assess- well for the Judiciary Committee’s and preting, and implementing the law of ing this next Attorney General. And it this Congress’s oversight responsibil- the United States of America. The De- was very important for him to state in ities for the Department of Justice. partment of Justice is in charge of de- unambiguous terms what he thought. Judge Gonzales also refused to pro- fending the Nation in court. It is in It was as important a way for us to as- vide many documents that we re- charge of advising the rest of the Gov- sess how he approaches a problem as quested. In specific, I asked him to pro- ernment about what the law means. It any. vide me with a copy of the final version is in charge of overseeing the inves- In his opening statement, Judge of his January 2002 memo to the Presi- tigations of the FBI, and it is in charge Gonzales offered a clear, absolute con- dent. That is very important because of deciding when to prosecute crimi- demnation of torture. He said flatly: earlier memos that he had written nals and send them to prison. This is Torture and abuse will not be tolerated by were different. It was important, if this obviously a big portfolio. this administration. was his final opinion, that we have an The head of the Department of Jus- At this point, at the beginning of his opportunity to look at it, because that tice is the chief law enforcement offi- testimony, there were no ifs, ands, or opinion was definitive and dispositive. cer of the United States. As such, the buts. But after that, his testimony, The January memo is a well known Attorney General is in charge of 59 sep- both verbal and in writing, was full of one, where he wrote that the war on arate divisions within the Department ambiguities. It seemed intended not to terror ‘‘renders obsolete Geneva’s of Justice, which cover more than make his views clear, but to shield his strict limitations on questioning of 110,000 employees. In my view, before views, and it seemed to narrow the def- enemy prisoners.’’ If that was only a we vote to confirm to put someone in inition of what counts as torture. draft, as he said, as he had emphasized, charge of all this awesome power—and For instance, at the hearing, at one then I believe it is imperative for us to it truly is awesome—it is important for point, Judge Gonzales told Senator see the final version, and he refused me us to know what that individual thinks LEAHY, our ranking member, ‘‘I reject that opportunity. He wouldn’t provide about the major policies the Depart- that opinion,’’ referring to the Bybee the memo, saying the White House had ment will be implementing. And that is opinion. But at another point in the declined to allow it. where I have been disappointed by the hearing, he told the same Senator, Sen- To tell you the truth, because of the confirmation process for Judge ator LEAHY: prior history, that simply is not good Gonzales. I don’t have a disagreement with the con- enough for me. When President Bush nominated clusions then reached by the department. Also of importance in the questions Judge Gonzales, I think many of us Those statements are clearly in con- that he did answer, he seemed to con- were prepared to give him the benefit flict, and leave me with no idea what tinually narrow, again, the definition of the doubt. But the hearings crys- he thinks about the Bybee memo. of torture. I saw this as a retreat from tallized how little we knew about his I also note that Judge Gonzales his original condemnation of torture own policy views, how little we knew clearly did not do everything he might and abuse and I thought it showed that about his qualities for leadership, his have done to try to answer the ques- he was trying more to defend the Presi- policy views, his management style, tions put to him. dent’s policies than to demonstrate his his strength of character, and his per- In his written testimony, especially own views. sonal beliefs in those areas where he to Senator KENNEDY, Judge Gonzales That, in my view, is the nub of the sets the tone and the policy. I think refused to provide the answers or the problem. Here he was no longer the this was a great missed opportunity. documents requested. He even refused President’s man, he was going to be the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S699 chief law enforcement officer, inde- in the U.S. Armed Forces to express Alberto Gonzales will be. I don’t know pendent, head of 110,000 people, with all their deep concern about the nomina- his management style. I don’t know kinds of major departmental respon- tion of Alberto Gonzales and they urge the vision he has for this Department. sibilities—environmental law, civil us in the hearing to detail his views I don’t know the goals he would set. rights law, the Solicitor General, as I concerning the role of the Geneva Con- I know he is an extension of the stated earlier in my remarks. I saw ventions in U.S. detention and interro- President. I know that he can legally this narrowing as a retreat from his gation policy and practice. They go on enable the President. I know he gives original condemnation of torture and to say: the President advice, and I think much abuse, and I thought it showed that he Mr. Gonzales appears to have played a sig- of that advice has brought us into a was trying, again, more to defend the nificant role in shaping U.S. detention oper- terrible place where our military could President than to talk for himself. Let ations. . . . It is clear that these operations well in the future be jeopardized. me give an example. have fostered greater animosity toward the I am one, frankly, who believes the At the hearing he told Senator DUR- United States, undermined our intelligence Military Code of Justice has stood the gathering efforts, and added to the risks fac- BIN that even under the laws imple- U.S. military in good stead. I am one ing our troops around the world. menting the Convention Against Tor- who believes the Geneva Convention— ture: They then talk about the memo the Convention Against Torture—is the Judge Gonzales wrote to the President aliens interrogated by the United States out- right thing. I am one who believes we side the United States enjoy no substantive on January 25, 2002, advising him the should follow those, even in this non- rights under the 5th, 8th, and 14th Amend- Geneva Conventions don’t apply to the state war. ments. conflict then underway in Afghanistan. I want to comment on one other If this is Judge Gonzales’s view, it is They say more broadly that he wrote issue, and then I will yield the floor. a significant gap in the prohibition the war on terrorism presents a new I think Judge Gonzales is going to be confirmed. He is a talented lawyer and against abuse. paradigm that renders obsolete the Ge- I gave him the opportunity to clarify neva protections. has a compelling life story. I certainly this issue. In written testimony he con- Then they go on to say, and I think want to work with him. I want to say one thing about some firmed the thrust of the answer, stat- this is important: who may say this is a qualified His- ing to me: The reasoning Mr. Gonzales advanced in this memo was rejected by many military panic, and indeed he is. Nobody should There is no legal prohibition under the leaders at the time, including Secretary of think that the Hispanic community is Convention Against Torture on cruel, inhu- State Colin Powell who argued that aban- unified on this nomination. I will put man or degrading treatment with respect to doning the Geneva Conventions would put aliens overseas. into the RECORD, if I may, letters from our soldiers at greater risk, would ‘‘reverse the Congressional Hispanic Caucus, In another written question, I asked over a century of U.S. policy and practice in certain editorials from newspapers, the Judge Gonzales to specify his own supporting the Geneva Conventions,’’ and statement of the Mexican-American would ‘‘undermine the protections of the views again on specific harsh interro- Legal Defense and Education Fund, a gation methods. I wrote to him: rule of law for our troops, both in this spe- cific conflict [Afghanistan] and in general.’’ statement of the Mexican-American Putting aside legal interpretations, in your Political Association, a letter from That is a huge problem out there be- own personal opinion, should the United Major General Melvyn Montano, and States use forced nudity, the threatening of cause at best, these hearings and the detainees with dogs, or ‘‘water-boarding’’ other letters. written questions and answers which I ask unanimous consent to have when interrogating detainees? are voluminous are really unable to them printed in the RECORD. That was my question in writing. He clarify any of the positions of Alberto There being no objection, the mate- began his answer by stating: Gonzales, the man, Alberto Gonzales, rial was ordered to be printed in the I feel that the United States should avoid head of one of the largest and most RECORD, as follows: the use of such harsh methods of questioning powerful agencies of the American if possible. ALBUQUERQUE, MN, Government, the U.S. Department of January 25, 2005. I was asking for a statement by the Justice. Hon. MEMBERS OF THE COMMITTEE ON THE JU- man. ‘‘If possible’’ is a major loophole, We look at the Department of Justice DICIARY, and I truthfully don’t know what it one way, but most Americans look at U.S. Senate, Committee on the Judiciary, Dirk- means. I don’t know how big that loop- it as being a major citadel of power in sen Senate Office Building, Washington, hole is intended to be. the United States. And on occasion, we DC. As I was reviewing the correspond- have seen that power exercised. If you DEAR SENATORS: I am writing to urge that you reject the nomination of Alberto ence, I was struck, in particular, by a are going to set the policy, if you are Gonzales for Attorney General. I understand letter that the committee received going to set the tone, if you are going that some Hispanic groups support Judge from a group of 12 esteemed former to be the head of this Department, I Gonzales’ nomination and have urged you to military leaders—generals, admirals, want to know what you as a man, or as confirm him. I write, as a Hispanic and as a even a former chairman of the Joint a woman, think, and particularly at military officer and veteran, to offer a dif- Chiefs of Staff. this time. ferent perspective. This letter was signed by Brigadier Yes, it is clear that the problems we I know what it feels like to be the first Hispanic named to an important leadership General David M. Brahms, Retired, will face in the future are most likely position in this country. I was the first His- U.S. Marine Corps; Brigadier General to be with respect to non-state actors, panic Air National Guard officer appointed James Cullen, Retired, U.S. Army; and with respect to torture, which I am as an adjutant general in the United States. Brigadier General Evelyn P. Foote, Re- speaking about now. Therefore, it is ex- I am a Vietnam veteran and served 45 years tired, U.S. Army; Lieutenant General traordinarily important to know what in the military, including 18 years in a com- Robert Gard, Retired, U.S. Army; Vice this man thinks. If you ask me today, mand position. I welcome the prospect of Admiral Lee F. Gunn, Retired, U.S. despite the hearings, despite 200 pages more Hispanics serving in leadership posi- Navy; Rear Admiral, Retired, U.S. of questions and answers, I cannot real- tions in the government, and I respect Judge Gonzales’ inspiring personal story. But I re- Navy; General Joseph Hoar, Retired, ly tell you. I cannot really be sure that ject the notion that Hispanics should loyally U.S. Marine Corps; Rear Admiral John if the White House says one thing, the support the nomination of a man who sat D. Hutson, Retired, U.S. Navy; Lieu- head of the Department of Justice quietly by while administration officials dis- tenant Claudia Kennedy, Retired, U.S. would be willing to stand up and say cussed using torture against people in Amer- Army; General Merrill McPeak, Re- another. I just do not know, based on ican custody, simply because he is one of our tired, U.S. Air Force; Major General the past jobs he has had and his past own. Melvyn Montano, Retired, U.S. Air performance, if he is prepared to be I was among 12 retired Admirals and Gen- Force National Guard; and General independent. erals, including former Chairman of the Joint Chiefs of Staff, General John John Shalikashvili, former Chairman I have to say to this body that is im- Shalikashvili (Ret. USA). who wrote to you of the Joint Chiefs of Staff. portant. Every one of us knows that urging that you closely examine Judge Let me paraphrase the letter. They Janet Reno was an independent Attor- Gonzales’ role in setting U.S. policy on tor- write as retired military professionals ney General. I do not know that ture during his confirmation hearing.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S700 CONGRESSIONAL RECORD — SENATE February 1, 2005 At that hearing, Judge Gonzales did not leaders at the time, including Secretary of tions, these memos ignored established U.S. allay concerns about his record. To the con- State Colin Powell who argued that aban- military policy, including doctrine prohib- trary, his evasiveness and memory lapses doning the Geneva Conventions would put iting ‘‘threats, insults, or exposure to inhu- raised even more concerns. Judge Gonzales our soldiers at greater risk, would ‘‘reverse mane treatment as a means of or aid to in- continues to maintain he can’t remember over a century of U.S. policy and practice in terrogation.’’ Indeed, the August 1, 2002 Jus- how the infamous torture memo was gen- supporting the Geneva Conventions,’’ and tice Department memo analyzing the law on erated. He has refused to explain the lan- would ‘‘undermine the protections of the interrogation references health care admin- guage in his own memo which implied that rule of law for our troops, both in this spe- istration law more than five times, but never rejecting the applicability of the Geneva cific conflict [Afghanistan] and in general.’’ once cites the U.S. Army Field Manual on in- Conventions would insulate U.S. personnel State Department adviser William H. Taft IV terrogation. The Army Field Manual was the from prosecution for war crimes they might agreed that this decision ‘‘deprives our product of decades of experience—experience ‘‘need’’ to commit. And he asserts that the troops [in Afghanistan] of any claim to the that had shown, among other things that Convention Against Torture’s prohibition on protection of the Conventions in the event such interrogation methods produce unreli- cruel and inhuman treatment doesn’t apply they are captured and weakens the protec- able results and often impede further intel- to aliens overseas. tions afforded by the Conventions to our ligence collection. Discounting the Manual’s In my view, these positions put our service troops in future conflicts.’’ Mr. Gonzales’s wisdom on this central point shows a dis- men and women—already facing enormous recommendation also ran counter to the wis- turbing disregard for the decades of hard- danger—at even greater risk. In my capacity dom of former U.S. prisoners of war. As Sen- won knowledge of the professional American as Major General of the National Guard, I ator John McCain has observed: ‘‘I am cer- military. The United States’ commitment to the Ge- oversaw 4,800 National Guard personnel. tain we all would have been a lot worse off if there had not been the Geneva Conventions neva Conventions—the laws of war—flows When I think about how many of our troops not only from field experience, but also from fighting in Iraq today are drawn from the around which an international consensus formed about some very basic standards of the moral principles on which this country National Guard, it angers me that the dan- was founded, and by which we all continue to ger they face has been increased as a result decency that should apply even amid the cruel excesses of war.’’ be guided. We have learned first hand the of the policies Judge Gonzales has endorsed. value of adhering to the Geneva Conventions I wonder, if Judge Gonzales’ children grow Mr. Gonzales’s reasoning was also on the wrong side of history. Repeatedly in our and practicing what we preach on the inter- up to serve in the military, would he be so national stage. With this in mind, we urge cavalier in dismissing the Geneva Conven- past, the United States has confronted foes that, at the time they emerged, posed you to ask of Mr. Gonzales the following: tions as obsolete? (1) Do you believe the Geneva Conventions Some have cynically suggested that Amer- threats of a scope or nature unlike any we had previously faced. But we have been far apply to all those captured by U.S. authori- icans who question Judge Gonzales’ record ties in Afghanistan and Iraq? more steadfast in the past in keeping faith on these issues do so because they are anti- (2) Do you support affording the Inter- with our national commitment to the rule of Hispanic. I reject this view. My own concerns national Committee of the Red Cross access law. During the Second World War, General about Judge Gonzales’ fitness to serve as At- to all detainees in U.S. custody? Dwight D. Eisenhower explained that the al- torney General grow from a deep respect for (3) What rights under U.S. or international lies adhered to the law of war in their treat- American values and the rule of law. Judge law do suspected members of Al Qaeda, the ment of prisoners because ‘‘the Germans had Gonzales should be evaluated on his record, Taliban, or members of similar organizations some thousands of American and British not his ethnicity. On the basis of that record, have when brought into the care or custody prisoners and I did not want to give Hitler I urge you to reject his nomination. of U.S. military, law enforcement, or intel- the excuse or justification for treating our Sincerely, ligence forces? prisoners more harshly than he already was MELVYN MONTANO, (4) Do you believe that torture or other doing.’’ In Vietnam, U.S. policy required Major General (Ret.), forms of cruel, inhuman and degrading treat- that the Geneva Conventions be observed for Air National Guard. ment—such as dietary manipulation, forced all enemy prisoners of war—both North Viet- nudity, prolonged solitary confinement, or namese regulars and Viet Cong—even though AN OPEN LETTER TO THE SENATE JUDICIARY threats of harm—may lawfully be used by the Viet Cong denied our own prisoners of COMMITTEE U.S. authorities so long as the detainee is an war the same protections. And in the 1991 ‘‘unlawful combatant’’ as you have defined Hon. MEMBERS OF THE SENATE JUDICIARY, Persian Gulf War, the United States afforded it? U.S. Senate, Committee on the Judiciary, Dirk- Geneva Convention protections to more than (5) Do you believe that CIA and other gov- sen Senate Office Building, Washington, 86,000 Iraqi prisoners of war held in U.S. cus- ernment intelligence agencies are bound by DC. tody. The threats we face today—while grave the same laws and restrictions that con- DEAR SENATOR: We, the undersigned, are and complex—no more warrant abandoning strain the operations of the U.S. Armed retired professional military leaders of the these basic principles than did the threats of Forces engaged in detention and interroga- U.S. Armed Forces. We write to express our enemies past. tion operations abroad? deep concern about the nomination of Perhaps most troubling of all, the White Signed, Alberto R. Gonzales to be Attorney General, House decision to depart from the Geneva Brigadier General David M. Brahms (Ret. and to urge you to explore in detail his views Conventions in Afghanistan went hand in USMC). concerning the role of the Geneva Conven- hand with the decision to relax the defini- Brigadier General James Cullen (Ret. tions in U.S. detention and interrogation tion of torture and to alter interrogation USA). policy and practice. doctrine accordingIy. Mr. Gonzales’s Janu- Brigadier General Evelyn P. Foote (Ret. During his tenure as White House Counsel, ary 2002 memo itself warned that the deci- USA). Mr. Gonzales appears to have played a sig- sion not to apply Geneva Convention stand- Lieutenant General Robert Gard (Ret. nificant role in shaping U.S. detention and ards ‘‘could undermine U.S. military culture USA). Vice Admiral Lee F. Gunn (Ret. USN). interrogation operations in Afghanistan, which emphasizes maintaining the highest Admiral Don Guter (Ret. USN). Iraq, Guantanamo Bay, and elsewhere. standards of conduct in combat, and could General Joseph Hoar (Ret. USMC). Today, it is clear that these operations have introduce an element of uncertainty in the Rear Admiral John D. Hutson (Ret. USN). fostered greater animosity toward the status of adversaries.’’ Yet Mr. Gonzales Lieutenant General Claudia Kennedy (Ret. United States, undermined our intelligence then made that very recommendation with USA). gathering efforts, and added to the risks fac- reference to Afghanistan, a policy later ex- General Merrill McPeak (Ret. USAF). ing our troops serving around the world. Be- tended piece by piece to Iraq. Sadly, the un- Major General Melvyn Montano (Ret. fore Mr. Gonzales assumes the position of certainty Mr. Gonzales warned about came USAF Nat. Guard). Attorney General, it is critical to under- to fruition. As James R. Schlesinger’s panel General John Shalikashvili (Ret. USA). stand whether he intends to adhere to the reviewing Defense Department detention op- RESOLUTION OPPOSING THE APPOINTMENT OF positions he adopted as White House Coun- erations concluded earlier this year, these ALBERTO GONZALES TO BE ATTORNEY GEN- sel, or chart a revised course more consistent changes in doctrine have led to uncertainty ERAL OF THE UNITED STATES BY THE MEXI- with fulfilling our nation’s complex security and confusion in the field, contributing to CAN AMERICAN BAR ASSOCIATION OF VEN- interests, and maintaining a military that the abuses of detainees at Abu Ghraib and TURA COUNTY operates within the rule of law. elsewhere, and undermining the mission and Whereas, the Mexican American Bar Asso- Among his past actions that concern us morale of our troops. ciation of Ventura County was formed in 1980 most, Mr. Gonzales wrote to the President The full extent of Mr. Gonzales’s role in and is composed of attorney members and on January 25, 2002, advising him that the endorsing or implementing the interrogation auxiliary members who for the past 25 years Geneva Conventions did not apply to the practices the world has now seen remains un- have promoted access to justice for all, re- conflict then underway in Afghanistan. More clear. A series of memos that were prepared spect for the rule of law, equal protection broadly, he wrote that the ‘‘war on ter- at his direction in 2002 recommended official and due process of law. rorism’’ presents a ‘‘new paradigm [that] authorization of harsh interrogation meth- Whereas, under other circumstances, the renders obsolete Geneva’s’’ protections. ods, including waterboarding, feigned suffo- Mexican American Bar Association of Ven- The reasoning Mr. Gonzales advanced in cation, and sleep deprivation. As with the tura County would have been proud to en- this memo was rejected by many military recommendations on the Geneva Conven- dorse and applaud the nomination of a fellow

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S701 Mexican American attorney to the highest of the United States Senate to vote against Penalty cases and his association with law enforcement position in our country; and the confirmation of Mr. Gonzales based upon memoranda setting aside the application of so it is with sadness and regret, that our or- his demonstrated poor judgment in legal international war conventions as applied to ganization finds itself in strong opposition to matters and his lack of commitment to the enemy combatants raises concerns about the nomination of Mr. Alberto Gonzales, rule of law and the Constitution of the whether he may set aside constitutionally White House Counsel for United States At- United States of America. guaranteed due process protections in var- torney General. ious domestic circumstances. Whereas, Alberto Gonzales, has rendered MALDEF STATEMENT ON THE LIKELY CON- Third, the federal government has sole au- opinions proposing that the United States of FIRMATION OF WHITE HOUSE COUNSEL thority and responsibility to uphold our na- America and our sitting president George W. ALBERTO GONZALES TO THE POSITION OF tion’s immigration policies while working to Bush, can disregard the Geneva Convention; UNITED STATES ATTORNEY GENERAL keep our homeland safe and secure. MALDEF is concerned that Judge Gonzales, to wit, Mr. Gonzales advised the President in MALDEF, the nation’s premier Latino a January 2002 memorandum that the Gene- as Attorney General, may delegate such im- civil rights organization, released a state- portant federal civil and criminal immigra- va Convention did not apply to detainees at ment today regarding the likely confirma- Guantanamo Bay, Cuba. This opinion has tion authority to state and local law enforce- tion of White House Counsel Alberto ment already overburdened with responsibil- been roundly criticized and been condemned Gonzales to the Cabinet post of Attorney in our country and around the world, includ- ities to protect and serve at the local level General. Below is the statement released without the appropriate due process protec- ing by members of the State and Defense De- today by Ann Marie Tallman, MALDEF partments, as well as U.S. Military lawyers, tions that must remain guaranteed at the President and General Counsel. federal level. fearing that this policy would undermine re- ‘‘The United States Attorney General up- spect for U.S. Law and International law, ex- We acknowledge that Judge Gonzales is holds the laws that define the very democ- likely to be Confirmed as the next Attorney posing the United States’ own military serv- racy of our Nation. The Attorney General en- General of the United States and the first ice members to torture and abuse. forces all federal criminal and civil laws. The Whereas, it is now well known that at var- Latino to hold this important post. office holder has the responsibility to deter- ious military detention centers at Guanta- MALDEF stands ready to work with Judge mine how to use Federal resources to pros- namo Bay, Cuba, in Afghanistan, in Iraq, in- Gonzales as he carries out his duties and ecute violations of individual civil liberties cluding Abu Ghraib prison, detainees were continues his public service. However, be- and civil rights—such protective laws have subjected to cruel, humiliating, degrading cause of our specific concerns regarding ap- profound impact on the daily lives of Amer- treatment and torture, leading to the injury parent primacy of executive authority; a po- ican citizens and those living in the United tential conflict of interest in the transition and even death of detainees, by U.S. Military States. Finally, the Attorney General has from Counsel to the President to Attorney officers and civilian contractors operating the authority to appoint a special counsel to General in enforcing the special counsel law; under the auspices of the United States De- investigate and, if appropriate, prosecute setting aside due process protections; and, partment of Defense. Whereas, Mr. Gonzales authored memos matters when the Attorney General con- uncertainty about whether inherent author- that condoned the Use of Torture, by relax- cludes that extraordinary circumstances ity exists at the state and local level to en- ing the definition of torture, describing the exist such that the public interest would be force federal immigration policy, MALDEF prohibition contained in the Geneva Conven- best served by removing the matter from the cannot support his confirmation. tion as ‘‘quaint’’ and ‘‘obsolete’’, permitting Justice Department. CONGRESS OF THE UNITED STATES, and thereby causing our nation to be shamed MALDEF acknowledges that Judge Washington, DC, January 26, 2005. and disrespected, and these ‘‘opinions’’ have Alberto Gonzales can fulfill his duties as At- Hon. PATRICK J. LEAHY, contributed to the our country’s loss of the torney General as defined by the United Ranking Member, Senate Judiciary Committee, good will and the respect of a significant seg- States Constitution, the U.S. Code and var- Dirksen Senate Building, U.S. Senate, ment of the people and countries of the ious federal Statutes. Judge Gonzales’ per- Washington, DC. world. sonal history is compelling. He has overcome DEAR SENATOR LEAHY, As the Senate con- Whereas, Mr. Gonzales, advised the Presi- significant obstacles to achieve his success. siders the nomination of Alberto Gonzales to dent that he was empowered to order the de- His past professional experience speaks to be the next Attorney General of the United tention of anyone, citizen or non-citizen for his capabilities. MALDEF remains encour- States, we, on behalf of the Congressional indefinite periods of time, without charges aged that President Bush would make an his- Hispanic Caucus (CHC), wish to inform you being presented, without access to counsel or toric appointment of such a diligent indi- that the CHC has not endorsed Mr. Gonzales. to an impartial tribunal, thus violating the vidual. MALDEF acknowledges Judge Gonzales’ Since its inception almost three decades most sacred requirements of due process of ago, the CHC has served to advance the in- law enshrined in the U.S. Constitution. This adherence to precedent in the area of indi- vidual privacy rights as defined by the con- terests of the Hispanic community, which in- position was later rejected by the U.S. Su- cludes promoting the advancement of preme Court in the case of Rasul vs. Bush, in stitutional right to privacy. We also recog- nize his perspectives on diversity and equal Latinos into high levels of public office. We July of 2004, upholding the principle that no have taken this responsibility seriously, and one is beyond the reach of the law and judi- opportunity in higher education and employ- ment. have accordingly developed a process to cial scrutiny. evaluate candidates for positions in the exec- MALDEF is America’s premier Latino civil Whereas, it is documented that Mr. utive branch of the federal government. Such rights Organization, and from this unique Alberto Gonzales, as Counsel to Governor a process is critical to determining which position, we have serious questions and con- George W. Bush of Texas, also failed to pro- candidates seek to hold office to serve the cerns about Judge Gonzales’ record in three vide Governor Bush with adequate informa- public interest rather than to promote their important areas of the law. First, Judge tion to properly review clemency requests by own personal interest. Our process has en- Gonzales’ public statements and past record prisoners on death row, that might have abled us to endorse many exceptional His- demonstrate support and deference to our compelled commutation of the death penalty panic candidates. During the past four years, Federal Government’s Executive branch. It or further judicial review, and thus failed in the CHC has proudly endorsed many judicial will be imperative for the Attorney General his duty to act as competent counsel to his and executive branch nominees selected by client and to the People of the State of to question and challenge unilateral exercise President George W. Bush. Texas. of executive authority when matters of con- One simple step in our process is a meeting Whereas, Mr. Alberto Gonzales by his ac- stitutional concern and violations of our fed- with the nominee. Upon hearing of Mr. tions and legal opinions rendered throughout eral laws demand that the Attorney General Gonzales’ nomination for Attorney General, his career in public positions and in his cur- protect individual civil liberties or civil we invited him to meet with the CHC to pro- rent position as White House Counsel, has rights. In addition, there remains a concern vide him with the opportunity to meet our violated his obligation to support the stated about Judge Gonzales’ unique position and Members, discuss issues important to the mission of lawyers in the United States and transition—from Counsel to the President of Latino community, and to seek our endorse- specifically the mission of the State Bar of the United States to the United States At- ment. We were informed that he wanted our Texas, his home state, which is to ‘‘support torney General—and his ability to determine support and for the past two months, we the administration of the legal system, as- when to appoint a special counsel. There is a made every attempt to accommodate his sure to all the equal access to justice, foster question whether Judge Gonzales can fairly schedule. However, Mr. Gonzales ultimately high standards of ethical conduct for law- and independently determine in a matter he chose not to avail himself of the courtesies yers, ‘‘and educate the public about the rule previously gave advice to the President as we extended to him. We were last advised of law,’’ be it therefore the President’s attorney, if a special counsel that Mr. Gonzales was simply too occupied Resolved, That the Mexican American Bar should be appointed. A possible inherent con- with responding to written questions from Association of Ventura County strongly op- flict of interest based upon his on-going at- the Senate Judiciary Committee and that we poses the confirmation of Alberto Gonzales torney-client duties to the President may would instead have to wait to until after he to the position of United States Attorney impede his ability to be independent. was confirmed as Attorney General before General, and furthermore, strongly urges Second, due process under the law is an im- being granted a meeting. California’s Senators Diane Feinstein and portant Constitutional protection. Judge Let us be clear, our concern is not about Barbara Boxer, as well as all other members Gonzales’s past record in the Texas Death whether the CHC is granted a meeting—it is

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S702 CONGRESSIONAL RECORD — SENATE February 1, 2005 about Mr. Gonzales’ unwillingness to discuss of the United States. That is very sig- awards from Harvard and Rice Univer- important issues facing the Latino commu- nificant. He will be eighth in line of sities, the United Way, the United nity. His answers to these questions would succession to the Presidency. States-Mexico Chamber of Commerce, give our community the information needed In 1988, President Ronald Reagan ap- the League of United Latin American to form an informed opinion of his nomina- pointed the first Hispanic Cabinet citizens, just to name a few. He has tion. With so little time left before a Senate vote on Mr. Gonzales’ nomination, the member, Secretary of Education Lauro been a pillar of every community in Latino community continues to lack clear F. Cavazos. Two years later, President which he has lived. information about how the nominee, as At- George Herbert Walker Bush continued Despite these incredible personal torney General, would influence policies on to make history by appointing the first achievements, Judge Gonzales remains such important topics as the Voting Rights woman and first Hispanic Surgeon Gen- one of the most unassuming, humble, Act, affirmative action, protections for per- eral of the United States, Antonia C. and decent individuals I have ever had sons with limited English proficiency, due Novello. Dr. Novello used to work with the privilege of meeting, let alone process rights of immigrants, and the role of me as a fellow before she succeeded Dr. work with in government. I know first- local police in enforcing federal immigration Koop as Surgeon General of the United hand that he is well qualified to be At- laws. torney General of the United States, We are disappointed and surprised that Mr. States. Gonzales has refused to meet with the CHC Just last week, the Senate confirmed and I commend the President of the during the confirmation process. Much has President Bush’s nomination of Carlos United States on his choice of such an been said about the historic nature of Mr. Gutierrez as Secretary of Commerce. outstanding individual. Gonzales’ nomination, as the first Hispanic And today, President George W. Bush I am not the only person to think to serve as U.S. Attorney General. However, sets yet another first. As Chairman of this. Judge Gonzales has the support of the historic nature of this nomination is ren- the Republican Senatorial Hispanic the National Council of La Raza, one of dered meaningless for the Hispanic commu- Task Force, I am well aware of the sig- the largest Hispanic organizations in nity when the nominee declines an oppor- the country. He has the support of the tunity to meet with the group of Hispanic nificance of this appointment and this moment in our Nation’s history. Every Hispanic National Bar Association, the Members of Congress who have worked for so Latino Coalition, the League of United many years to open the door of opportunity Hispanic American in this country is Latin American Citizens, the National to fellow Hispanics. If he is not willing to watching how this man is being treated Association of Latino Leaders, Con- meet with the CHC, how responsive can we today and throughout this debate as we gressional Hispanic Conference, the expect him to be to the needs of the Hispanic discuss the nomination. This nomina- community? United States Hispanic Chamber of We provide you this information as the tion is just that important. I know Judge Gonzales’s life story. It Commerce, the Hispanic Alliance for reason for our lack of endorsement of Mr. Progress Institute, the National Asso- has been laid out many times in the Gonzales. ciation of Latino Elected and Ap- media and was described during the Sincerely, pointed Officials, the National Associa- GRACE FLORES confirmation hearing. This is a story tion of Hispanic Publishers, Minority NAPOLITANO, that bears repeating in the Senate. He Business Roundtable, the Texas Asso- Chair, Congressional is an American success story. He shows ciation of Mexican American Chamber Hispanic Caucus. that no matter where anyone comes of Commerce, the Congress of Racial ROBERT MENENDEZ, from, in America, there is no limit on Chair, CHC Nomina- Equality, the Jewish Institute for Na- how far they can go. tions Task Force. tional Security Affairs, the Fraternal As many Americans know, Judge CHARLES A. GONZALEZ, Order of Police, the National District Gonzales was the second of eight chil- Chair, CHC Civil Attorneys Association, the FBI Agents dren. His father and two uncles built a Rights Task Force. Association, the Recording Industry small two-bedroom home with no run- Mrs. FEINSTEIN. Mr. President, in Association of America—just to men- ning hot water in Humble, TX, where summary, I very much regret this, but tion a few. Anyone who says he does all 10 members of this family lived, a I think the U.S. Department of Justice not have the vast majority support of truly humble family. His parents had is a unique Department. I think who- all Hispanics in this country and most no more than a few years of elemen- ever is the head of it has to stand on all other people who understand de- his own two feet, has to be totally tary school education, and his father cency and honor just do not know what independent of Congress, of the White was a migrant worker. Growing up in a they are talking about. House, and has to be willing to submit working poor household, his family He has garnered support from both to rigorous oversight by the Senate, by never even had a telephone. Democrats and Republicans. The the Judiciary Committee, and has to In a story familiar to many whose former Secretary of Housing and Urban set a tone which enables the Depart- parents and grandparents were immi- Development, under President Clinton, ment of Justice to function as a fair grants, his parents knew the impor- Henry Cisneros, wrote an article in the and independent voice of the American tance of an education for their son. Wall Street Journal in January prais- people, as its chief law enforcement of- After serving honorably in the U.S. Air ing Judge Gonzales, and Senator KEN ficer. Force, Judge Gonzales became the first SALAZAR, the newly elected Democrat I very much regret that I will vote no person in his family to go to college. from Colorado, testified in favor of on this nomination. He attended the Air Force Academy Judge Gonzales in our Judiciary Com- I thank the Chair. I yield the floor. and graduated from Rice University mittee. I commend Senator SALAZAR The PRESIDING OFFICER (Mr. and Harvard Law School. Since then, for sharing his opinion of the nominee. BURR). The Senator from Utah. Judge Gonzales has worked at one of Judge Gonzales is also supported by Mr. HATCH. Mr. President, I have the finest law firms in Texas and this the former Solicitor General of the heard the remarks of my distinguished country, Vincent & Elkins, he served United States of America, Ted Olson, colleagues, and I want to say I have for 3 years as the general counsel for as well as members of the Heritage some grave disagreements with some of the Governor of Texas, served as sec- Foundation, the conservative institu- the things that have been said. retary of state for the State of Texas, tion in Washington. The philosophical, I rise in support of the President’s served as a justice on the Texas Su- religious, and ethnic diversity of this nomination of Alberto Gonzales to be preme Court, and became as we all support speaks volumes of his quali- the next Attorney General of the know, White House Counsel for Presi- fications. United States. dent Bush. Let me take a few minutes to read We all know who Judge Gonzales is. Yet his resume tells only part of the from some of these letters. Janet Today is a remarkable day in our coun- story. His accomplishments include Murguia, president and CEO of the Na- try’s history and a momentous day for many professional and civic honors. He tional Council of La Raza, the largest the American Hispanic community. was voted the Latino Lawyer of the constituency-based Hispanic organiza- Today, we are considering the nomi- Year by the Hispanic National Bar As- tion, has given a strong recommenda- nation of Judge Alberto Gonzales who, sociation. He was inducted into the tion of Judge Gonzales. when confirmed, will become the first Hispanic Scholarship Fund Alumni Not only is Judge Gonzales a compelling Hispanic-American Attorney General Hall of Fame. He has received various American success story, it is also clear that

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S703 few candidates for this post have been as like that in the case of people who are ciation comes from remembrances of his own well qualified. He has served as Texas’ sec- not worthy. family’s struggle. In the Commencement Ad- retary of state, as a member of the Texas Su- The National District Attorneys As- dress at his alma mater, Rice University, preme Court, and as White House counsel, sociation also expressed strong support earlier this year, he recalled: ‘‘During my and has been deeply involved in his commu- years in high school, I never once asked my nity throughout his life. for Judge Gonzales in a letter dated friends over to our home. You see, even We are encouraged that in response to December 17, 2004. This is a bipartisan though my father poured his heart into that questioning, Judge Gonzales agreed to re- association of all the national district house, I was embarrassed that 10 of us lived view the Administration’s positions on sen- attorneys of the country: in a cramped space with no hot running tencing reform and articulated some reserva- During Judge Gonzales’ tenure as Counsel water or telephone.’’ tions about the practice of ‘‘deputizing’’ to the President our leaders have had fre- As an aside, I understand that. We local police to enforce immigration laws. quent opportunities to meet with him and to had a humble home like that. We did If confirmed, Gonzales would be the first discuss with him issues challenging our pub- Hispanic attorney general and the first not have indoor facilities at first. I lic safety. Through these meetings we have knew what it was like to not be Latino to serve in one of the four major cabi- come to recognize both his commitment to net posts—Secretary of State, Treasury, De- protecting the American public and to ensur- ashamed of my home but not wanting fense, and Attorney General. ing closer working relationship between fed- to bring people there. I understand While we have had our policy differences eral, state and local law enforcement organi- Judge Gonzales. I was there, too. with the Bush Administration, we are con- zations. I will continue on with Henry fident that Judge Gonzales is someone who With the increasingly complex challenges will serve his country with distinction and Cisneros’s comment. Remember, he facing us in our fights against both orga- who will also be accessible and responsive to was a Cabinet member in the Clinton nized gangs and terrorists he brings the the concerns of the Hispanic community. We administration, and he strongly sup- skills and legal acumen necessary for this urge the Senate Judiciary Committee and ports Judge Gonzales. This is what Mr. position of responsibility. We are confident the U.S. Senate to confirm him as soon as that his confirmation will enhance the safe- Cisneros said: possible. ty of our citizens from threats, domestic and On another occasion, [Judge Gonzales] She speaks for the vast majority of international, while safeguarding those lib- said: ‘‘ . . . my father did not have many op- Hispanics in America. erties that we all treasure. portunities because he had only two years of Similarly, the Latino Coalition As leaders for the only national organiza- formal schooling, and so my memories are of strongly supports Judge Gonzales. In a tion representing the local prosecutors of a man who had to work six days a week to press release dated November 11, 2004, this nation we have the utmost confidence in support his family. . . .He worked harder than any person I have ever known.’’ it states: his ability to master this most challenging position and pledge to do everything within Judge Gonzales is the perfect choice for That is what Judge Gonzales said. our ability to ensure that the working rela- the next U.S. Attorney General. The Judge Mr. President, this is the person who tionship between the Department of Justice has been an instrumental part of the legal ef- my Democratic colleagues are trying and America’s prosecutors grows even forts to boost the war on terrorism and keep to defeat—a man who has bipartisan stronger. America safe and secure, while upholding the support throughout the country, and highest standards in government ethics. Finally, let me read excerpts from a big-time support; a man who represents Judge Gonzales brings to the Office of the Wall Street Journal article written by the American dream to so many of us; U.S. Attorney General a distinguished legal Henry Cisneros, who was the Secretary the man who deserves to be the next record based on his many years of work in of Housing and Urban Development in the public and private sector. He also brings Attorney General. But to listen to the Clinton administration and was the these comments by our colleagues—and a unique perspective and human experience mayor of San Antonio for 8 years. This understood only by those whose families I think over the next couple days to have migrated to a foreign land with little is what Mr. Cisneros had to say: listen to them—they act as if some- resources and not knowing the language. It The last four years have posed harrowingly body has to be perfect to be a Cabinet is for this cultural depth and his unique legal difficult dilemmas, especially those related member in any administration. But qualifications that we urge the Senate Judi- to the 9/11 terrorist attack on our nation and certainly in the Bush administration, the military and security actions that re- ciary Committee and all members of the U.S. they must be perfect. Not only do they Senate to put partisan politics aside so that sulted from it. There have been successes Hispanics are no longer denied representa- and failures, there have been good judgments say that, but you will find there are tion in this important post. . . . We have and misjudgments—all in the context of war, many distortions of his record. They been honored to work with the Judge for that is, a context of military organizations take things out of context and blow many years now, and have personally wit- under stress, of imperfect information, of them out of proportion. nessed his ability to unite people of all dif- life-and-death concerns. The American peo- I worked closely with Judge Gonzales ferent backgrounds to get things done. He is ple decided in November, for better or for during President Bush’s first term, and an extremely qualified and intelligent attor- worse, to see this conflict through. It would I have found him to be a man of his ney who will serve with distinction and be unseemly at this juncture to use the word. Unfortunately, in a misguided make every Latino proud. We endorse his forum of a Senate confirmation process to nomination without any reservations. try to find a scapegoat for a war that is at a attempt to bring this fine individual down, some people, somehow, blame He will make every Latino proud. He very difficult stage. In any event, Alberto Judge Gonzales for the abuses that has up to this time everywhere he has Gonzales has done nothing to alter the basic facts that he is a seasoned legal professional, have occurred at Abu Ghraib. As many been. He has set a good example and is needed by the president, and is a person of Americans, I, too, am concerned about has done what is right in his govern- sterling character. the alleged abuses of detainees appre- ment work. Mr. Cisneros goes on to say: hended in the war on terror. When I The FBI Agents Association wrote to saw the pictures in the media of de- the committee last December: As an American of Latino heritage, I also want to convey the immense sense of pride tainees at Abu Ghraib, I was simply We write to express the support of the FBI that Latinos across the nation feel because Agents Association for the nomination of disgusted. I think all decent Americans of Judge Gonzales’s nomination. I had the were disgusted. They understand the Judge Alberto Gonzales for Attorney General high honor of serving in a president’s cabi- of the United States. . . . We believe Judge abuses that occurred there were repug- net, as have five other American Hispanics, nant and inconsistent with our re- Gonzales’ practical life experiences, his legal but we all served in what might be called training and education, his judicial expertise ‘‘outer circle departments.’’ The historic newed commitment to promoting lib- and his close proximity to and involvement character of this nomination is that Judge erty and democracy. There is abso- with many of the most difficult jurispru- Gonzales has been nominated to one of the lutely no debate about that. dence issues associated with the ongoing war big four—State, Defense, Treasury, and Jus- In addition, there are more allega- against terror make him a nominee fully tice. This is a major breakthrough for tions in the media recently about indi- worthy of confirmation by the U.S. Senate. Latinos, especially since it is so important viduals being subjected to water-board- We are also confident that Judge Gonzales’ to have a person who understands the frame- experience in and firm appreciation of the ing, or suffering from cigarette burns, work of legal rights for all Americans as at- and other acts of physical intimidation issues in today’s national criminal justice torney general. system will serve him and the nation well as Judge Gonzales has demonstrated a that must be taken seriously as well. I the next Attorney General. nuanced understanding of the struggles peo- take these allegations very seriously— I can guarantee the FBI Agents Asso- ple face as they try to build a life for their very seriously. Regardless of what the ciation does not send recommendations families in our country. Perhaps that appre- precise legal definition of ‘‘torture’’ is,

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S704 CONGRESSIONAL RECORD — SENATE February 1, 2005 when you see or hear about acts of affirmed Congress’s view that torture And when these abuses occurred, physical abuse of prisoners, even in a of prisoners of war and detainees is il- Judge Gonzales was not the Secretary time of war, it is very disturbing. legal and does not reflect the policies of Defense. It was not his responsibility It should be obvious enough that it of the U.S. Government or the values to tell soldiers which specific interro- does not need to be said, but I condemn of the people of the United States. gation tactics to use. the torturous acts that occurred at In December, the Consolidated Ap- In fact, it was not even his responsi- Abu Ghraib. The President condemns propriations Act for Fiscal Year 2005 bility to provide legal advice to the torture. My colleagues on both sides of became law. This law includes a prohi- Secretary of Defense on torture or any the aisle condemn torture. Make no bition on the use of funds by the Jus- other subject. Providing legal advice to mistake about it, Judge Gonzales con- tice Department to ‘‘be used in any executive branch departments and demns torture. Judge Gonzales must way to support or justify the use of tor- agencies is the role of the Department have said that dozens of times before ture by any official or contract em- of Justice. His primary role was to pro- and after his hearing, both orally and ployee of the United States Govern- vide legal advice to the President of ment.’’ in writing. He opposes torture, period. the United States and other White In addition, at least five committees He could not have been clearer on this House officials. issue. To have his record distorted is have held hearings on Abu Ghraib in the 108th Congress. Since May, the Now if Judge Gonzales is confirmed, hitting below the belt. it will become his responsibility to be- There are many Americans who be- Armed Services Committees of both come the Nation’s principal law en- lieve someone in the Government Houses took testimony from numerous forcement official and help see that should be held responsible for these Defense Department officials. Sec- each American receives equal justice abuses. I agree. All of the individuals retary Rumsfeld himself testified four responsible for those atrocious acts times. Other witnesses include GEN under the law. should be punished. And they are being Richard Myers, Chairman of the Joint But it is inappropriate and unfair to punished. The military immediately Chiefs of Staff; Acting Secretary of the blame Judge Gonzales for legal advice investigated. They have immediately Army, Les Brownlee; U.S. Army Chief given by somebody else in the Depart- prosecuted. Some of them have been of Staff, GEN Peter Schoomaker; and ment of Justice years before he was sentenced, and the others will be. Central Command Deputy Commander, even nominated to work in the White There is no question about it; they LTG Lance Smith. House. should be punished. However, these The committees Interviewed General For example, some opponents of convictions do not get as much atten- Taguba, the author of the Taguba Re- Judge Gonzales have gone on at length tion from the press as the photos them- port, which investigated the photos of about the so-called Bybee memo. Be- selves. abuse at Abu Ghraib. They held hear- fore I get into the specifics of this The fact is, the convictions do not ings and heard testimony from general memo, let me bring you back to the provide the political ammunition for officers who conducted a formal inves- months following September 11, 2001. those who oppose the President and tigation into the allegations of abuse, All of us here remember exactly where this administration. known as the Fay investigation and we were when the planes crashed into Nonetheless, just earlier this month, from James Schlesinger and Harold the World Trade Center towers and the Charles Graner was convicted for his Brown, who were appointed by the Sec- Pentagon and in Pennsylvania that role in detainee abuse. He was sen- retary of Defense to head the Inde- morning. None of us will forget the tenced to 10 years of imprisonment. He pendent Panel to Review DOD Deten- feelings of vulnerability we all felt in also received a military demotion and tion Operations—otherwise known as the days, weeks and months following was dishonorably discharged, as he the Schlesinger Report. The Senate the attack. should have been. also interviewed the Army Inspector President Bush has rightly made pre- He is not the only person who has General about his investigation, and venting another terrorist attack on been convicted. The military has dis- interviewed Stephen Cambone, Under- U.S. soil his No. 1 priority. I know that ciplined four members of a special op- secretary of Defense for Intelligence. my fellow citizens in Utah share the erations unit for abusing detainees in The Senate Armed Services Committee President’s priorities when it comes to Iraq, including at least one case of the took testimony from Central Command fighting terrorism. In fact, the first use of a Taser stun gun. It has also sub- Commander General John Abizaid, major international event that took jected two individuals to administra- Lieutenant General Ricardo Sanchez, place after 9/11 was held in Salt Lake tive punishments and four others to who commanded the Multi-national City when my community hosted the nonjudicial punishments. The Depart- Force-Iraq; Major General Geoffrey winter Olympic games. ment of Defense has completed eight Miller, Deputy Commander for De- Here in the Senate, a mere month investigations and has three additional tainee Operations in Iraq, and Colonel after the attack, we were terrorized by ongoing investigations. Marc Warren, Army Judge Advocate a letter sent to Senator Daschle’s of- Lest we forget, the scandal of Abu General. Ghraib was the subject of an internal Despite all this, there are some peo- fice containing anthrax. The distin- Government investigation well before ple who believe that not enough has guished ranking member of the Judici- the media broke the story. I am sure been done. And I respect their views. ary Committee was mistreated and that as time goes on, there will be But it seems that now, a small but threatened. Staffers, workmen, and more investigations and more prosecu- vocal group of those individuals have visitors stood in line all day to be tions of these people who acted as non- attempted to create an almost mob screened for anthrax, and hundreds of Americans, as far as I am concerned. In mentality—looking for any high level individuals took strong antibiotics as a the global war against terrorism, official in the Bush administration to preventative measure. I recall that American soldiers and employees must take the blame. And Judge Gonzales time period where every day you would conduct themselves honorably, and we has become the favorite scapegoat for wake up wondering whether something will insist they do so—and so has Judge some. People who cannot even bring terrible was going to happen that day. Gonzales insisted that they do so. themselves to speak optimistically The Bush administration, too, was Congress takes this oversight role about our prospects in Iraq in the days facing difficult questions. We all very seriously. I was a cosponsor to S. before and now after the day of the his- thought that another terrorist attack Res. 356, which we passed last May, toric election itself, surely have no could come at any moment, and it condemning the abuse of Iraqi pris- qualms about creating a scapegoat out would be incredibly difficult to predict oners at Abu Ghraib prison, urging a of Judge Gonzales. This man—a com- when or where such an attack would full and complete investigation to en- mitted public servant, a veteran of our occur because our enemy acted in a sure justice is served, and expressing Armed Forces—deserves better. clandestine manner. They dressed as support for all Americans serving Let us not lose focus here. Judge civilians, not as soldiers. They did not nobly in Iraq. Gonzales has been nominated to be the attack our military but tens of thou- In August, the Defense Department Attorney General—not the Secretary sands of innocent civilians, urban cen- Appropriations Act became law. It re- of Defense. ters, and government buildings. These

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S705 individuals did not come from one spe- Gonzales responsible for a memo- Mr. SPECTER. Mr. President, will cific country. They were a fanatic, ide- randum he did not write and that came the Senator from Utah be willing to ological enemy with international from the Justice Department which he await the completion of the remarks of reach. They could be anywhere. And did not direct. Senator MIKULSKI for 10 minutes at 2:15 they had the money to finance their The Bybee memo asks an important and Senator SCHUMER at 2:15 and then terrorist activities. question: What is torture? This is a he will resume his remarks? It was during these early months critical question to ask in the middle Mr. HATCH. Following Senator MI- that the administration explored what of a war on terror in which our enemies KULSKI? its options were and how they should have made it clear that they will not Mr. LEAHY. If the Senator will with- act in confronting this unique enemy, observe the Geneva Conventions or any hold, how much longer does the Sen- one that fought not in uniforms on bat- other rule of civilized conduct. Judge ator from Utah have? tlefields, not for a particular nation Gonzales received the Bybee memo, but Mr. HATCH. I have a little bit more. but in blue jeans and American civies. some of my friends across the aisle are It could be as long as a half hour. Some are claiming that the President almost suggesting that he actually Mr. SPECTER. My unanimous con- relied on the Bybee memo in formu- wrote it. He did not. He had nothing to sent request is that at 2:15, when we re- lating his policy with respect to inter- do with it. In fact, they criticize him sume, Senator MIKULSKI be recognized for 10 minutes and Senator SCHUMER be rogation techniques at Abu Ghraib. because they believe he did not object recognized for 10 minutes and then Let’s take a look at these documents. to the memo at the time he received it. Senator HATCH be recognized to con- First, the so-called Bybee memo- But the fact is, we do not know what clude his remarks, then Senator randum was not written by Judge his private legal advice was to the CORNYN be recognized, and then Sen- Gonzales, in spite of the implications President on the Bybee memo because by some. It was written by Jay Bybee ator KENNEDY be recognized. that advice is privileged advice. And The PRESIDING OFFICER. Is there who, at that time, was the Assistant Presidents do not want their counsel objection? Attorney General of the Office of Legal divulging privileged advice. Mr. LEAHY. Reserving the right to Counsel at the Department of Justice, In fact, we should think twice before object, it would be Senators SCHUMER, and is now a distinguished judge on the we ever proceed down the path of at- HATCH, CORNYN, and KENNEDY? Circuit Court of Appeals for the Ninth tempting to require the White House Mr. SPECTER. It would be Senators Circuit. That is why some people call it Counsel to divulge to the Congress in MIKULSKI, SCHUMER, HATCH, CORNYN, the Bybee memo. They could not call it an open hearing precisely what legal and KENNEDY. the Gonzales memo. It is not the advice he gave to the President on an Mr. LEAHY. I have no objection. Gonzales memo, has never been the inherently sensitive matter such as The PRESIDING OFFICER. Without Gonzales memo. those that directly relate to national objection, it is so ordered. The memo is dated August 1, 2002. security. Mr. SPECTER. I thank the Chair. Remember that date. The memo ad- When all is said and done, Judge f dresses the Convention Against Tor- Gonzales did not supervise Jay Bybee. RECESS ture and Other Cruel, Inhuman and De- He did not supervise Attorney General grading Treatment or Punishment. It Ashcroft. It was not his job as White The PRESIDING OFFICER. Under does not analyze the Geneva Conven- House Counsel to approve of memos the previous order, the hour of 12:30 tion. Let me just mention that this is written by the Justice Department. p.m. having arrived, the Senate will re- a scholarly piece of analysis. Regard- And that memo of February 7 said the cess until 2:15 p.m. less of whether you agree or disagree detainees should be treated humanely. There being no objection, the Senate, with its legal conclusion, there can be That was the President’s position. at 12:30 p.m., recessed until 2:14 p.m. little doubt that this 50-page, single- I have a lot more I want to say about and reassembled when called to order spaced document with 26 footnotes is a this, but I notice the distinguished by the Presiding Officer (Mr. thoughtful and thorough analysis. Senator from New York is here and VOINOVICH). Let me also say that this memo does wanted to say a few words before we f not tell the President to use torture in break for lunch. I will interrupt my re- EXECUTIVE SESSION Iraq. Rather it tries to define what tor- marks. I couldn’t interrupt a few min- ture is from a purely legal perspective. utes earlier. I will come back to this Let’s compare the Bybee memo with subject. NOMINATION OF ALBERTO R. the President’s actual memorandum on I hope the Chair will allow the senior GONZALES TO BE ATTORNEY the treatment of detainees. The subject Senator from New York to have a few GENERAL—CONTINUED of this memo is the humane treatment extra minutes. I would be happy to sit The PRESIDING OFFICER. Under of al-Qaida and Taliban detainees. The in the chair, if needed. But I will relin- the order of recognition, Senator MI- President’s memo was written on Feb- quish the floor and ask unanimous con- KULSKI is recognized for 10 minutes, ruary 7, 2002. This is 6 months before sent if I can finish my remarks after Senator SCHUMER for 10 minutes, fol- the Bybee memorandum. So there is the luncheon; is that possible? lowed by Senator HATCH, Senator absolutely no way the President could Mr. SPECTER. Mr. President, we CORNYN, and Senator KENNEDY, with no have relied on the August 1, 2002, Bybee have consent following the lunch. I time limit agreed to for Senator memo because it did not exist at the think the Senator from—— HATCH, Senator CORNYN, and Senator time he issued his definitive February 7 Mr. HATCH. Immediately after the KENNEDY. directive, the one that he and others consent order. The Senator from Pennsylvania. followed. Mr. SPECTER. The Senator is enti- Mr. SPECTER. Mr. President, the Let me be clear: I am not saying the tled to finish. agreement is to have Senator MIKULSKI Justice Department never considered Mr. HATCH. Especially being inter- recognized for 10 minutes and Senator the Convention Against Torture prior rupted and accommodating colleagues SCHUMER for 10 minutes. There is no to August 1, 2002. In fact, given the vo- on the other side. I would like to fin- time set when Senator HATCH resumes, luminous length of the analysis, it ish. and then Senator CORNYN is in line, probably took some time to write. But Mr. SPECTER. There had been a re- and then Senator KENNEDY is in line. It to suggest this Bybee memo, which ad- quest for Senator MIKULSKI for 10 min- is my hope we will be able to get a con- dresses a different statute, a statute utes right after lunch. sent agreement for the full debate time that is nowhere mentioned in the Mr. LEAHY. Yes, at 2:15. We don’t early this afternoon when that appears President’s memorandum, was indis- have to break at 12:30. We could con- to be appropriate. pensable in crafting the President’s de- tinue on. I was off the floor. What was Senator MIKULSKI, under the unani- cision is simply false for the simple the request? mous consent agreement, now has 10 reason it did not exist at the time. Mr. SCHUMER. Will my colleague minutes. What some of my Democratic col- yield for a minute? The PRESIDING OFFICER. The Sen- leagues are trying to do is hold Judge Mr. LEAHY. I don’t have the floor. ator from Maryland.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S706 CONGRESSIONAL RECORD — SENATE February 1, 2005 Ms. MIKULSKI. Mr. President, I rise promised our Nation’s moral leader- jobs is to recommend Federal judicial to exercise my constitutional responsi- ship. He failed in the most important nominations. The way he has gone bility pertaining to the nomination of job, telling the President no, and about nominations for the appellate Mr. Alberto Gonzales to be Attorney speaking truth to power. court has been troubling. The White General of the United States. After a careful review of his record, I House Counsel’s Office has pushed some Over the weekend, all of us were do not believe that Judge Gonzales can of the most ideological and extreme ju- heartened to see the enormous turnout fulfill the principles we want at the De- dicial nominees we have ever seen, of the Iraqi people seeking democracy partment of Justice. nominees with hostility to civil rights, and participating in the processes of This issue of torture is a very trou- to women’s rights, to environmental democracy, even risking life and limb bling one. Mr. Gonzales’s advice to the rights, and to disability rights. This is to vote in an act of self-determination President on this issue as well as de- even more troubling as we face a pos- over the future of Iraq. I was particu- tention and interrogation are very dis- sible Supreme Court vacancy. larly filled with joy when I saw that turbing. Under his watch the adminis- Let me talk as the Senator from women were free to participate in a tration changed the definition of tor- Maryland. I know it firsthand. We have democratic process in Iraq. But as we ture, limiting it to physical pain equiv- a vacancy on the Fourth Circuit Court look to Iraq’s move toward a demo- alent in intensity to pain accom- of Appeals, and its Maryland’s seat cratic framework, the United States of panying serious physical injury or even that is vacant. Who did Gonzales pick? America must continue to lead the death. His advice provided the pathway First of all, he wanted a nominee who way, but also lead by example—how to the President to exempt U.S. offi- was not even a member of the Mary- our own country, through its processes cials from international law governing land bar. That was pretty sloppy or and the people who govern, stand up torture. pretty ideological. Then they picked for the principles that have been the What did that mean? It meant that if someone with minimal qualifications. hallmark of the United States of Amer- the United States of America engaged There are over 30,000 lawyers in Mary- ica. in torture, he wanted to have legal ar- land and they couldn’t find somebody It is because of these principles of guments to show we would not be tried who was a member of the Maryland truth, justice, dignity, civil rights, as war criminals. In his 2002 memo to bar? Why not? They found three for the human rights, and the enforcement of President Bush, he provided a legal Federal district court. Instead they the rule of law that when it comes to analysis that allowed the President to wanted to play politics, and the way he the nomination of Judge Alberto sidestep international principles gov- wanted to play politics was to take Gonzales to be the Attorney General, I erning humane treatment. He said that away the Fourth Circuit seat from must reluctantly say that I cannot sup- the new form of war ‘‘renders quaint’’ Maryland and give it to Virginia. port this nomination. the Geneva Conventions. That state- We should not play politics with judi- When you meet Mr. Gonzales, you ment is outrageous. Quaint means out- cial nominations. Do we want an At- find him to be a warm, engaging per- dated or old fashioned. It means it is torney General who will play politics son, a person of civility and courtesy an Edsel. Quaint is a hoola hoop. It is with the law, play politics with the who has an incredibly compelling per- not a treaty. You don’t call the Geneva court, and just play politics with inter- sonal story. Convention that. Though it’s often not national conventions designed to pro- But we are not here to vote for a per- enforced as vigorously as we would tect our troops? I do not want to play sonal story; we are here to vote for the want, it is the one tool that has pro- that kind of politics. I am going to Attorney General of the United States, tected our own troops. It sets guide- vote against Alberto Gonzales. whose job is to enforce the law. Sure, lines for humane treatment of pris- Let me say this: The position of At- we hear what a great background Mr. oners. If America flaunts these laws— torney General is unique in American Gonzales has: the son of migrant work- what will happen to our soldiers if they Government. As leader of the Depart- ers, the first in his family to go to col- are captured. That is why the mili- ment of Justice, the AG must have a lege and to law school, to work at a tary’s judge advocate general corps and deep respect for the Constitution. That prestigious law firm, to go on to the former Secretary of State Powell urged person has to be strong and willing to Supreme Court of Texas, and be a the President to stand behind the Ge- do what is right, regardless of politics, Counsel to the President of the United neva Conventions. of pressure, or what is popular. The At- States. But this is a man who, in his Since 9/11 we know that America has torney General is America’s most im- very act as Counsel to the President, been fighting a different kind of war. portant lawyer but also the people’s created a whole new framework that We do know that we have to get infor- lawyer, to protect the American people created a permissive atmosphere for mation from terrorists who have preda- and important institutions. the United States of America to engage tory intents toward our country. We do Unfortunately, Mr. Gonzales has in torture. That is unacceptable. need to look at new approaches, and spent the last 4 years as a single-mind- Mr. Gonzales attended the U.S. Air maybe even reforming the Geneva Con- ed advocate for Presidential policies, Force Academy—wow, what a great ac- vention. But we should not do it by which he himself should have cau- complishment. If anyone would under- flouting international law. tioned the President against under- stand the risk to troops should they The memorandums that Gonzales taking. He could have advised the fall and be taken prisoners of war, why oversaw allowed a framework and an President and shown respect for the they should be held under the Geneva attitude for torture to take place. law. But that is not his record. If he Convention which protects the rights Now where are we? We have troops cannot value America’s constitutional of a prisoner, it should be someone who under court-martial, and what we have principles and give independent advice attended the U.S. Air Force Academy, is punishment at the bottom and to the President, I can’t vote for him which has a high rate of graduates condoning at the top. for Attorney General. taken POW. We can’t have an Attorney General When we look at all the others things Certainly the story is inspiring, but like that. We need to have an Attorney he has done—he skirted questions we are not voting on a personal story. General who seeks the truth, who about the President’s authority on tor- The Attorney General must be com- wants to help protect the United ture; he didn’t want to answer ques- mitted to core constitutional values States of America and protect the tions for the committee. He said he and to the rule of law. He must have a United States of America for what it couldn’t remember, then he couldn’t record of independence and good judg- stands for. This is one of the reasons I find this and he couldn’t find that—I ment. Mr. Gonzales has not dem- cannot support him. can’t find it in me to vote for him. onstrated that commitment. In his But let’s say 9/11 had never taken There are those who say the Presi- zealous attempt to be the protector of place and he had never written that dent has a right to his nominations. the President, he has adopted legal rea- memo and we had never gone to war in The President does have a right to a soning at odds with core constitutional Iraq—wouldn’t we all love it? I still nomination, but that doesn’t mean he values. He has rejected long-estab- would have flashing yellow lights has the right to get his nominee. The lished legal principles and com- about Mr. Gonzales. One of his main Founders of this country, the people

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S707 who invented America and wrote the have said before, it is hard to be a department, one more willing to listen Constitution of the United States, gave straight shooter if you are a blind loy- to the oral arguments than John the Senate an advice and consent func- alist. Ashcroft. tion. That means, to advise the Presi- There are two models for an Attor- Unfortunately, even a cursory review dent on best policies and best possible ney General: loyalist and independent, of his answers reveal strict adherence people, before we give our consent to and we all know there were Attorneys to the White House line and barely a the President. General over the years who have been drop of independence. I cannot be a rubberstamp. I have to close to the President. Robert Kennedy A set of answers very important to vote my conscience and to cast my is a great example. He served his own me came in response to my questions vote, reluctantly, against Alberto brother. But that said, no one ever on the nuclear option—whether to rule Gonzales. doubted, in the confines of the Oval Of- from the chair that Senators were not I yield the floor. fice, Bobby Kennedy would oppose his allowed to filibuster judicial nominees. The PRESIDING OFFICER. The Sen- brother if he thought he was wrong. When we met in private, I asked ator from New York. Judge Gonzales is more of a loyalist Judge Gonzales his opinion about the Mr. SCHUMER. Mr. President, this than an independent, but that alone constitutionality of the nuclear option. has been one of the most difficult votes does not disqualify him. It raises con- He said he had not reviewed the appli- on a nominee I have had to make since cerns, but after extensive review of the cable constitutional clauses, and that coming to the Senate, and that is be- record, unfortunately and sadly, and in any event it was a matter reserved cause I like Judge Gonzales. I respect despite my great personal affection for for the Senate. I asked him at that pri- him. I think he is a gentleman, and I Judge Gonzales, his testimony before vate meeting before the hearing. think he is genuinely a good man. We the committee turned me around and It wasn’t taking him by surprise in have worked well together, especially changed my vote from yes to no. He any way to look at the Constitution. I when it comes to filling the vacancies was so circumspect in his answers, so told him I would ask the question on New York’s Federal bench. He has unwilling to leave even a micron of again at the hearing. I informed him been straightforward with me, he has space between his views and the Presi- that his answer on this question would been open to compromise, and the dent’s, that I now have real doubts weigh heavily on my decision whether bench is filled with good people. whether he can perform the job of At- to support his confirmation. Our interactions have not just been torney General. At the hearing, when I asked Judge cordial, they have been pleasant. I have In short, Judge Gonzales still seems Gonzales about the nuclear option, enjoyed the give and take in which we to see himself as Counsel to the Presi- rather than being candid, he com- have engaged. Therefore, when Presi- dent, not as Attorney General, the pletely avoided the question, ducking, dent Bush nominated Judge Gonzales chief law enforcement officer of the dodging, and weaving. to be Attorney General, my first reac- land. I asked him three times to give his tion was positive. Unlike with judicial I would like to give a little bit of his- opinion, and each time he refused. I nominees which are life appointments tory. Judge Gonzales came and saw me asked him twice more in writing, and from a separate branch of Government, back in December. We had a good con- again he refused to answer. In one of Cabinet officers serve the President, versation on a range of topics. I re- those questions, I simply asked him to and I generally believe we should show spected and appreciated his commit- imagine he was counsel to a U.S. Sen- deference to the President’s choices. ment to recuse himself from the inves- ator who was seeking his opinion on That is why I was inclined to support tigation into the felony disclosure of the constitutionality of the nuclear op- Judge Gonzales. I believed, and I said then-covert CIA agent Valerie Plane’s tion, and no interference in serving the publicly, that Judge Gonzales was a identity. President. Again, he refused to answer. much less polarizing figure than Sen- I told him that I understood 9/11 cre- This is a crucial issue for me for two ator Ashcroft had been. ated a brave new world; that the war reasons. First, the importance of the But less polarizing than John on terror required reassessment of the nuclear option; and second, the impor- Ashcroft is not enough alone to get my rules of law; and I told him that given tance of Judge Gonzales’s independence vote. Even if you are, as Judge the enemies we now face, we couldn’t as Attorney General. Gonzales is, a good person with top- afford to be doctrinaire. I believe the nuclear option would be notch legal qualifications, you still I told him I supported the adminis- so deeply destructive it would turn the must have the independence necessary tration when it comes to aggressively U.S. Senate into a legislative waste- to be the Nation’s chief law enforce- reexamining the way we do business land and turn the Constitution inside ment officer. The Attorney General is and interrogating witnesses. out. Madison’s ‘‘cooling saucer’’ would unlike any other Cabinet officer. For I agree we have to make sure we are be shattered into shards. all those other Cabinet officers, simply doing everything we can do to protect Judge Gonzales in his refusal to an- carrying out the President’s agenda is American families from those who swer such vital questions and even giv- enough. But to be a good Attorney would do us harm to prevent another 9/ ing opinions so that we might see the General, unqualified deference to the 11, but I also told Judge Gonzales that way he thinks weighs a lot with me, at President is not enough. Unlike all the I was troubled that the administration least in terms of my vote, not in terms other Cabinet positions, where your had undertaken its reworking or rein- of him as a person. role is to implement and advance the terpretation of the rules of war behind The matter repeated itself on ques- President’s policies as Attorney Gen- closed doors rather than engaging the tion after question. On torture and eral, as the Nation’s chief law enforce- Congress and the American public and nearly everything else, it seemed as if ment officer, your job is to enforce the the international community in an Judge Gonzales was going out of his law, all the laws, whether they hurt or open and direct fashion. way to avoid answering. He dem- help the administration’s objectives. Time and time again the administra- onstrated a lack of straightforwardness This position requires a greater de- tion has gotten itself into trouble by and independence on just about every gree of independence than, for example, trying to go at it alone rather than single question he was asked—again, the Secretary of State, whose obliga- doing business in the open, particularly no glimmer of light between how he tion is to advance the President’s in- in the Justice Department. Whether it might see things and how the President terests abroad. When the White House was the total information awareness might see things. asks the Justice Department, Can we project, the TIPS Program, or torture, When you are the chief law enforce- do x? Can we wiretap this group of peo- they have been burned by their pecu- ment officer of the land, when you are ple? The Justice Department is charged liar penchant for complete secrecy. asked to rule on sensitive questions with giving an objective answer, not I encouraged Judge Gonzales to be that balance liberty and security, you one tailored to achieve the President’s candid with the committee when dis- can’t just do what the President wants goals. That is the chief law enforce- cussing these issues. I encouraged him all the time or you are not serving ment officer of the land—separate from to give us some hope that he would run your country or serving the job. It is the President’s right-hand person. As I a different department, a more open different from other Cabinet positions.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S708 CONGRESSIONAL RECORD — SENATE February 1, 2005 I concluded that Judge Gonzales still to you—and it is true, it was addressed Detainees,’’ dated January 22, 2002; (2) a let- sees himself as a White House Counsel to me—and you open the package and ter from the Attorney General to the Presi- rather than the nominee to be Attor- of course there is nothing in there and dent on the status of Taliban detainees, ney General, the chief law enforcement it still does not answer the question. dated February 1, 2002; (3) a memorandum from OLC to the Counsel to the President on I will not object. I also appreciate the officer of the land. the ‘‘Status of Taliban Forces Under Article I have great respect for the judge. courtesy of the chairman making sure 4 of the Third Geneva Convention of 1949,’’ The Horatio Alger story that he had that everyone knew the letter had ar- dated February 7, 2002; (4) a memorandum makes all of us proud to be Americans. rived. from OLC to the General Counsel of the De- It makes us glad about the future of Mr. SPECTER. As I received the let- partment of Defense on the ‘‘Potential Legal new communities as they rise in Amer- ter this morning, I took steps to try to Constraints Applicable to Interrogations of ica. It is truly an amazing country identify the memoranda and obtain it, Persons Captured by U.S. Armed Forces in when a man can rise from such humble if possible. These are the results. They Afghanistan,’’ dated February 26, 2002; (5) a beginnings to be nominated Attorney ought to be made part of the record. letter from OLC to the Counsel to the Presi- General. There being no objection, the mate- dent on the legality, under international law, of interrogation methods to be used dur- I am mindful of the fact that if he is rial was ordered to be printed in the ing the war on terrorism, dated August 1, confirmed, as I anticipate he will be, RECORD, as follows: 2002; and (6) a memorandum from OLC to the Judge Gonzales will be the Nation’s DEPARTMENT OF JUSTICE, Counsel to the President on ‘‘Standards of first Hispanic Attorney General. It is a OFFICE OF LEGISLATIVE AFFAIRS, Conduct for Interrogation under 18 U.S.C. tremendous success story that makes Washington, DC, February 1, 2005. §§ 2340–2340A,’’ dated August 1, 2002. this vote even more difficult, although Hon. ARLEN SPECTER, Chairman, Committee on the Judiciary, U.S. While these are documents that would not I am also mindful of the fact that the Senate, Dirksen SOB, Washington, DC. usually be disclosed to anyone outside the Hispanic Caucus voted against his DEAR MR. CHAIRMAN: You have inquired Executive Branch, the Administration de- nomination. about a memorandum from the Office of cided to release a number of documents, in- When I called Judge Gonzales last Legal Counsel, described in recent press re- cluding these and including many from the week to tell him how I would be voting, ports as being signed by Jay Bybee, then As- Department of Defense, to provide a fuller he was understandably disappointed sistant Attorney General for the Office of picture of the issues the Administration had but he was, as always, a gentleman. He Legal Counsel, and addressed to another considered and the narrower policies the Ad- ministration actually adopted in this impor- assured me we would continue working agency, signed on or about the same date as the August 1, 2002, memorandum which has tant area. While we appreciate your interest together to solve our Nation’s prob- been made public, addressing the legality of in the additional documents set forth in the lems. He assured me he would prove me specific interrogation practices under 18 attachment to your letter, the Executive wrong, and I hope he does. U.S.C. §§ 2340 and 2340A. Brand has substantial confidentiality inter- It was one of the most difficult con- As the Department of Justice made clear ests in those documents. OLC opinions con- versations I have had in a long time. in a letter to Senator LEAHY dated July 1, sist of confidential legal advice, analysis, But it is too significant a job and too 2004, (enclosed) ‘‘[t]he Department of Justice conclusions, and recommendations for the important a time to have an Attorney has given specific advice concerning specific consideration of senior Administration deci- General about whom we have such se- interrogation practices, concluding that sionmakers. The disclosure of OLC opinions they are lawful.’’ As the Department also that have not been determined to be appro- vere doubts. made clear at that time, that advice is clas- priate for public dissemination would harm I have no choice but, with sadness, to sified and the Department will not discuss it the deliberative processes of the Executive vote no. further publicly. Thus, the existence of a Branch and disrupt the attorney-client rela- I yield the floor. classified opinion from the Department of tionship between OLC and Administration Mr. SPECTER. Mr. President, I re- Justice on the subject of specific interroga- officials. We are not prepared to identify ceived a letter this morning addressed tion practices has been publicly acknowl- these documents specifically or reveal which to Senator COLLINS and myself, Sen- edged for more than six months. As the De- documents may be classified, but we can as- ator LEAHY and Senator LIEBERMAN, partment noted in the July 1, 2004 letter, sure you that no portions of any of these documents have been classified since the At- from Senator KENNEDY and Senator that advice has been appropriately provided by the client agency in a classified setting to torney General’s testimony on June 8, 2004. DURBIN concerning the certain second the relevant oversight committee. We also can state that included in the report from the Department of Justice. Finally, the Office of Legal Counsel in its Immediately on receiving the letter, I memoranda that have been released are all recent memorandum of December 30, 2004, unclassified, final written opinions from the contacted the Department of Justice to stated ‘‘we have reviewed this Office’s prior Department of Justice addressing the legal- opinions addressing issues involving [inter- obtain a copy of the report. This is a ity of interrogation techniques used in inter- rogation] of detainees and do not believe report that did not go to Judge rogations conducted by the United States of that any of their conclusions would be dif- Gonzales but went to another client al Qaeda and Taliban enemy combatants. ferent under the standards set forth in this agency by the Department of Justice While the Department has not issued written memorandum.’’ opinions addressing interrogation practices advising them as to the legal param- Sincerely, in Iraq, it has been the consistent under- eters for interrogation techniques, and WILLIAM E. MOSCHELLA, standing within the Executive Branch that that the identity of the memoranda Assistant Attorney General. that previously had been disclosed to Enclosure. the conflict with Iraq is covered by the Gene- va Conventions, and the Department has Senator LEAHY, although the memo DEPARTMENT OF JUSTICE, concurred in that understanding. had not been transmitted. And the OFFICE OF LEGISLATIVE AFFAIRS, matter had been briefed to the chair- Washington, DC, July 1, 2004. Lastly, we note that some of the docu- man of the oversight committee which Hon. PATRICK J. LEAHY, ments requested originated with other agen- Ranking Minority Member, Committee on the cies such as the Departments of State and has jurisdiction over the client com- Judiciary, U.S. Senate, Washington, DC. Defense. Consistent with established third- mittee. I am not very happy about all DEAR SENATOR LEAHY: This responds to agency practice, we suggest that you contact this circumlocution, but that is the in- your letter, dated June 15, 2004, which en- those agencies directly if you wish to obtain formation I have. closed written questions for the record of the copies of their documents. Committee’s oversight hearing on June 8, Since Senator KENNEDY was sched- 5. Do you agree with the conclusions ar- 2004, regarding terrorism, with particular uled to speak in a few minutes when I ticulated in an August 1, 2002, memorandum reference to the interrogation of detainees. got this at 2:20, I am advising my col- from Jay Bybee, then AAG for the Office of leagues one of them is a recipient of Questions 1 through 4: Administration docu- Legal Counsel, to Alberto Gonzales, Counsel the letter, Senator LEAHY; another is ments to the President, that: (A) for conduct to rise the writer of the letter, Senator KEN- In response to the requests for documents to the level of ‘‘torture’’ it must include con- NEDY. contained in your first four questions, en- duct that a prudent lay person could reason- I ask unanimous consent these docu- closed are six Department of Justice docu- ably expect would rise to the level of ‘‘death, ments that have been released publicly. They organ failure, or the permanent impairment ments be printed in the RECORD. are: (1) a memorandum from the Office of of a significant bodily function,’’ and (B) sec- Mr. LEAHY. Reserving the right to Legal Counsel (OLC) to the Counsel to the tion 2340A, of the Federal criminal code object, and I shall not object, fortu- President and the General Counsel of the De- ‘‘must be construed as not applying to inter- nately getting a letter like that is sort partment of Defense on the ‘‘Application of rogations undertaken pursuant to [the Presi- of like getting a big package addressed Treaties and Laws to al Qaeda and Taliban dent’s] Commander-in-Chief authority’’?

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S709 (A) In sections 2340 & 2340A of title 18, Con- constitutional infringement on the Presi- you have the authority to order any kind of gress defined torture as an act ‘‘specifically dent’s Commander-in-Chief power. Cf Re- interrogation techniques that are necessary intended to inflict severe physical or mental quest of the Senate for an Opinion as to the to pursue the war on terror . . . [D]id you pain or suffering.’’ Because Congress chose Powers of the President ‘In Emergency or issue any such authorization at any time?’’ to define torture as encompassing only those State of War,’ 39 Op. A.G. 343, 347–48 (1939). The President answered: ‘‘No, the authoriza- acts that inflict ‘‘severe . . . pain or suf- 6. Has President Bush or anyone acting tion I issued . . . was that anything we did fering,’’ Department of Justice lawyers who under his authority issued any order, direc- would conform to U.S. law and would be con- are asked to explain the scope of that prohi- tive, instruction, finding, or other writing sistent with international treaty obliga- bition must provide some guidance con- regarding the interrogation of individuals tions.’’ Please provide a copy of the author- cerning what Congress meant by the words held in the custody of the U.S. Government ization to which the President was referring. ‘‘severe pain’’ (emphasis added). In an effort or as an agent of the U.S. Government? If so, Please also provide a copy of the Presi- to answer that question, the August 1, 2002 please provide copies. If any portion of any dential directive you had before you and re- memorandum examines other places in the document is provided with redactions, please ferred to at the hearing. federal code where Congress used the same explain the basis for such redactions. The At the press conference to which you refer, term—‘‘severe pain.’’ In at least six other basis for withholding any document should it seems likely that the President was refer- provisions in the U.S. Code addressing emer- also be explained in detail. ring to the February 7, 2002, instruction dis- gency medical conditions, Congress identi- On June 22, 2004, the White House released cussed above. At the hearing before the Com- fied ‘‘severe pain’’ as a typical symptom that the instruction issued by the President to mittee, the Attorney General was also refer- would indicate to a prudent lay person a the Department of Defense on February 7, ring to the President’s instruction of Feb- medical condition that, if not treated imme- 2002, concerning the treatment of al Qaeda ruary 7, 2002. The Attorney General did not diately, would result in—‘‘(i) placing the and Taliban detainees (it does not, however, have any Presidential directive before him health of the individual . . . in serious jeop- expressly address interrogation practices). at the hearing, He was merely reading lan- ardy, (ii) serious impairment to body func- The Department of Justice is not aware of guage from the February 7, document that tions, or (iii) serious dysfunction of any bod- any writing issued by the President that ex- had been incorporated into his notes. ily organ or part.’’ 42 U.S.C. § 139w– pressly addresses the issue of interrogations 8. Were you ever asked to approve or other- 22(d)(3)(B); see also 8 U.S.C. § 1369(d) (same); practices. The President has, however, made wise agree to a set of rules, procedures, or 42 U.S.C. § 1395x(v)(1)(K)(ii); id. it clear that the United States does not con- guidelines authorizing the interrogation of § 1395dd(e)(1)(A); id. § 1396b(v)(3); id. § 1396u– done or commit torture. We should also em- individuals held in the custody of the U.S. 2(b)(2)(C). In light of Congress’s repeated phasize that the President has not in any Government or an agent of the U.S. Govern- usage of the term, the memorandum con- way made a determination that doctrines of ment? If so, please indicate when you were cluded that, in Congress’s view, ‘‘severe necessity or self-defense would point conduct asked to do so, and whether you did, in fact, pain’’ was the type of pain that would be as- that otherwise constitutes torture. The approve or agree in any way in whole or in sociated with such conditions. (The opinion President has never given any order or direc- part. In addition, please provide a copy of refers to these medical consequences as a tive that would immunize from prosecution any such rules, procedures or guidelines, or guide for what Congress meant by ‘‘severe anyone engaged in conduct that constitutes explain your basis for refusing to do so. The Department of Justice has given spe- pain’’; it does not state, as your question torture. cific advice concerning specific interrogation suggests, that, to constitute torture, conduct We assume that to the extent your ques- practices, concluding that they are lawful. must be likely to cause those consequences.) tion asks about directives issued by others Although, in other statutory provisions, under the President’s authority it is limited The institutional interests the Executive Congress repeatedly associated ‘‘severe to interrogations of enemy combatants in Branch has in ensuring that agencies of the Executive Branch can receive confidential pain’’ as a symptom with certain physical or the conflict with al Qaeda and the Taliban or legal advice from the Department of Justice medical consequences, it is open to doubt interrogations of persons detained in connec- require that that specific advice not be pub- whether that statutory language actually tion with the conflict in Iraq. As you know, licly disclosed. In addition, that advice is provides useful guidance concerning, the pro- numerous law enforcement agencies of the classified. We understand that, to the extent hibition in sections 2340 & 2340A. A descrip- Executive Branch have likely acted under the client department(s) have not already tion of medical consequences—consequences the President’s authority as Chief Executive done so, they will arrange to provide the ad- which could be accompanied by a variety of to issue numerous directives concerning in- vice to the relevant oversight committees in symptoms including varying degrees of terrogations or interviews of subjects in cus- pain—does not necessarily impart useful a classified setting. tody in the ordinary course of enforcing the As noted above, included among the memo- guidance to a lay person concerning the criminal and immigration laws. We assume randa that the Department has already re- meaning of ‘‘severe pain’’ The Office of Legal that such directives are outside the scope of leased are all unclassified, final written Counsel is currently reviewing that memo- your question. opinions from the Department of Justice ad- randum with a view to issuing a new opinion Numerous individuals acting under the dressing the legality of interrogation tech- to replace it and may well conclude that the President’s authority have undoubtedly niques used in interrogations conducted by meaning Congress intended when it defined issued orders or instructions regarding inter- the United States of al Qaeda and Taliban torture to require ‘‘severe pain’’ is best de- rogations of individuals in U.S. custody, enemy combatants. While the Department termined from the other sources addressed in both in the conflict with al Qaeda and the has not issued written opinions addressing the original memorandum, including stand- Taliban and in the conflict in Iraq. Such doc- interrogation practices in Iraq, it has been ard dictionary definitions. See, e.g., FDIC v. uments, however, are not Department of Jus- the consistent understanding within the Ex- Meyer, 510 U.S. 471, 476 (1994) (‘‘In the ab- tice documents. Those documents should be ecutive Branch that the conflict in Iraq is sence of [a statutory] definition, we construe sought from the appropriate departments or covered by the Geneva Conventions, and the a statutory term in accordance with its ordi- agencies that issued them, through the ap- Department has concurred in that under- nary or natural meaning.’’). propriate oversight committees in Congress. standing. (B) The analysis in the August 1, 2002, As for the Department of Justice, the Gen- 9. What were the criteria the Department memorandum concerning the President’s au- eral Counsel of the FBI issued a memo- used in selecting civilian contractors to as- thority under the Commander-in-Chief randum on May 19, 2004, reiterating existing sist in the reconstituting of Iraq’s prison Clause, U.S. Const. art. II, sect. 2, c1. 1, was FBI policy with regard to the interrogation system? Please describe the vetting process unnecessary for any specific advice provided of prisoners, detainees or other persons to which they were subjected. To what ex- by the Department. The Department has under United States control. That memo- tent were concerns about their backgrounds concluded that specific practices it has re- randum reiterated established FBI require- known to the officials who recommended viewed are lawful under the terms of sections ment that FBI personnel ‘‘may not obtain them to you and to what extent were you, 2340 & 2340A of title 18 and other applicable statements during interrogations by the use aware of such concerns when you selected law without regard to any such analysis of of force, threats, physical abuse, threats of them? Why were such concerns dismissed the Commander-in-Chief Clause. The discus- such abuse, or severe physical conditions.’’ It when such individuals were recommended to sion is thus irrelevant to any policy adopted also set forth reporting requirements for you and selected by you? Please explain in by the Administration. As a result, that known or suspected abuse or mistreatment detail. analysis is under review by the Office of of detainees. A copy of that memorandum is It was and is essential that we do whatever Legal Counsel and likely will not be included enclosed. The Department is still following we can to help create a fair and humane in a revised memorandum that will replace up to determine whether there are any other criminal justice system in Iraq. To that end, the August 1, 2002, memorandum. The De- similar written directives relevant to your the Department of Justice responded to ur- partment believes that, as a general matter, question. Please also see the response to gent requests from the Coalition Provisional the better course is not to speculate about Question 8 concerning the Department’s Authority (‘‘CPA’’) and its predecessor for difficult constitutional issues that need not legal advice to other agencies. the provision of experts in the areas of pros- be decided. For the same reason, it would be 7. On Friday June 11, 2004, the President ecution, policing, and corrections. The indi- imprudent to speculate here concerning was asked the following question at a press viduals whom the Department of Justice has whether some extreme circumstances might conference: ‘‘Mr. President, the Justice De- sent to Iraq—federal prosecutors, former exist in which a particular application of partment issued an advisory opinion last state and local police officers; and correc- sections 2340 & 2340A would constitute an un- year declaring that as Commander-in-Chief tions experts—have volunteered to take on

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S710 CONGRESSIONAL RECORD — SENATE February 1, 2005 one of the most dangerous missions in that port to you that, so far as we have been able military bases and other U.S. facilities over- country. They are literally on the front to determine, they have done so in a manner seas. In particular, the amendment was in- lines: in the courts, in the police stations, that has brought honor to the United States. tended to address a conflict among the and in the prisons. We nevertheless recognize that we must en- courts of appeals concerning the The experts the Department provided to gage in constant vigilance to ensure that extraterritorial application of an existing the CPA—including the corrections experts— this remains the case, and intend to do so paragraph in section 7 and to codify the have had neither responsibility for, nor con- throughout the duration of our mission in longstanding position of the United States trol over, individuals detained by the Coali- Iraq. that the SMTJ did extend to overseas bases. tion military forces. The Department’s role 10. Is the Department of Justice currently Compare United States v. Gatlin, 216 F.3d 207 is strictly limited to the Iraqi criminal jus- drafting, or considering drafting, legisation (2d Cir. 2000) (holding, contrary to position tice system. In particular, the corrections to authorize the President to detain individ- taken by the United States, that section 7(3) experts have operated heretofore under the uals as ‘‘enemy combatants? If the Depart- does not apply extraterritorially), with direction of the CPA’s Senior Advisor to the ment is drafting or considering drafting such United States v. Corey, 232 F.3d 1166 (9th Cir. Iraqi Justice Ministry. Thus they have had legislation, will you consult with us before 2000) (holding that section 7(3) does apply no involvement in any of the alleged abuses submitting it to Congress? extraterritorially), and United States v. at the military portions of the Abu Ghraib The Department is not currently drafting Erdos, 474 F.2d 157 (4th Cir. 1973) (same). prison that are currently under investigation or considering drafting such legislation. The (B) The Department would support legisla- by Congress and by the United States Mili- Department does not believe that such legis- tion making sections 2340 & 2340A applicable tary. lation is necessary at the present time. Al- to U.S.-owned, U.S.-run, and U.S.-controlled Ensuring that these contractors are appro- though the Department is still evaluating facilities outside the United States. The priately screened is a responsibility that we the full import of the Supreme Court’s re- question, however, assumes that such appli- take very seriously. But it is important to cent decision, the decision in Harmdi v. cability was clear before the passage of the note that we are aware of no allegation that Rumsfeld, No. 03–6696, slip op. at 9–17 (June USA PATRIOT Act. As our answer to part A any of the corrections contractors com- 28, 2004), confirms that additional legislation indicates, that is not enturely accurate. mitted or countenanced any abuse of pris- is unnecessary. In Hamdi, the Court held Rather, before the PATRIOT Act, there was oners in Iraq. To the contrary, their central that in the Authorization for Use of Military a circuit split concerning the scope of the role in rebuilding the Iraqi prison system— Force, 115 Stat. 224 (Sept 18, 2001), Congress SMTJ and whether or not it applied to over- including creating systems for reporting and has ‘‘clearly and unmistakably authorized seas military bases. Thus, under the view of correcting abuses by Iraqi prison officials— detention’’ of enemy combatants, id. at 12, the Ninth Circuit, the SMTJ extended to has been highly praised by the CPA’s Senior including American citizens, where an military bases overseas and accordingly sec- Advisors to the Iraqi Justice Ministry. Nev- enemy combatant is defined as a person who tions 2340 & 2340A would not have appled to ertheless, at the Attorney General’s request, is ‘‘part of or supporting forces hostile to the such bases. See Corey, 232 F.3d at 1172. Under the Inspector General is undertaking a re- United States or coalition partners’’ and who the view of the Second Circuit, on the other view of the process used to screen and hire ‘‘engaged in an armed conflict against the hand, the SMTJ did not extend to bases over- corrections advisors sent to Iraq. United States,’’ id at 9 (internal quotation seas, and sections 2340 & 2340A would have With regard to the process for selecting the marks omitted). applied to such bases. See Gatlin, 216 F.3d at initial team of corrections experts, which de- Should circumstances change, the Depart- 223. ployed in May 2003, the Deparment of Justice ment would always be willing to work with The Department will gladly work with consulted experts in the Bureau of Prisons the Committee to ensure that necessary and Congress to draft appropriate legislation to (BOP) and the American Correctional Asso- appropriate legislation is enacted. achieve the objective of applying sections ciation. The Department contacted one of 11. During the Judiciary Committee hear- 2340 & 2340A to such bases overseas. Simply the individuals recommended by BOP, a ing last week, you mentioned the limitation returning statutory language to its pre-PA- former BOP Regional Director, and re- placed on the torture statute (18 U.S.C. TRIOT Act form, however, is likely not the quested his assistance in further vetting pro- § 2340–2340A) by 18 U.S.C. § 7(9). This section best means for achieving that goal. posed assessment team members. That indi- was added to the definition of ‘‘special mari- (C) The Department would have no objec- vidual agreed to join the first assessment time and territorial jurisdiction’’ by section tion to such legislation, and would work team, and to help recommend other mem- 804 of the USA-PATRIOT Act—originally an with the Committee to ensure that it is care- bers. Candidates were required to submit SF Administration proposal. The Administra- fully drafted to achieve its intended effect. 85Ps (Questionnaires for Public Trust Posi- tion explained at the time, in its sectional *** tions) and fingerprint cards. NCIC checks analysis, that the provision would ‘‘extend’’ were conducted. No disqualifying informa- Federal jurisdiction to ensure that crimes We hope that this information is helpful. tion was found. committed by or against U.S. nationals We will supplement this response with addi- A second assessment team was deployed abroad on U.S. Government property did not tional information relating to other ques- starting in September 2003. This team was go unpunished. Unmentioned in the Adminis- tions for the hearing record as soon as pos- selected based in part on BOP recommenda- tration’s explanation was that this provision sible. Please do not hesitate to contact this tions and in part on recommendations of creates a jurisdictional gap in our ability to office if you would like additional assistance members of the first assessment team. To be prosecute acts of torture. regarding this or any other matter. sure, some of the corrections experts sent to (A) Did the Department of Justice know Sincerely, Iraq previously had been named in lawsuits and intend that the proposed amendment WILLIAM E. MOSCHELLA in the United States, in their capacities as would restrict the applicability of the anti- Assistant Attorney General. the directors of major state corrections sys- torture statute? Mr. LEAHY. Fortunately, though, tems. Although we do not minimize the sig- (B) Would the Department support legisla- the letter and the way it has been de- nificance of such lawsuits, they are common- tion to restore the pre-PATRIOT Act reach scribed by the chairman is absolutely place for prison officials. And as far as we of the torture statute, making it applicable correct. He has been very straight- are aware, none of the corrections experts to U.S.-owned, U.S.-run, and U.S.-controlled forward in his description. But it does sent to Iraq was ever found by a court to facilities, including aircraft, ships, and other have committed or countenanced abuses mobile sites, located outside of the United not say, and the question was asked of against prisoners in their custody. States? If not, why not? Mr. Gonzales and the White House, was As the need for corrections advisors grew, (C) Would the Justice Department support he aware—was he, Alberto Gonzales the Department worked with a government further extension of the torture statute, to aware—of the second Bybee memo. contractor firm to identify qualified can- make it applicable anywhere outside the That does not require a classified an- didates willing to serve in Iraq. Since Janu- geographical borders of United States (i.e., swer. It is either a ‘‘yes’’ or ‘‘no’’ and ary 2004, more than 80 additional correc- the 50 states, the District of Columbia, and he still refused to answer yes or no. tional experts have served, or are now serv- the commonwealths, territories, and posses- The PRESIDING OFFICER. The Sen- ing, in Iraq. These candidates were also re- sions of the United States)? If not, why not? quired to submit SF85Ps and fingerprint (A) An inquiry with Department personnel ator from Utah. cards. The preliminary results of our inter- who were involved in drafting the amend- Mr. HATCH. Mr. President, out of nal review indicate that a few caudidates ment to the provision defining the special deference to my Democratic colleagues were deployed before the necessary checks maritime and territorial jurisdiction of the this morning, I interrupted my re- had been completed. (We would note, how- United States (‘‘SMTJ’’); 18 U.S.C. § 7; has marks to allow Senator SCHUMER to ever, that we are aware of no allegations or determined that they were unaware of the speak briefly on the nominee. It now findings of abuse of prisoners by these can- potential that the amendment had for affect- has been several hours since I last ing the applicability of sections 2340 & 2340A. didates in Iraq or elsewhere.) Appropriate re- spoke. Let me briefly recap for those medial action is being taken to address this To the contrary, the provision was intended, situation. as the Department’s section-by-section anal- just joining this debate. It goes without saying that these experts ysis indicated, to ensure jurisdiction over Everyone knows I support the nomi- have taken on one of the most dangerous of crimes committed by or against U.S. nation- nation of Judge Gonzales to be the next tasks in Iraq. We are glad to be able to re- als at embassies and consular offices and on Attorney General of the United States.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S711 Early this morning, I talked about these types of legal issues for the exec- So far, the analysis has been pretty Judge Gonzales’s inspirational personal utive branch of Government. He may straightforward. You sign the treaty, background. I talked about his edu- be White House Counsel, but that does the treaty applies to you. The next cational and professional qualifica- not give him the right to change any step is a little more complicated. tions, and they are many. I talked opinion given by the Justice Depart- Under the Geneva Conventions, all de- about all the awards he has won from ment. tainees are not treated alike. In order so many civic organizations. I talked I brought out that on February 7, be- to receive preferential treatment as a about many of the numerous organiza- fore the Bybee memo was brought detainee, you must qualify as a POW, a tions, individuals, and entities that forth, on February 7 of the same year, prisoner of war. In order to be consid- support his nomination—virtually the President did sign a memorandum ered a prisoner of war, the group must most strong Hispanic organizations, in- with regard to the Taliban and al- have an organized command structure, cluding the District Attorneys Associa- Qaida that basically said that although uniforms, or insignia, openly carry tion and the FBI Agents Association, these prisoners did not qualify for Ge- arms and obey the laws of war. Al- and others, as well. neva Convention protections they Qaida and the Taliban detainees cannot In short, I talked about why this man should be treated humanely. We do not qualify as POWs. is the right person for this difficult job hear a lot about that memorandum. If Neither al-Qaida nor the Taliban at this challenging time and why we we do, his critics will probably distort have a permanent centralized commu- should not stand in the way of his ful- it. nications infrastructure—the way you filling this wonderful opportunity—the I would like to spend a few minutes would expect to find such in a typical first Hispanic ever nominated to one of to focus specifically on the Geneva military organization. The Taliban is a the big four Cabinet level positions. I Conventions. There has been a lot of loose array of individuals with shifting discussion and, frankly, a lot of misin- even went over other major first-time loyalties among various Taliban and formation. I would like to take a few Hispanic nominations to major posi- al-Qaida figures. Defections and brib- moments to clarify. Some of the legal tions in this country all the way from ery are rampant. principles involved might sound a little President Reagan, to the first Presi- Second, the Taliban and al-Qaida complicated, but I will try to explain dent Bush, and finally to our current members wear no uniform or other in- this as simply as I can. signia that serve as a ‘‘fixed sign rec- President. The Geneva Conventions are an I also talked about how this man— ognizable at a distance.’’ They dress international treaty. One key question this good, honorable, decent man—is facing the United States as we fought like civilians in that area of the world. being treated by some like a scapegoat. Third, although the Taliban carry back against the terrorists was wheth- Some of my colleagues are trying to arms openly, so do many in Afghani- er Iraq, the Taliban, and al-Qaida unfairly blame Judge Gonzales for stan. They do not attempt to distin- should be treated differently under this abuses committed by renegade soldiers guish themselves from others carrying treaty. at the Abu Ghraib prison. But Judge First, as we all know, treaties are weapons. Gonzales, of course, was not in charge signed by countries. They are not Lastly, al-Qaida and the Taliban do of the soldiers in the field. He was not signed by individuals for individuals. not follow the laws of war. We are all the person telling soldiers what inter- Iraq signed the Geneva Conventions. too familiar with how al-Qaida oper- rogation techniques they could or There has never been any question that ates since we saw their despicable could not use. I, like the President, the Geneva Conventions apply to our handiwork on September 11, 2001. They like Judge Gonzales, and like many of conflict in Iraq where Abu Ghraib is lo- dress as civilians. They specifically at- the American public, was sickened by cated. Afghanistan also signed the Ge- tack civilians after hijacking civilian the abuses that occurred at Abu Ghraib neva Conventions. Afghanistan, how- commercial airlines. They transform prison. But these violations are not ever, has been embroiled in internal civilian aircraft into weapons of de- going unpunished. violent conflicts for 22 years. There struction to murder thousands of ordi- I talked about the investigations, was no legally recognized leader, no le- nary, innocent human beings. prosecutions, and convictions the De- gally recognized central government The Taliban used mosques for ammu- fense Department has undertaken with and, for that matter, there were not nition storage and for command and respect to those perpetrators and how even basic government services in the control meetings. They put tanks and despicable those perpetrators are. I country at that time. The Taliban was artillery in close proximity to hos- know we will see more prosecutions a vile faction struggling for control of pitals, schools, and residences. The and convictions as time goes on. The the nation, but it did not have any- Taliban has massacred hundreds of Af- Defense Department has been active on thing like control over the entire coun- ghan civilians, raped women, and pil- this, acted immediately, and has been try. laged villages. They use villages as acting ever since. It may not be pub- There was a question about whether human shields to protect stockpiles of lished in the front pages of the news- Afghanistan was a failed state as a weapons and ammunition. papers and you may not hear about it matter of international law. If it was a In fact, there is no indication that on the 6 o’clock news, but these people failed state, then the treaty, naturally, the Taliban understood or considered are going to be brought to justice for would not apply to it. Ultimately the themselves bound by or aware of Gene- their wrongdoing. To blame Judge President decided regardless of what va Conventions. The Taliban made lit- Gonzales for this is making him a the law requires, that he was going to tle effort to distinguish between com- scapegoat. That is wrong. apply the Geneva Conventions to the batants and noncombatants when en- That is not the only thing my col- Taliban. That is what it says in the gaging in hostilities. For example, they leagues are trying to unfairly blame President’s February 7, 2002 memo- killed for racial or religious purposes. Judge Gonzales for. They are trying to randum. So even if the Geneva Conventions blame him for the so-called Bybee Going to the third category, al-Qaida applied to al-Qaida, it would not give memo, a memo Judge Gonzales did not is not a country. They are not a faction them preferential treatment because write—a memo that was written by an within a single country. They are a they are not POWs. In fact, as I under- agency, the Department of Justice, group of individuals from lots of dif- stand it, there is no significant dif- that Judge Gonzales did not work in; ferent places who go around the world ference between the treatment being an agency for which Judge Gonzales spreading terror and murdering inno- accorded to the Taliban and al-Qaida, was not responsible. And there has cent people. Simply put, they are a even though the Geneva Conventions been an implication here that he, as gang of terrorists, not a country. Since only apply to the former, the Taliban. White House Counsel, should have re- al-Qaida is not a country, they could Now, let me cut to the chase. The versed everything and told the Justice not sign the treaty, nor would they, President’s February 7, 2002, memo- Department what to do. If he had done and we all know that. So it makes per- randum makes one thing crystal clear: that, he would be criticized for that. fect sense to conclude that the Presi- Regardless of where and when the Ge- The fact of the matter is the Justice dent is not legally required to apply neva Conventions apply—regardless of Department is the advisory body on the Geneva Conventions to al-Qaida. whether the Taliban or al-Qaida are

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S712 CONGRESSIONAL RECORD — SENATE February 1, 2005 POWs—the President says unequivo- ways want to score political points available to the Congress of the United cally that detainees are to be treated leads them to blame all wrongdoings States. humanely. on the President, even in a case like And, I might add, even when it is in This is a crucial point that has often this where he had nothing to do with the interest of the White House, in gotten lost in some of the inflamed these actions. Judge Gonzales has most instances this information re- rhetoric being employed by the oppo- made it clear that he does not defend mains privileged because the executive nents of Judge Gonzales and the Presi- the abuses that occurred. branch reasonably does not wish to set dent. And let us be clear that a consid- I am sure there are many people out a precedent that will lead to Congress erable amount of the criticism being there who are wondering what any of asking for access to every conversation lodged against Judge Gonzales is mere- this has to do with the nomination of that occurs in the White House. ly an attempt to cause political dam- Judge Gonzales. Well, I have to under- In this case, we have some salient age to the President himself. take this legal analysis because some facts. The President did not see the That the purpose of the February 7 people have unfairly attacked Judge January 25, 2002, draft prior to making memo is to ensure that all detainees Gonzales for a draft memorandum with his February 7, 2002, decision to treat are treated humanely is evident by the his name on it. The memo was dated 2 all detainees humanely. And, more im- fact that this concept is repeated four weeks before the President’s order on portant, at the end of the day, Presi- times in that memorandum. February 7, 2002, and it suggests that dent Bush issued a policy directive First, you should know that this is the Geneva Conventions should not that did not go as far as some of the clear from the title of the memo: ‘‘Hu- apply to the Taliban. legal advisers within the administra- mane Treatment of al Qaeda and Several allegations against Judge tion told them he could go under the Taliban Detainees.’’ Gonzales have been raised in the media law. The President makes his policy di- and elsewhere, and I want to set the Now, the draft says some provisions rective explicit in paragraph No. 3 of record straight. of the Geneva Conventions are obsolete the memo: It appears from recent media ac- and quaint, such as providing athletic uniforms, scientific instruments, ad- Of course, our values as a Nation, values counts that this draft was not even that we share with many nations in the written by Judge Gonzales. As is com- vances of salary, and commissary privi- world, call for us to treat detainees hu- mon in many Government offices, leges. People have quoted this out of manely, including those who are not legally drafts are often initially written by context to say that Judge Gonzales entitled to such treatment. lower level individuals and then edited thinks all of the Geneva Conventions He repeats the command again in the and approved by the intended high- are obsolete and quaint. This is simply nonsense. President last sentence of paragraph 3: level author. Bush and Judge Gonzales know how As a matter of policy, the United States We also know this was an early draft important the Geneva Conventions are Armed Forces shall continue to treat detain- because other documents from the to American military personnel. We all ees humanely. State Department indicate that Sec- do. As Judge Gonzales told the Judici- The President repeats the command retary Colin Powell and legal adviser ary Committee on January 6 of this a fourth time in paragraph 5: William H. Taft recommended exten- year: I hereby reaffirm the order previously sive changes to the draft, as they issued by the Secretary of Defense to the Honoring our Geneva obligations provides should have. The recommendations in- critical protection for our fighting men and United States Armed Forces requiring that clude significant changes to the struc- women, and advances norms for the commu- the detainees be treated humanely. ture of the memorandum, and how the nity of nations to follow in times of conflict. One last point on this. In addition to information is presented, as well as Contrary to reports, I consider the Geneva saying again and again that detainees correcting statements of fact and spe- Conventions neither obsolete nor quaint. must be treated humanely, the Presi- cific language. Yet I have seen all kinds of com- dent’s February 7, 2002, memorandum Although we do not know what Judge ments suggesting otherwise. I know also mandates that the U.S. Armed Gonzales actually advised the Presi- Judge Gonzales. I have worked with Forces treat detainees in a manner dent, and we cannot because it was Judge Gonzales for 4 solid years. I consistent with the principles of Gene- confidential advice to the President, knew him before those 4 years. He is a va to the extent appropriate and con- we do know the President’s February 7, man of his word. I take him at his word sistent with military necessity. 2002 memorandum is consistent with on this important matter. So should Now, while lawyers can hem and haw the views espoused by the State De- my colleagues in the Senate. about what this precisely means, given partment at the time. Let me review this one last time be- the context of the quotation in the Judge Gonzales has told this com- cause it is an important point. Judge paragraph immediately following the mittee that this draft: Gonzales has told this committee in POW analysis, it is logical to conclude does not represent the final advice given to writing that he does not believe the that it means that the U.S. military the President. Geneva Conventions are obsolete and shall accord POW treatment to al- It seems odd to me that our col- quaint. He said so under oath in his Qaida and Taliban detainees unless leagues cannot accept his statement on confirmation hearing, and he said so military necessity dictates otherwise. that. again in writing in response to ques- Let me also make one other thing He continued: tions from Senators. clear. What happened to some detain- Because it does not embody my final views There have also been allegations that ees at Abu Ghraib was not humane as provided to the President, I have not en- Judge Gonzales, because he has worked treatment. We all know that. The dorsed, nor do I have any occasion to dis- closely with President Bush for several Army knows that. Our military knows avow, the tentative judgments about certain years, is somehow incapable of having that. I think all of us here can agree provisions of the Geneva Conventions re- his own opinions and will be unable to with that. It is also clear to me that flected in that draft. give frank legal advice. I recall that the abuses that occurred at Abu Ghraib Now, some will argue Judge Gonzales similar accusations were made over 40 were contrary to the President’s Feb- ought to tell the Senate precisely what years ago with respect to the nomina- ruary 7, 2002, memorandum to treat advice he gave the President on this tion of Robert F. Kennedy to be Attor- them humanely. Those who committed very sensitive issue. The fear I have is ney General of all things. As many these abhorrent abuses can and should that if the Senate demands this infor- Americans know, Robert Kennedy was be vigorously prosecuted and punished, mation in this instance and the White President John F. Kennedy’s brother and they are. Right off the bat, the in- House succumbs to that demand, it will and the brother of our distinguished vestigation took place. And right off undermine the candor with which fu- Senator from Massachusetts and had the bat, they are bringing people to ture White House Counsels commu- previously served as the President’s justice. There is no doubt about that. nicate with future Presidents. I think campaign manager prior to his nomina- I might add, the President is not most people would argue it probably tion to the office of Attorney General. given any credit for the prosecutions of would. That is why these types of con- While there was a good deal of con- Abu Ghraib. The desire of some who al- versations are privileged, and not troversy whether he, too, could be

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S713 independent of his brother as Attorney They focus on the few sentences where mittee 2 months ago that Judge General before he was confirmed, Rob- they say he refused to provide com- Gonzales recused himself from the de- ert Kennedy went on to become a great plete information and ignore all the cisionmaking process of releasing doc- Attorney General, one who was and other sentences in response to some 500 uments because of his pending nomina- still is much admired by many in this written questions to describe at length tion. Judge Gonzales repeated his country. I believe Judge Gonzales, too, all of his knowledge on the wide vari- recusal at his confirmation hearing in can and will exercise that same inde- ety of issues raised by Senators. the first week of January. Obviously, a pendence. Judge Gonzales is not someone who person in Judge Gonzales’s shoes may I listened carefully to Judge is trying to prevent the committee have a short-term incentive to release Gonzales’s responses during the com- from seeing documents. To the con- documents to the committee when his mittee’s hearing, and I know that he trary, Judge Gonzales was instru- nomination is pending. However, the fully understands the differences be- mental in the White House’s release of White House may have a very different tween the role of White House Counsel hundreds of pages of documents reveal- and legitimate view of such release as and the role of the Attorney General of ing the administration’s policies relat- part of the historical relationship be- the United States. As White House ing to the treatment of detainees last tween the Executive Office of the Counsel, in Judge Gonzales’s own June. He helped negotiate among Con- President and the Congress in releasing words: gress, the Department of Defense, the information on, for example, matters I have been privileged to advise the Presi- Department of Justice, and the White pertaining to legal advice to the Presi- dent and his staff. House to declassify and publicly re- dent and the White House Counsel and As Judge Gonzales further explained: lease documents relating to the hu- policy recommendations on matters of As Counsel to the President, my primary mane treatment of al-Qaida and national security from White House focus is on providing counsel to the White Taliban detainees, the application of components. House and to the White House staff and the the Geneva Conventions, the War It makes sense that Judge Gonzales President. I do have a client who has an Crimes Act, the Convention Against would recuse himself during this time agenda, and part of my role as Counsel is to Torture, the Rome statute, as well as period. I believe it was proper for him provide advice that the President can achieve that agenda lawfully. It is a much the Defense Department documents re- to do so. Given Judge Gonzales’s different situation as Attorney General, and lating to specific techniques authorized recusal, it is understandable why he I know that. My first allegiance is going to and the report of the DOD working personally did not conduct a search of be the Constitution and to the laws of the group which assessed the legal policy White House records. But placing the United States. and operational issues relating to de- blame solely on Judge Gonzales is just Judge Gonzales understands that as tainee interrogations in the global war not right. Attorney General, when confirmed, he on terrorism. Senator KENNEDY focuses on eight in- would have, as he describes it, ‘‘a far Frankly, there were good arguments stances where Judge Gonzales did not broader responsibility to pursue justice for withholding some of this informa- conduct a search. What do these re- for all the people of our great Nation, tion or at least making it available to sponses have in common? First of all, to see that the laws are enforced in a Congress in a classified or nonpublic they are all incredibly overbroad. One fair and impartial manner for all forum so that the general public and request seeks production of all notes, Americans.’’ This transition is no dif- our enemies in particular would not be memoranda, e-mail, audio recordings, ferent than the type many in this body so well informed about our interroga- or documents of any kind that reflect have made over the years. People from tion techniques. But the administra- the occurrence and substance of all this body, attorneys, work for all kinds tion and Judge Gonzales wanted to pro- meetings in which specific interroga- of clients and every manner of clients. vide full disclosure to the public and tion techniques were discussed. The re- And the well-trained advocate is al- declassified this information so that quest is not limited to specific docu- ways aware of who his client is. To sug- everyone would know what went on. ments, or documents written by Judge gest that Judge Gonzales is somehow Just last week, Judge Gonzales sub- Gonzales, or received by him. This re- incapable of making this transition is mitted over 250 pages of responses to quest wants every e-mail by anybody more than insulting. It is despicable to written questions after his hearing. in the Federal Government who par- make that suggestion. He is a bright That was after questions were supposed ticipated in a meeting about interroga- guy with a lot of ability, and a record to be cut off. We used to do that in this tion techniques during a war. Come on of which we should all be proud. body. We would give a fair amount of now. As someone who served in private questions, which never amounted to as Another request seeks all notes, practice, as a judge, in political posi- many as these. But just last week memoranda, e-mail, and documents tions, and as an advisor to the Presi- Judge Gonzales submitted over 250 that reflect the CIA’s request for legal dent, his record is testament to his pages of responses—single-spaced advice on how far it could go in con- ability to serve his client well no mat- pages, by the way—to written ques- ducting interrogations, or which inter- ter who that is. I know Judge Gonzales. tions after his hearing. I believe that rogation methods it could use and any I know he will make this transition. I Judge Gonzales attempted to answer responsive actions by the White House guarantee you he is no ‘‘yes’’ man. He the questions and be responsive. Al- Counsel’s Office and the Department of has the character, education, and expe- though the deadline for submitting Justice. Now, you have an overbroad rience to exercise independent judg- written questions expired on January request that holds Judge Gonzales re- ment in the interest of the American 13, 2005, four Democratic Senators filed sponsible not only for things he did not public. additional questions to Judge Gonzales write, but for e-mails written by others There have also been some allega- on January 19, 21, 24, and 25; I under- in two different agencies that he has no tions that Judge Gonzales’s responses stand even maybe up to the present direct supervision over. Let’s get real to the approximately 500 questions time. Judge Gonzales provided written here. posed to him during the course of this answers to all of those questions on or Let me mention some other points nomination process were somehow in- before January 25, 2005. Yet that is still about these requests. In response to complete. These allegations have been not enough. each one of these, Judge Gonzales, to made notwithstanding the fact that Some have tried to make a big deal his credit, never complains that the re- the New York Times characterized out of the fact that Judge Gonzales did quests are unfair and overbroad—even Judge Gonzales’s answers to the com- not personally conduct a search in re- though they are. He responds by saying mittee as ‘‘one of the administration’s sponse to overbroad requests for notes, he has no notes, or that he does not most expansive statements of its posi- memoranda, e-mail, audio recordings, know of any audio recordings, or that tion on a variety of issues, particularly or documents of any kind. What my he is not aware of any responsive docu- regarding laws and policy governing friend from Massachusetts Senator ments. Also, for each of these requests CIA interrogations to terror suspects.’’ KENNEDY fails to tell the American he explains that the materials, if they Some Senators have quoted Judge public, however, is that the White did exist, would fall under a privilege. Gonzales’s answers out of context. House informed the Judiciary Com- Then he says he did not conduct a

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Ask for most humble of circumstances, which ican success stories, which they are, the kitchen sink in the hopes of trap- typifies the struggle every immigrant and claim to personally like and re- ping the nominee with an unartful an- family in this country has gone spect these nominees, at the same time swer, so it can be claimed that he is through, and to not give him this op- we see them excoriated and abused by not forthcoming. In other words, this is portunity when he is fully qualified for partisan politics which, unfortunately, pure, unmitigated politics. it, I think, would be a travesty. Let me I hoped would cease or at least be miti- It is entirely transparent that the conclude by telling my colleagues and gated somewhat by the results of the anti-Gonzales vote is pure politics and the American public that I know election on November 2. nothing more. Alberto Gonzales well. He is a good We saw on November 2 not only the Judge Gonzales is a good man. He has man. He is a fair man. He understands President’s reelection by substantial not tried to hide the ball. There may persecution. He understands prejudice. margins, but we also saw an increase in well be legitimate requests for specific He understands the need to fight back our side of the aisle in the Senate and documents made by members of the Ju- to make it in this life, regardless of all larger numbers in the House. One rea- diciary Committee at a later date as of the obstacles in his way. I believe son I believe that happened was be- we learn more about the abuses at Abu when he is confirmed, Judge Gonzales cause of this debate on the wisdom of Ghraib. There may also be legitimate will make an excellent Attorney Gen- our policies of this Government, par- questions about when and under what eral. He has been fair to everybody on ticularly over the last 4 years. We held circumstances various executive privi- our committee time after time. a popular referendum on November 2 leges apply. I don’t know, there may The Senate should not stand in his and, frankly, the politics of obstruc- be. But this is just not one of those oc- way of becoming the next Attorney tion and anger were repudiated. casions. It is as simple as that. General of the United States. I do not What the American people want and Look, this is not just any nomina- believe it will. I do not believe people expect is that we will get the business tion. This is a nomination for the At- should be voting against this good of the American people done in this body and that we will not degenerate torney General of the United States of man. If people vote against him, we into partisan fingerpointing or name- America. This is the first Hispanic ever have to stop and think, ‘‘Why are they calling, nor obstruction of the kind we nominated for that position, or for any doing that to a man of his quality?’’ have seen occur time and time again of the big four positions in the Cabinet When Judge Gonzales accepted the against this President’s nominees, par- of any President. I am chairman of the President’s nomination for Attorney ticularly the judges who have been Republican Senatorial Hispanic Task General, he said the following: Force. We work with Hispanic people nominated by this President to circuit When I talk to people around the country, courts. all over America who are every bit as I sometimes tell them that within the His- devoted to our country as any citizen We know that while our friends on panic community there is a shared hope for the other side of the aisle did have an who has ever been in this country. I an opportunity to succeed. Just give me a opportunity for self-examination and personally love Hispanic people. I can chance to prove myself—that is a common reappraisal on November 2, apparently truthfully say I love this man as well prayer for those in my community. they have been unable or unwilling to because he is a good man. I have seen I ask my colleagues to do exactly change their habits and their destruc- him give good advice. I have seen him that—give Judge Gonzales a chance to tive approach to this process. Unfortu- work very hard to try to be accurate. I prove himself. He will not let you nately, it causes good men and women, have seen him cooperate with our com- down. I urge my colleagues to vote for such as Al Gonzales and Condoleezza mittee time after time. I have seen him Judge Gonzales to be the next Attor- Rice, to have to go through a process keep his cool in the face of some of the ney General of the United States, and that, frankly, does not dishonor them we will be very wise if we do so. outrageous requests that were made but I think fails to bring honor to this I yield the floor. over the time I was chairman of the institution and to those who oppose The PRESIDING OFFICER (Mr. Senate Judiciary Committee. I have their nominations. seen him run the White House Coun- CRAPO). Under the previous order, the There is no question that we have an sel’s Office, and he has done a terrific Senator from Texas is recognized. obligation in the Senate to seriously job. He is a good administrator, a good Mr. CORNYN. Mr. President, I find it conduct our advice and consent func- lawyer. He has tremendous judicial ex- ironic that we are debating the nomi- tion, and certainly no one is suggesting perience. nation of this fine nominee for Attor- that any Senator should not vote their This man, regardless of his back- ney General and hearing some vehe- conscience. That is not what we are ground, should be confirmed imme- ment criticism of not just him but of talking about. What we are talking diately as Attorney General of the this administration and its policies in about is when we cross the line that United States of America. Frankly, I Iraq and combating the war on terror, should not be crossed between doing know my friends in the Hispanic com- and when on Sunday we saw free Iraqis our duty, sent here as we were by the munity, and Hispanic people all over conduct their first democratic election people of our various States, and en- America, are watching this debate, and in many years, with the kind of turn- gaging in partisan politics on the floor, they are sensing something very unfair out that, frankly, brings a little em- particularly on nominations, it is un- going on here. Every Democrat who op- barrassment to those of us in America fortunate. posed this man on the Judiciary Com- because they had such a tremendous I want to speak now not about this mittee—virtually every one, as far as I outpouring of emotion and support for caricature that has been created by can recall—talked about his great and the opportunity to rise up against their those who oppose this nomination, not humble background, how he came from oppressors, thanks to coalition forces the person I really see described by his nowhere and accomplished all he did, and the sacrifices made by the Amer- opponents that I do not recognize, but and what a good man he is. But they ican people and our allies, and be able I want to talk about the real Al always have some reason to vote to do what we do here on a regular Gonzales. against him. basis, and that is let the will of the I am pleased Judge Alberto Gonzales I suspect there are a lot of politics American people be known through the happens to be a friend. He is a talented being played here. We all know Alberto process of electing our representatives. lawyer and a distinguished public serv- Gonzales has constantly been men- But here we are, and shortly on the ant and a good man. He also happens to tioned by the media and everybody else heels of the debate on the nomination be a good Texan and an inspiring as someone who might ultimately wind of Condoleezza Rice as Secretary of American success story. I am proud to up on the Supreme Court of the United State. Of course, what we are told by call him my friend.

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The reason Alberto Senate, who support Judge Gonzales’s just is because I worked with him and Gonzales was successful in achieving nomination, as well as groups from all alongside him and had a chance to ob- his educational dreams is because of around the country that believe this serve him day in and day out, as he the love and support of his family and nomination should not hit a glass ceil- first functioned as the President’s because of the hard work that in Amer- ing but, rather, be an example for all then-general counsel when he was Gov- ica ought to be rewarded and not dis- Hispanics who look for reward for their ernor of the State of Texas, when he couraged. hard work and labor in American soci- then served in the office of secretary of Indeed, this is a man who not only, ety and which see this as an oppor- state for the State of Texas, and then after he went to college, went on to tunity to elevate one of their own as a was appointed and then elected to work in one of the most prestigious law role model to young boys and girls as serve on the Texas Supreme Court, firms in the United States of America, they go to school and work hard and which he did for a couple of years be- but was one of its first minority part- try to achieve their American dream. fore the President of the United States ners. Yes, it was this young lawyer, The National Council of La Raza, the asked him to leave his home behind after about 10 years of practice, who Hispanic Alliance for Progress Insti- and come to Washington to work with was first identified by an aspiring Gov- tute, the Texas Association of Mexican him in the challenges of the Oval Of- ernor of the State of Texas, George W. American Chamber of Commerce, the fice, to serve as his legal adviser and Bush. New America Alliance, the American- White House Counsel. It cannot be lost in this debate, as it Latino Business Initiative, the Na- Little did this President know and goes on today, tomorrow, and Thurs- tional Association of Latino Elected little did Alberto Gonzales know that day, that Judge Alberto Gonzales is and Appointed Officials, the Congres- September 11 would forever change the truly an inspiration to all of us who sional Hispanic Conference, the League course not only of American history still believe in the American dream. of United Latin American Citizens, the but their lives in such a dramatic and His nomination to be the 80th Attor- Hispanic National Bar Association, the profound way. ney General of the United States of Latino Coalition, the National Associa- The context I think the opponents of America, the chief law enforcement of- tion of Latino Leaders, the United this nomination fail to take into ac- ficer of this great country and our first States Hispanic Chamber of Commerce, count is how much America and our Hispanic Attorney General, that story the Hispanic Association of Colleges way of life was threatened by those should by all accounts have a happy and Universities, MANA, a National who had no regard for human life, who ending. But unfortunately that is not Latino Association, the National Asso- had no regard for the law of war, but the way Washington works. Once ciation of Hispanic Publishers, the His- rather than attack our military in a again, we will see that this confirma- panic Roundtable, and the National As- battlefield chose to attack innocent ci- tion process is unnecessarily partisan, sociation of Hispanic Firefighters en- vilians, resulting in the massive loss of even cruel to those who have selflessly dorse Alberto Gonzales’s nomination to human life in Washington, Pennsyl- dedicated themselves to serving the serve as this Nation’s 80th Attorney vania, and in New York and resulting American people. Only in Washington General. in almost a trillion dollars’ worth of would a good man such as Alberto I don’t want those listening by ref- economic loss to the American econ- Gonzales, the personification of the erence to a solely Democratic caucus omy. American dream, someone who has in the House of Representatives, by Not only is this an extraordinary pulled himself up by his bootstraps by hearing they do not support his nomi- nominee and a good man, but I suggest dint of hard work and determination to my colleagues that this President nation to be under the misapprehen- and the love and support of his fam- and his advisers, including his legal ad- sion that Latinos in this country do ily—only in Washington would we see viser, Alberto Gonzales, were met with not overwhelmingly support this nomi- that a man such as this would get challenges they never could have imag- nee, because they do. raked over the coals for doing his job. I would point out finally, with regard ined they would have to undertake. It This must be a little disorienting to to the Hispanic Caucus in the House, is important to have that context as Judge Gonzales and his family, be- the solely Democratic-member caucus, we judge the work he did. As I say, I have known Alberto cause, frankly, he comes from that they didn’t support Miguel Estrada’s Gonzales for many years, and I can tell part of America that believes America nomination to the District of Columbia you the media is absolutely right when should always be a place where hon- Court of Appeals, either. Frankly, it is they call him the man from Humble. esty, determination, and diligence are beginning to be an unseemly trend. For those who are not from Texas, that rewarded. Let me talk a minute about the Ge- refers to Humble, TX, where he was I want to talk a little bit about some neva Convention because this is, as raised, but also the fact that he is a of the specifics of the accusations made many legal matters are, somewhat con- modest, self-effacing man. He is the son against Judge Gonzales, because I don’t fusing. Frankly, we get down so far of migrant workers. His childhood think we can take for granted that this into the weeds on this that people’s home, where his mother still lives is particularly well understood. They eyes glaze over and roll back into their today, was built by his father and his have to do with arcane matters, albeit heads and they quit receiving any addi- uncle. important matters such as the Geneva tional information. But the bottom As a child, he earned a little bit of Convention and the law of war, with line is this: Judge Gonzales advised the money selling soft drinks at Rice Uni- the limits on interrogation techniques President that all detainees in the war versity stadium and there, as he looked that can be humanely employed by the on terror—whether they be al-Qaida over the football games being played in United States as a matter of policy, fighters, whether they be Taliban, that stadium, he dreamed of one day but first, I wish to point out that not whether they be the Iraqi military possibly going to school at Rice Uni- only does a majority of the Senate when we went into Iraq; all—as a mat- versity. stand ready to vote and confirm this ter of policy of this Government, be Alberto Gonzales was the first person particularly well-qualified and distin- treated humanely. In other words, in his family to attend college. Because guished nominee, there are a number of Alberto Gonzales, this President, this of the love and support of his family, groups around the country which sup- Government, and all of its officials his hard work and determination, he port his nomination. I heard—and this have said we oppose torture in any graduated from Rice University. In happens to be a pet peeve of mine—that form as a means to get intelligence other words, his dream came true. someone said the Hispanic Caucus in from detainees, whether they be classi- Then he went on to graduate from Har- the U.S. House of Representatives op- fied as unlawful combatants or are cov- vard Law School, two of the most pres- poses Alberto Gonzales’s nomination. ered by the Geneva Convention. tigious institutions in this country. What that person did not say is that Indeed, that is what Alberto Gonzales Was it because he was born with a the Hispanic Caucus in the House of said in a memo he wrote to the Presi- silver spoon in his mouth or was a Representatives is composed only of dent dated February 7, 2002, and which

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Berg who was captured by terrorists, Taliban are unlawful combatants is You would never know it by some of who then was beheaded on camera, and clearly correct. the statements, some of the that film was shown to the entire I would say to those who have been misstatements and some of the world. loose with the law and facts with re- disinformation that has been spread Our enemy does not play by the gard to the Geneva Convention, they about this nominee. Unfortunately, it rules. They are not constrained by the need to doublecheck their information, has been harmful to our effort in the law of war or the Geneva Convention. because time and time and time again war on terror. This should come as They believe it is perfectly acceptable Judge Gonzales’s legal advice to the fairly straightforward information, but to kill innocent civilians by suicide President has been shown to be correct. let me just emphasize it. I asked this bombing attacks, as we have seen. And But I must say again, this is not the question repeatedly during the course they believe it is perfectly acceptable same as saying we are going to treat of the hearings we had with Judge to behead unarmed hostages as a these detainees in an inhumane fashion Gonzales. I said: Does anybody here means to carry out their reign of ter- or that we are going to engage in tor- take the position that America should ror. ture. We are not. But some have in- not use all lawful means to obtain ac- On the matter of the Geneva Conven- flated those two, saying if the Geneva tionable intelligence that would save tion, it is clear that it is important for Convention doesn’t apply, what you are American lives? Does anyone take the us to get actionable intelligence using saying is there are no rules and any- position that we should not use all law- humane and legally acceptable means. thing goes, which is absolutely false. ful means to obtain actionable intel- Any suggestion that Judge Gonzales That is not what I am saying. That is ligence that would save human lives? believes inhumane or illegal means are not what Judge Gonzales said, that is Thankfully, notwithstanding some of acceptable is simply not supported by not what the President says, and that the rhetoric we have heard and maybe any facts. is not the policy of the U.S. Govern- some of the confusion we have heard Frankly, on the matter of the appli- ment. propagated during this debate, every- cability of the Geneva Convention, One last thing on the Geneva Conven- one said: No, we agree with that. You Judge Gonzales is right. You don’t tion. My father’s generation, which should use all lawful means to get ac- have to take my word for it. was part of the ‘‘greatest generation’’ tionable intelligence to save American First, I heard the Senator from Utah, that fought in World War II—there are lives. Senator HATCH, former chairman of the a lot of television shows and movies What I was thinking back to was a Judiciary Committee, point out that that depict how POWs are maintained. hearing we had before the Senate al-Qaida never signed the Geneva Con- One of them I remember watching Armed Services Committee on May 14, vention. But people may say, Well, when I was a kid was called ‘‘Hogan’s 2004. I asked that question of two of our that is a technical matter but it is part Heroes.’’ You know what the Geneva Nation’s most distinguished military of it. Convention is designed to do—to pro- leaders, MG Geoffrey Miller, who was I will tell you that the Red Cross’s tect American soldiers by providing re- in charge of the detention facilities own guidelines, which I hold here in ciprocal treatment by nations that we there at Guantanamo, where many of my hand, have four requirements, four are at war with so our soldiers, sailors, the al-Qaida fighters are kept who have conditions of lawful combat, none of marines, and airmen will be kept in a been the subject of news reports and which al-Qaida meets. humane and appropriate fashion. But, some discussion and litigation. I also Here again I ask: Does anyone in this of course, that presupposes the Geneva asked GEN John Abizaid, who is the body or anywhere across the country Convention applies, and that your commander of the U.S. central com- seriously argue that al-Qaida complies enemy respects the law of war and mand, including Iraq. I will just read with the law of war? Judge Gonzales is shows some sort of self-restraint, some- what General Abizaid said: not binding himself in his legal conclu- I will start with a question. thing al-Qaida and the Taliban have sion about the applicability of the Ge- I said: ‘‘In your opinion, General Mil- not shown at all. neva Convention. Even though you say ler, is the military intelligence you But does anybody believe that we have been able to gain from those who it might not meet the letter of the ought not to be able to entice detainees have recruited, financed and carried rules set out in this book I held up, the to respond by offering creature com- out terrorist activities against the International Committee of the Red forts or other preferential treatment? United States or our military, has that Cross Guidelines on the Geneva Con- For example, when I went to Guanta- intelligence as a consequence that you vention, I would suggest this is impor- namo and observed detention of al- gained saved American lives?’’ tant. Three Federal courts have con- Qaida terrorists there, it was explained General Miller said: ‘‘Senator, abso- cluded that Judge Gonzales’s legal ad- to me by General Miller that they lutely.’’ vice was correct. It has also been en- would sometimes use a little better So I asked General Abizaid, who was dorsed by numerous legal scholars and food, maybe a change of the diet, per- also there on the same panel, I said: international legal experts across the haps allow people to cook on a grill ‘‘Would you confirm for us, General political spectrum, as well as the 9/11 outside and sort of encourage them to Abizaid, that it is also true within the Commission, as well as a report given cooperate by more appetizing food, or Central Command’’—which includes by the Schlesinger Commission, which maybe even move them from an indi- Iraq, Afghanistan, and I think it covers was one of the commissions appointed vidual cell into a community cell block 26 countries. I may be off one or two. to review the detention operations where they could associate with one But General Abizaid, the commander both at Guantanamo Bay and Abu other and have a little greater freedom of U.S. Central Command, said: ‘‘Sen- Ghraib. of movement. Those were some of the ator, I agree that is true. And I’d also Finally, in addition to those deci- techniques being used there which like to add that some of these people sions by the Federal court, the 9/11 would not be available if the Geneva we are dealing with are some of the Commission, and the Schlesinger re- Convention applied. most despicable characters you could port, I would say a brief filed in a re- Surely those who oppose this nomi- ever imagine. They spend every waking cent Supreme Court case by former nation cannot believe that al-Qaida moment trying to figure out how to de- Carter administration officials, former terrorists deserve to be treated better liver a weapon of mass destruction into State Department legal advisers, judge than an American citizen accused of a the middle of our country, and we advocates general, military com- crime, which is in essence what they should not kid ourselves about what manders, and liberal international law are saying. they are capable of doing to us and we scholars, has agreed with Judge I know I have dwelled upon this sub- have to deal with them.’’ Gonzales’s conclusion about the appli- ject for a while, but let me conclude on

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So I suggest some of the op- pened at Abu Ghraib, concluded: to terrorists. President Reagan said: ponents of this outstanding nominee, if No approved procedures called for or al- ‘‘We must not, and need not, give rec- they do not like what the torture stat- lowed the kinds of abuses that, in fact, oc- ognition and protection to terrorist ute says, if they do not like the effort curred. There is no evidence of a policy of to try to understand and explain it, abuse promulgated by senior officials or groups as a price for progress in hu- military authorities. manitarian law.’’ We did not adopt maybe they ought to look in the mir- If there is no evidence of a policy of that amendment but, indeed, we re- ror and maybe we ought to go back to work and be more clear about what we abuse promulgated by senior officials jected it. or military authorities, and if there is Notably at the time, even the New mean when we say torture is illegal no evidence whatever that Judge York Times and the Washington Post and what the limits are of that. Gonzales was in any way responsible agreed. The Times called the Presi- Again, everyone agrees—or at least I for this, why are we talking about Abu dent’s position ‘‘sound’’ while the Post have not heard anyone object yet—to the goal of using all lawful means to Ghraib during Judge Gonzales’s con- said it was right and even accused op- firmation? Again, I suggest this is not ponents of that of hijacking the Gene- obtain actionable intelligence to save American lives. And how can you de- about Alberto Gonzales and his fitness va Convention. to serve. This, unfortunately, has But, my, how far we have come to termine what those lawful means are crossed the line into partisan politics, this hyperpoliticized environment unless you examine the treaties and the statutes and other laws that deal a place we should not go. where the facts and the law seem to I am proud of my friend, Judge take a backseat, and continuation of with what the permissible limits of in- terrogation techniques are and use Alberto Gonzales. He is a source of some of the political campaign tactics great inspiration and pride to his fam- that we saw before November 2 have that as a bright line to determine what is legal, permissible, what is humane ily, his friends, and to the great State now carried over after the election not of Texas from where we both come. directed only at the President but now and what is not. Let me mention, some have again Time and time again, Judge Gonzales directed at his nominees. has done his duty in the war on ter- All this support from multiple Fed- tried to confuse the issue by taking the criminal conduct of a few at Abu rorism. It disheartens me to see him eral courts, the 9/11 Commission, the Ghraib prison and suggesting that held up to ridicule, distortions, and Schlesinger report, liberal inter- somehow this reflects the policy of this outright lies for being the patriot that national legal scholars, Carter admin- administration and of the U.S. Govern- he is. istration officials, even the New York ment. I also will speak, because I know oth- Times and the Washington Post, and Not only is that suggestion an insult ers will address this—I have not been yet Judge Gonzales is being criticized to all law-abiding Americans, and par- able to listen to all of the debate, but by opponents of his nomination for ticularly those men and women in uni- I have quite a bit of it. I know this taking the exact same position with re- form who are serving honorably and matter came up in the committee and gard to the applicability of the Geneva who made the celebrations following it is important to set the record Convention. the election in Iraq on Sunday possible, straight. Judge Gonzales appeared be- All I can say is, it is only in Wash- but to try to paint with such a broad fore the committee and answered ques- ington. brush and to say this is a matter of pol- tion after question by the members of Let me touch on one other legal issue icy or practice and nobody cares what the Senate Judiciary Committee. Of that gets down into the weeds. Judge the law is and, you know what, we are course, that was broadcast on C–SPAN Gonzales has been criticized for trying going to take a few bad actors and peo- for people all across the world to see. to understand what Congress meant ple who cross the line between legality My own impression was that Judge when it passed the law prohibiting the and illegality and we will basically Gonzales did his very best to answer use of torture, the so-called torture suggest everybody is in the same big the questions that were asked of him. statute. The memo he is being criti- pot. That pot is people who have com- Some members of the committee pur- cized for he did not write, and the lan- mitted criminal acts against detainees ported to be dissatisfied with the op- guage defining what was torture and and prisoners at Abu Ghraib. portunity they were given to ask ques- what was not torture that he is being It is safe to say that everyone agrees tions, and they had additional ques- criticized for, he did not write that Abu Ghraib was a shameful episode in tions to ask. I hold in my hand more statute either. Congress wrote that our Nation’s history. Yet again some than 400 questions—and these are on statute. want to actually exploit that tragedy, single-spaced pages—more than 400 If Judge Gonzales, the officials at the that shameful episode by a few, for po- questions asked of Judge Gonzales Department of Defense, if the U.S. Gov- litical points. Abu Ghraib is a serious after the hearing, and they generated ernment, including this administra- matter. It should be treated seriously. 440 responses encompassing 221 single- tion, had so little regard for the law Indeed, it has been. spaced pages. After the New York and basic human norms like humane The Senate Armed Services Com- Times argued that Judge Gonzales was treatment of detainees, why in the mittee has held hearing after hearing very forthcoming in his responses to world would they go through all of this after hearing to try to get to the bot- the committee, there was another re- trouble to try to figure out what ex- tom of what happened. The U.S. De- quest made, and at that time an addi- actly did Congress intend and what are partment of Defense has conducted at tional 54 written responses were pro- the limits? The reason is not to find a least eight different investigations to vided on 27 single-spaced pages. There limit so you can find a way around the try to figure out what went wrong and were requests for copies of documents, statute, it is to find how do you comply how to make sure it does not happen some of which I have in my hand. I do with the law because Government offi- again, but to also hold those who cross not claim these are all of them, but I cials know if you violate the law, you, the line into criminal conduct account- do believe it is a representative sample too, are accountable in a court of law. able. Indeed, we have seen that happen. of what Judge Gonzales was actually Frankly, today—maybe it is a sign of Abu Ghraib should be treated seri- provided. I will get to who provided it the times—even military commanders, ously and not politically. Even the in a minute.

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On one occa- ceived the vote of 85 Members of the tant responsibilities that I think are in sion he gave 440 answers in a 227-page, Senate in a bipartisan fashion. But I conflict with American values. The pri- single-spaced response, again provided was troubled when, even though sev- mary issue I am concerned about and additional written responses in 27 addi- eral members of the Senate Judiciary that I find should be of concern to the tional pages, and he also provided more Committee said they would likely be American people is his attitude when than 200 documents to go along with voting in favor of Alberto Gonzales’s he was the President’s Counsel on the his answers. nomination, they have now changed development of a policy of torture, So I think any fairminded person their tune. We saw a strict party-line which has been recognized by the Fed- would have to conclude Judge Gonzales vote in the Senate Judiciary Com- eral Bureau of Investigation, by the has tried his best to be responsive. I do mittee: all Republicans supporting his Central Intelligence Agency, by the De- think it is important to point out, as I nomination, all Democrats opposing it. fense Intelligence Agency, by the Red believe Senator HATCH did earlier, that So, unfortunately, I was left with the Cross. actually Judge Gonzales recused him- conclusion that we have seen now There is no question that he was at self from providing these responses or again a continuation of the bitter poli- the epicenter in terms of the develop- answering the questions. In other tics of this confirmation process which ment of that policy. I think that is words, he felt it was improper for him not only I think fails to bring honor to what is at issue; at least it is for me. to have a personal hand in crafting the this institution but which I think does And I think it is important that our responses to the document requests or a real disservice to the honorable men colleagues have an opportunity to lis- necessarily questions directed to the and women who agree to serve in im- ten to the record. White House or to some other party. portant positions such as Secretary of I listened to my friend and colleague So many of the responses, particu- State and Attorney General. from Texas speak on his behalf, and I larly to document requests, came from But I also say it does not bode well certainly respect his presentation. But the White House Counsel’s Office pro- for the hoped-for beginning of a new I think the facts speak otherwise on a vided by, I believe it was Mr. Leitch, Congress on the President’s judicial number of important points. that Judge Gonzales had actually no nominees. We know the President in- Earlier the chairman of the com- hand in. But that was in an effort on tends to send up 10 nominees who were mittee, Senator SPECTER, said in ref- his part to try to be fair and even- previously filibustered by the other erence to the correspondence from the handed and to basically take himself side. I would have thought that after Department of Justice that he was not out of any controversy and leave it up the election they would have reconsid- satisfied with the Justice response to to the committee, those requesting the ered that course. But here again, I Senator DURBIN’s and my request for documents, and the White House. I be- think we have seen an unfortunate con- the memos relating to a New York lieve that was appropriate. tinuation of the tactics and the bad Times story, again related to torture. So time and time again, we have seen habits that perhaps our opponents in And I am certainly not, either. that the real Al Gonzales is not the this debate have lapsed into. And per- What the Justice Department said caricature that has been painted by his haps they know no other way to pro- was that they brief the Intelligence opponents during this confirmation ceed, other than through obstruction Committee on these memos and the process. Time and time again, we have and through mischaracterization of materials then are classified. That does seen that not only do the American this nominee’s fine record. We should not help the rest of us. We still need to people view Alberto Gonzales as a per- confirm Alberto Gonzales as the 80th know whether the Times story was ac- sonification of the American dream, he Attorney General of the United States, curate. We are all cleared, obviously, is a source of pride and admiration for and do so overwhelmingly. as Members of the Senate to classified Hispanic organizations and Hispanics Thank you, Mr. President. information. We need the information all across this great land of ours, as he The PRESIDING OFFICER (Mr. MAR- to decide on the Gonzales nomination, well should be. TINEZ). Under the previous order, the and we should have it before the vote. Notwithstanding what we have heard Chair now recognizes the Senator from In the final paragraph of the note from opponents of this nomination, and Massachusetts. from the Justice Department, it says: of this administration, Judge Alberto Mr. KENNEDY. I thank the Chair. I Finally, the Office of Legal Counsel in its Gonzales has condemned the use of tor- talked to the floor manager and indi- recent memorandum of December 30 stated ture on detainees, prisoners of war, cated I was going to ask unanimous we have received this office’s prior opinions anyone in American custody. Indeed, consent that the Senator from Florida, addressing issues involving interrogation of he has insisted, as a matter of Amer- Mr. NELSON, be recognized and per- detainees and do not believe that any of ican policy and law, on humane treat- mitted to speak for 15 minutes after I their conclusions would be different under ment. But he also believes, as the true yield the floor. the standards set forth in the memorandum. patriot he is, that it is important we Mr. SPECTER. Mr. President, is So the Justice Department piles se- not lose the overall context of where there a 15-minute time limit on how crecy upon secrecy. this is happening and how this is hap- long Senator NELSON will speak? Then in a letter received today, they pening. Mr. KENNEDY. That was the time he refused to provide the second Bybee Alberto Gonzales believes, as I be- requested, and that is the time I ask memo. lieve everyone—at least no one ob- unanimous consent for. Justice says basically what the ad- jected here on this side of the ocean— Mr. SPECTER. Sounds good. ministration has said: Don’t worry, it who supports freedom and democracy The PRESIDING OFFICER. Without is taken care of. You in the Senate for the Iraqi people believes, it is im- objection, it is so ordered. don’t have to worry very much about portant we continue to use all lawful Mr. KENNEDY. I thank the Chair. it. means to obtain actionable intel- Mr. President, as others have said, I find that troublesome. ligence to save American lives and to this is an extremely important nomi- Mr. SPECTER. Will the Senator from help ensure our success against the in- nation. I think all of us in this body Massachusetts yield? surgents who still plague Iraq. take our responsibilities seriously. Mr. KENNEDY. I am glad to yield I believe that on fair analysis by Those of us who have expressed some briefly. those who would listen to the facts and concern and reservation, even opposi- Mr. SPECTER. I think the Senator the arguments on both sides of this tion, to this nominee are filled with ad- misunderstood me. I did not say that I particular debate, there is only one miration about his own personal story. was dissatisfied with what the Depart- reasonable, nonpolitical conclusion, I have said at other times, I wish I ment of Justice had submitted. What I

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S719 did was to ask them to respond to the matchless value, because they bear the randum for Alberto R. Gonzales, Coun- letter which I received this morning image of the Maker of Heaven and Earth. sel to the President.’’ The world is watching to see if our actions from you and Senator DURBIN, and they The first two sentences read: match our rhetoric. responded with a letter which I have You have asked for our Office’s views re- put in the RECORD where they have said How can the Senate possibly approve garding the standards of conduct under the that the second memo was not a memo the nomination of Mr. Gonzales as At- Convention Against Torture and the Anti- that went to Judge Gonzales, but it torney General of the United States, Torture Statute passed by Congress in 1994. was a memo that went from the De- the official who symbolizes our respect As we understand it, this question has arisen partment of Justice to another client for the rule of law, when Mr. Gonzales in the context of the conduct of interroga- tions outside the United States. who had inquired as to what were the is the official in the Bush administra- parameters of appropriate questioning. tion who, as the White House Counsel, After its release in August 2002, the And the Department of Justice said advised the President that torture was memoranda became the official policy that it had classified information and an acceptable method of interrogation on interrogations by the Defense De- 1 they would not release it and that it in Afghanistan, Guantanamo, and Iraq? partment and the CIA for 2 ⁄2 years, had been identified in previous cor- Torture is contrary to all that we until it was repudiated just last month respondence with Senator LEAHY and stand for as Americans. It violates our at the last minute on the eve of Mr. that it had been the subject of a brief- basic values. It is alien to our mili- Gonzales’s nomination. ing of a chairman of a relevant com- tary’s longstanding rules and tradition. Yet, Mr. Gonzales refused to tell us mittee on the customer client. We send our men and women in the anything about how the Bybee- I think all of this may boil down to a armed services into battle to stop tor- Gonzales memorandum was written request by the CIA—I am speculating ture in other countries, not to partici- and why he ordered it. We know from now; I want that clear for the record pate in it themselves. press reports that the C.I.A. asked him because that is not what the letter These values did not change or be- for advice on how far the agency could said—in that there was later a briefing come less relevant after 9/11. Ameri- go in interrogating detainees. In July to the chairman of the Intelligence cans did not resolve to set aside our 2002, he held meetings with other ad- Committee. So the matter did not go values or the Constitution after those ministration officials to discuss how to to Judge Gonzales, and that is a reason vicious attacks. We didn’t decide as a legally justify certain interrogation for not making the disclosure because nation to stoop to the level of the ter- methods. He refuses to tell us anything he did not actually receive it. But I rorists. To the contrary, Americans about those meetings. thank the Senator from Massachusetts have been united in their belief that an I have here the questions I had sub- for letting me comment. But I had not essential part of winning the war on mitted, which were filed on January 18: said that I was dissatisfied with what terrorism and protecting the country Did you participate in meetings where spe- the Department of Justice had done. for the future is safeguarding the ideals cific interrogation techniques were dis- Mr. KENNEDY. Mr. President, this is and the values that America stands for cussed? all about the issue of torture. We are at home and around the world. I will include the full answers, but in- talking about torture and the role that Americans agree that torture is and cluded in the answer is this: Mr. Gonzales played in the develop- should remain beyond the pale. A re- For me to provide details about the meth- ment of the dramatic change in Amer- cent pole in USA Today showed that ods of questioning terrorists mentioned in ican policy that overrode statutes that Americans strongly disapprove of the meetings that I attended would entail dis- had been passed in the Senate and trea- interrogation tactics that have been cussing classified information, and I am not ties which the Senate had signed. It is used in Iraq, Afghanistan, and Guanta- at liberty to do so. Could you tell the positions taken by the about torture. He is the legal counsel namo, including the use of painful stress positions, sexual humiliation, individuals present at the meetings when for the President. I will get back into these topics were discussed? the history of his role in this. But to threatening prisoners with dogs, Any meeting of the type you described, dismiss a relevant document that is threatening to ship them to countries any records reflecting the information you about torture, that is related to the known to practice torture. The Amer- specify would involve predecisional delibera- subject matter of Mr. Gonzales, and ican public has held fast to our most tions, and I am not at liberty to disclose. think that we don’t have an oppor- basic fundamental values. How could What are predecisional deliberations? tunity or right to review that, I find our Government have gone so wrong? Is that executive privilege? If so, why troublesome. I don’t know what the ad- Mr. Gonzales is at the center of a tor- don’t they say it? If not, he has a re- ministration is attempting to hide. I ture policy that has run roughshod quirement, and the committee should will come back to that later in my over the values that Americans hold so not have passed them out unless he was presentation about the failing of the dear. On issue after issue in developing going to answer the questions. responsiveness of Mr. Gonzales on this policy he has endorsed expediency Then it goes on: over the rule of law. He adopted an ab- these issues. It seems to me that any Identify any notes or memoranda reflect- fair reading of this memoranda, of the surdly narrow definition of torture in ing the CIA’s request, any responsive actions questions that Senator DURBIN and I order to permit extreme interrogation by your office and the Department of Jus- asked, and reading of the Department practices. He advocated an tice. of Justice memorandum would find unjustifiably expansive view of Presi- Any meeting of that type would involve them completely unresponsive. If that dential power, purporting to put the predecisional deliberations and I am not at executive branch above the law. He ig- liberty to disclose. is not what the chairman of the com- Well, in preparation for your hearing, or mittee says, I say it. I will move on. nored plain language of the Geneva Conventions in an attempt to immu- since the hearing, did you review documents This is one of the most important relating to the Bybee memorandum and its votes the Senate will take this year. nize those who may commit war history? The issues raised by Mr. Gonzales’s crimes. He continues to push a discred- I have conducted no search to the extent nomination go to the heart of what ited interpretation of our treaty obli- the documents requested may exist; more- America stands for in the world and gations to permit the CIA to commit over, they would involve deliberative mate- the fundamental values that define us cruel, inhuman, and degrading acts rial and I am not at liberty to disclose. as a nation: our commitment to indi- outside of the United States. He refuses I listened to my colleagues on the vidual dignity, our respect for the rule to be candid about his interpretations, other side talk about all of the ques- of law, and our reputation around the policies, and intentions. tions asked, and I have 4 pages, 5 world as a beacon for human rights, The administration’s policy on tor- books, 16 documents. These are the an- not as a violator of human rights. ture was established in August of 2002 swers. This is all part of the record. ‘‘I President Bush said it well in his in- in a Justice Department document am not at liberty to disclose,’’ he says. augural address last month: called the Bybee or, more accurately, It goes on: From the day of our Founding, we have the Bybee-Gonzales memorandum. The Identify notes or correspondence reflecting proclaimed that every man and woman on memorandum was written at Mr. advice or assessments, recommendations and this earth has rights, and dignity, and Gonzales’s request. It reads: ‘‘Memo- your views on these issues.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S720 CONGRESSIONAL RECORD — SENATE February 1, 2005 Answer: Mr. Gonzales refused to answer other nominations, since such materials go to the I have not conducted a search. questions and requests on the grounds heart of the qualifications of the nominees that they would involve ‘‘classified in- to serve in the sensitive and important posi- The issue was torture. tions which they have been nominated for. I have not conducted a search. Any records formation,’’ ‘‘predecisional’’ or ‘‘inter- reflecting the information you specify would nal deliberations,’’ or ‘‘deliberative As far as we know, until the Depart- involve deliberative material, and I am not material’’ None of these grounds is suf- ment released its revised version of the at liberty to disclose. ficient. There is no legal prohibition memorandum last month, the Bybee There it is, Mr. President. I will not against providing classified material to memorandum was the official and de- take the time to go on. I will include Congress. It’s routinely provided to finitive Justice Department opinion on those questions in the RECORD. They Congress and discussed in closed meet- the definition of torture, on the legal conducted a word search about torture, ings. There is no recognized privilege defenses for those who commit torture, another word. It didn’t kick out and for ‘‘predecisional’’ or ‘‘deliberative’’ and on the power of the President to they said: We conducted a complete materials. The only exception is in the override laws and treaties on torture. search, and this is the best we can do rare case where the President himself Given the recent New York Times ar- for his answers. It is an insult to not decides that his interest in secrecy out- ticle, it may be that in addition to the just the Senate of the United States weighs the public interest in disclo- second Bybee memo, which we do not but the American people on the issue of sure, and he himself invokes executive have, there are other memos on torture torture. privilege. That hasn’t happened here. that the White House refuses to dis- We are talking about basically the It was clear when Mr. Gonzales was close. single issue that is involved in the re- nominated that his involvement in the Harold Koh, a leading scholar of marks I am making, about his role in policy on prisoner detention and inter- international law and Dean of the Yale the development of torture. Talk about rogation would be a major concern of Law School who served in both the values in this country, this is torture. the Senate, and that the Senate would Reagan and Clinton administrations, He says he can’t remember what spe- need full information and materials on calls the Bybee memorandum the most cific interrogation methods were dis- this subject. Serious abuses of detain- clearly legally erroneous opinion he cussed. ees occurred in Iraq, Afghanistan, and has ever read. As he told the Judiciary He can’t remember who asked for the Guantanamo. Mr. Gonzales’s role in de- Committee: Justice Department’s legal advice in veloping their legal justification goes If the counsel for the President receives the first place. to the heart of the issue whether he He can’t remember whether he made such an opinion, you would have expected should be confirmed as the Nation’s him to do at least one of two things: First, any suggestions to the Department on chief law enforcement officer. reject it on the spot and send it back or, sec- the drafting of the Bybee-Gonzales If we vote to confirm this nominee ond, send it to other parts of the government Memorandum, although he admits that without insisting on answers to our and have them give a second opinion, par- ‘‘it would not be unusual’’ for his office Questions, we’ll be abdicating our ad- ticularly the State Department which, I be- to have done so. vice-and-consent responsibility and lieve, following the policies in the U.S. Re- He doesn’t know how the memo was weakening our oversight function pre- port on the Convention Against Torture, forwarded to the Defense Department cisely when it is needed most. would have said that the opinion is flatly and became part of its ‘‘Working Group The Bybee-Gonzales memorandum wrong. Report’’ in April 2003, which was used was not a law review article or news- Instead . . . that opinion was allowed to to justify the new interrogation prac- become the executive branch policy, was in- paper op-ed article. As Mr. Gonzales corporated into the DOD working group re- tices at Guantanamo. Those practices, himself has said, it was the definitive port, and remained as executive branch pol- in turn, to use the obscure word re- legal opinion by the Justice Depart- icy for some 21⁄2 years, during which time I sorted to by the administration, some- ment on the rules on torture for the believe that a permissive environment was how ‘‘migrated’’ to U.S. military oper- entire executive branch of the Govern- inevitably created. ations in Afghanistan and Iraq, as if no ment. That is what Harold Koh said at the human hand had been involved in the We learned this past weekend from a hearing. I hope every Member of the dissemination. New York Times article that the Jus- Senate will take the time to read his Torture became a pervasive practice. tice Department’s Criminal Division— testimony. The FBI says so. The Red Cross says so. then headed by Assistant Attorney In his response to our questions The Defense Intelligence Agency says General Michael Chertoff, now the about the Bybee memorandum, Mr. so. The Defense Department says it has nominee to head the Department of Gonzales said he has ‘‘no specific recol- investigated more than 300 cases of de- Homeland Security—was advising the lection of [his] reaction to the conclu- tainee torture, sexual assault, and CIA on the legality of specific interro- sions, reasoning, or appropriateness as other abuse. Additional allegations of gation techniques, using the Bybee- abuse—many of them too sickening to a matter of policy of any of the par- Gonzales memo as its legal guideline. ticular sections of the memorandum at be described in open session on the Further, the Times reported that the time [he] received it 21⁄2 years ago.’’ floor of the Senate—are reported al- there is a second Bybee memo which He did say, however, that he believed most daily. Yet, Mr. Gonzales can’t re- goes into even more detail than the member the details of how any of it first about which methods of coercion at the time it was ‘‘a good-faith effort’’ happened. can be used. We have repeatedly asked to interpret the antitorture statute. At The Judiciary Committee has repeat- for information about the original the hearing, he told Senator LEAHY: edly asked Mr. Gonzales to provide doc- Bybee-Gonzales memo and how it was I don’t recall today whether or not I was in uments on his meetings, evaluations, used. The nominee and the White agreement with all of the analysis, but I and decisions on the Bybee memo- House have stonewalled us. We have re- don’t have a disagreement with the conclu- sions then reached by the Department. randum. These documents would speak peatedly asked for other documents to volumes about all the issues Mr. be produced that would be relevant to Let’s review those conclusions. They Gonzales says he has trouble remem- understanding the first Bybee-Gonzales are summarized on the memo’s final bering. Yet he refuses to provide the memo. The nominee and the White page. The Bybee memorandum made documents. He won’t even search for House have stonewalled us. three basic points. First, it said that them. In his responses to our written Yesterday, Senator DURBIN and I torture means only acts that inflict questions, Mr. Gonzales stated eight wrote a letter to the ranking members the kind of pain experienced with death times that he has not ‘‘conducted a of the Judiciary and Government Ac- or organ failure. That is what the search’’ for the requested documents. countability Committees outlining the memo said: The pain ‘‘must be of an in- In other words, the documents we want pressing need for all relevant docu- tensity akin to that which accom- may exist, but he’s not going to look ments before we proceed to fully con- panies serious physical injury, such as for them. It’s hard to imagine a more sider the nomination. Senator DURBIN death or organ failure.’’ arrogant insult to the constitutional and I wrote: Second, the memo said that the role of the Senate in considering nomi- It is clear that the Senate should have the President has the inherent constitu- nations. documents before it votes on these two tional power as Commander in Chief to

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Our laws U.S. policy for two whole years was Third, the memo said that even if a and treaties, our military field manu- reckless and, in my view, disqualifying Government official were to commit als all provide specific and clear guid- in any nominee for Attorney General. torture under the extremely narrow ance on where to draw the line on tor- Mr. Gonzales has also demonstrated a definition set forth, abusers could still ture. Mr. Gonzales’s failure to condemn flagrant disregard for the rule of law in invoke the defenses of ‘‘necessity’’ or these acts of torture only weakens his effort to facilitate the CIA practice ‘‘self-defense.’’ As the memo states, America’s standing in the world and of ‘‘ghost detainees.’’ The administra- ‘‘necessity or self-defense could provide sets back our efforts against terrorism. tion has always claimed to be in full justification that would eliminate any How can we confirm as the chief law compliance with the Geneva Conven- criminal liability.’’ The memo made enforcement officer a nominee who is tions in Iraq. Yet in the spring of 2004, this outlandish claim even though the afraid to stand up for the rule of law? we learned from General Taguba that Convention Against Torture, which To reach this narrow definition of between six and eight of the prisoners Congress ratified in 1994, states very torture, the authors of the Bybee at Abu Ghraib Prison had not been reg- clearly that ‘‘no exceptional cir- memorandum relied on totally unre- istered as required by Army regula- cumstances whatsoever’’ may be in- lated Federal statutes that define tions and were being moved around the voked as a justification for torture. emergency medical conditions for pur- prison to avoid detection by the Inter- Fourth, the memo states that even if poses of providing health benefits. The national Committee for the Red Cross. the person inflicting pain knew that se- revision last December of the Bybee General Taguba described this practice vere pain would result from his ac- memoranda refuted this analysis stat- as ‘‘deceptive, contrary to Army doc- tions, he would not be guilty of a crime ing that the statutes relied on ‘‘do not trine and in violation of international even if he acted without good faith if define severe pain even in that very law.’’ causing harm was not his primary ob- different context . . . and they do not In September, Army investigators jective. This analysis defines ‘‘intent’’ state that death, organ failure, or im- told the Armed Services Committee in a way that defines away any in- pairment of bodily function cause ’se- that at the CIA’s direction, as many as stances of torture. This is one of the vere pain.’’’ 100 detainees at Abu Ghraib had been serious errors in the Bybee-Gonzales Clearly, the memo’s original defini- hidden from the Red Cross and that the memo that was contradicted in the new tion of torture is wrong. If it is applied CIA had refused requests to cooperate OLC memo of December 30, 2004, which in other countries, U.S. soldiers and with the military investigation. This replaced the original memo. citizens traveling abroad would clearly disclosure drew outrage from both None of these points qualify as a rea- be at risk. Democrats and Republicans. Senator sonable or ‘‘good faith’’ legal argu- The Bybee memorandum provisions McCain said: on executive power are also wholly in- ment. The Bybee memorandum defined The situation with the CIA ghost soldiers torture so narrowly that Saddam Hus- consistent with the separations of is beginning to look like a bad movie. . . . sein’s lieutenants could have claimed power in the Constitution. Article II, This needs to be cleared up rather badly. immunity from prosecution for many section 3 directs the President to ‘‘take Since then, we have learned that Mr. of their crimes. Beating you, suffo- Care that the Laws be faithfully exe- Gonzales was a major architect of this cating you, ripping out your finger- cuted.’’ Yet the Bybee memorandum policy. On March 19, 2004, the Justice nails, burning you with hot irons, sus- states that the Federal antitorture Department provided him with a draft pending you from hooks, putting light- statute would be unconstitutional if it memorandum—the so-called ‘‘Gold- ed cigarettes in your ear—none of these ‘‘interferes with the President’s direc- smith Memorandum’’—to allow the categories are specifically prohibited tion of such core war matters as the CIA to ship certain persons out of Iraq. under the Bybee memorandum since detention and interrogation of enemy Once again, the memo’s first page none involve near death or organ fail- combatants.’’ reads, ‘‘Memorandum for Alberto R. ure, the specific conditions required by At a press conference in June 2004, Gonzales, Counsel to the President.’’ A the memo to constitute torture. Mr. Gonzales refused to say whether separate cover page confirms that the As Chairman SPECTER himself said this statement remains ‘‘good law’’ for opinion was requested by him. It is today, the original Bybee-Gonzales the Bush administration. He would say hard to imagine a clearer smoking gun. memo was ‘‘erroneous in its legal con- only that the President ‘‘has not exer- Article 49 of the Fourth Geneva Con- clusions,’’ and its definition of torture cised his Commander in Chief override; vention specifically states: he has not determined that torture is, ‘‘was not realistic or adequate.’’ Individual or mass forcible transfers, as Nevertheless, Mr. Gonzales allowed it in fact, necessary to protect the na- well as deportations of protected persons to stand for over 2 years and allowed it tional security of this country.’’ from occupied territory to the territory of to be disseminated to other agencies, Mr. Gonzales evaded questions on the Occupying Power or to that of any other such as DOD, where major portions this issue by committee members. To country occupied or not, are prohibited, re- were absorbed verbatim into official this day, we still do not know whether gardless of their motive. policy. And now we know from the the President believes he has the power Violations of Article 49 constitute Times that it was used in the Justice as Commander in Chief to authorize ‘‘grave breaches’’ of the Convention Department to approve specific ex- torture. There is no such thing as a and therefore qualify as ‘‘war crimes’’ treme methods for the CIA. Commander in Chief override. under Federal law. Mr. Gonzales also refused to tell us It is certainly not in my copy of the In spite of the clear, unequivocal lan- whether the extreme conduct at Guan- Constitution. It appears to be some- guage of this provision, the Justice De- tanamo described in the FBI e-mails is thing that Mr. Gonzales and his col- partment ruled that Article 49 does not illegal. leagues have invented. in fact prohibit, for the purpose of ‘‘fa- This conduct included burning de- Congress has repeatedly passed laws cilitating interrogation,’’ the tem- tainees with lighted cigarettes, expos- and ratified treaties prohibiting tor- porary removal from Iraq of ‘‘protected ing them to extreme temperatures, giv- ture and mistreatment of detainees, persons’’ who have not been accused of ing forcible enemas, holding them in and the President does not have the a crime. Scott Silliman, an expert in prolonged stress positions in their power to violate them. military law at Duke University, ob- urine or feces. He explained his refusal When a nominee claims that such an served that the Goldsmith memo- to respond by saying to us: override exists, or suggests that those randum: [W]ere the administration to begin ruling who commit torture might be able to Seeks to create a legal regime justifying out speculated interrogation practices in invoke the defense of ‘‘necessity’’ or conduct that the international community

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S722 CONGRESSIONAL RECORD — SENATE February 1, 2005 clearly considers in violation of inter- February 2002 to treat all detainees end in three different parts of my State national law and the Convention. ‘‘humanely.’’ This shameful change in and of the State of the Presiding Offi- Although the memo was labeled policy obviously endangers the safety cer. I was conferring with many of our ‘‘draft,’’ it was put into action. In Oc- of American soldiers who are captured constituents regarding what is antici- tober 2004, the Washington Post re- abroad. pated to be the President’s proposal ported that one intelligence official fa- Finally, the New York Times re- that he will give in his speech tomor- miliar with the operation said the CIA ported that Mr. Gonzales excluded im- row night regarding Social Security. Of used the memo: portant administration personnel from course, this is of enormous importance As legal support for secretly transporting as deliberations on the administration’s to us, not only in America but espe- many as a dozen detainees out of Iraq in the plan to establish military tribunals at cially in Florida because of the high last six months. The agency has concealed Guantanamo, a plan that was widely percentage of our population who are the detainees from the International Com- criticized as unjust, unworkable, and senior citizens. In fact, it is 3 million mittee of the Red Cross and other authori- unconstitutional. Secretary of State Floridians, retirees, survivors, and peo- ties, the official said. Powell, National Security Adviser ple with disabilities who depend on The legal analysis in the Goldsmith Rice, and the head of the Justice De- monthly Social Security benefits. Memorandum is preposterous. Yet it partment’s Criminal Division, Michael Social Security provides a guaran- appears to have provided a legal jus- Chertoff, saw the President’s Military teed benefit, and it helps retirees live tification for the CIA to commit war Order only after it was published in No- independently and with dignity. It is crimes. As with the Bybee Memo- vember 2001. Most of the Pentagon’s also the sole source of income for one- randum, Mr. Gonzales has categori- top military lawyers were also kept in fifth of our Nation’s seniors. cally refused to answer the Senate’s the dark. More than 3 years after the In this day and age when you read questions about his involvement. order’s publication, not a single de- daily in the newspaper about employer He refuses to provide or even conduct tainee at Guantanamo has been suc- pensions becoming scarce, Social Secu- a search for documents relating to his cessfully prosecuted. To the contrary, rity provides a lifeline to retirees such request for the Goldsmith Memo- as predicted by officials who have ex- as Lucille Solana, a 57-year-old retiree randum. pertise in the field, the military tri- from Davie in Broward County. She He refuses to say anything about his bunal process there is falling apart. worked for United Airlines for nearly discussions with the author of the Torture has never before been a Re- 36 years and retired when the com- memo. publican versus Democrat issue. In- pany’s bankruptcy cut her pay and her He says he does not know whether stead, it has always been an issue of office in Miami was closed. She had the CIA acted on the memo, as the broad consensus and ideals, reflecting done what she was supposed to do. She Washington Post reported. the fundamental values of the Nation. followed the rule of savings: one-third He even says that he has never had President Reagan signed the Conven- personal savings, one-third corporate the ‘‘occasion to come to definitive tion Against Torture in 1988. pension, and one-third Social Security views’’ about the analysis in the memo. President George H.W. Bush and for her retirement. But it hasn’t all Far from helping to clear the air, Mr. President Clinton supported its ratifi- gone according to plan. United Airlines Gonzales has clouded it further. To let cation in 1994. The Senate Foreign Re- is going to terminate her pension, and his nomination proceed would make a lations Committee, led by Senator her personal savings have suffered with mockery of the notion of congressional Helms and Senator Pell, voted 10–0 to the market. About all she has left is oversight and accountability. report the Convention favorably to the her Social Security. There are many other issues in Mr. full Senate. I think we have a moral obligation to Gonzales’s record that should give I hope that this tradition of biparti- help people such as Lucille and our so- Members of the Senate pause. sanship and consensus will continue ciety’s elderly citizens. As predicted by Secretary Powell and today. I hope that all Members of the Social Security also helps us provide senior military lawyers, Mr. Gonzales’s Senate will cast their vote in a way financial security to spouses and de- memorandum of January 2002 on the that upholds our fundamental values. pendent children if a worker becomes applicability of the Geneva Conven- A ‘‘no’’ vote is the right vote if we disabled or dies. tions to the war in Afghanistan care about maintaining America’s Listen to this: 38 percent of all Social brought a strong negative reaction standing in the world and fighting the Security benefit dollars are paid to dis- from even our closest allies and low- war on terrorism. The torture and abled Americans. That is 18 million in- ered the bar for the protection of our other abuses of prisoners in Iraq, Af- dividuals, their spouses, dependent own troops. ghanistan, and Guantanamo have done children, and survivors. Without dis- According to the Schlesinger report, immense damage to America’s stand- ability benefits, over half of the fami- in September 2003 military com- ing in the world. The extreme and irre- lies with disabled workers would have manders in Iraq cited this memo as sponsible claims in the Bybee and incomes below the poverty line. legal justification for the use of ex- Goldsmith Memorandums have raised I hasten to add that when we are treme interrogation techniques at Abu basic questions about the genuineness talking about the spouses and depend- Ghraib prison. The worst abuses there of our commitment to the rule of law. ent children and survivors, what does occurred from September to December It is the right vote for our troops. the Good Book tell us is one of the 2003. The administration’s shameful dis- highest necessities? It has been told to In his answers to the committee, Mr. regard for our laws and treaties on tor- us in both the Old Testament and the Gonzales made clear that the adminis- ture has lowered the bar for the protec- New Testament in Isaiah and James. tration does not consider the CIA to be tion of our own soldiers. The widows and the orphans are at the bound by the prohibition on cruel, in- It has violated the military’s long- top of our list to be taken care of. human and degrading treatment in Ar- standing ‘‘golden rule’’: Treat captured Most families in America know what ticle 16 of the Convention Against Tor- combatants in the manner we expect an important program Social Security ture. This shift in legal policy was ap- our own soldiers to be treated. What is to all Americans. We don’t have to parently made in a separate Justice can Mr. Gonzales possibly say to a convince anyone. Department memorandum which has country that justifies its torture of a But you also ought to hear the story also not been provided to Congress. U.S. soldier by citing Mr. Gonzales’s by Gene and Lynda Christie of Beverly Today, therefore, CIA agents are au- own record of support for it? Hills, FL, two of our constituents who thorized to treat detainees in a cruel, The PRESIDING OFFICER. Under are concerned about the President’s inhuman, and degrading manner—even the previous order, the Senator from Social Security plan. They read about if it violates constitutional rules in the Florida is now recognized for 15 min- his projected plan in the papers. What U.S.—so long as they do not commit utes. they read and how it would be cal- ‘‘torture’’ under the Department’s nar- SOCIAL SECURITY culated, their senior benefits would be row definition. President Bush also ex- Mr. NELSON of Florida. Mr. Presi- cut by $500 a month. They simply can’t empted the CIA from his directive in dent, I have just returned from a week- afford that kind of reduction. I will bet

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S723 that some of you would have a difficult privatization shifts the risk to seniors until 4:30 again being equally divided time accepting such a cut. and it weakens Social Security’s guar- as previously mentioned; provided that I believe changes to Social Security anteed safety net. the further hour be under the control cannot include cuts to benefits. But Look at the wake of cases recently of of the majority and that every 60 min- that is what privatization would do. corporate wrongdoing. We all know too utes alternate. Further, I ask that That is what the President is expected well the dangers of relying on the from 2:30 to 4:30 be under the control of to propose on Wednesday night as a stock market for retirement. Just lis- the minority, with 4 o’clock to 4:30 central part of his plan. ten to Michael Pesho of Sanford, FL, under the control of the majority. I I will oppose diverting money from who wrote to me this December. He further ask consent that when the Sen- the Social Security trust fund, but I says: ate convenes on Thursday morning, im- believe we should do something to keep Dear Senator, I am a 56-year-old who had mediately following the time for the Social Security solvent just as we have to work since the age of 14. I lost both my two leaders, there be a period of morn- done successfully in the past. parents when I was 16, and I have had to pro- ing business for 2 hours, with the first Two decades ago, when I was in the vide for myself all these years. I am also a hour under the control of the Demo- House of Representatives, Social Secu- victim of the WorldCom fiasco. cratic leader or his designee and the rity faced a real crisis. It truly was on I was laid off at WorldCom and lost my en- tire retirement portfolio when it was con- second hour under the control of the the brink of insolvency. You know verted into worthless WorldCom stock. I’m majority leader or his designee. I fur- what happened. Instead of this ap- tired and would very much like to retire in ther ask consent that following the proach, ‘‘it is my way or the highway,’’ 9 or 10 years but in order for me to do that morning business time, the Senate re- Tip O’Neill and Ronald Reagan got to- Social Security will have to be in place for sume consideration of the Gonzales gether and they formed a bipartisan me to have any kind of retirement founda- nomination and there be an additional commission. On that commission, lead- tion to work off of. 8 hours of debate equally divided again ership was given to Senator Bob Dole, He says: between the chairman and ranking to Congressman former Senator Claude I implore you to ensure Social Security member or designees. Finally, I ask Pepper. And the work of that bipar- benefits will be there when I need them. consent that following the use or yield- tisan commission saved the system and Michael doesn’t want his Social Se- ing back of time the Senate proceed built up the trust fund for the retire- curity entrusted to the same market with a vote on the confirmation of the ment of the baby boomers. that devastated his retirement savings. nomination with no intervening action When you put this into context, over It is too risky. or debate, and that following the vote the next three-quarters of a century, 75 I intend to fight for people who the President be immediately notified years into the future, when you com- worked hard and played by the rules. I of the Senate’s action. pare now with the projected insol- will fight against cuts to Social Secu- Mr. DURBIN. Reserving the right to vency, lo and behold, we find that the rity benefits. I will fight against any object, if I could suggest to the chair- recent tax cuts that have been enacted plan that relies on massive borrowing man, Senator SPECTER, I think he will cost three times as much as the and increases in debt. I take the fis- misspoke on one line. I believe in the shortfall that Social Security is pro- cally conservative position and I will consent which we are considering it jected to face. fight to protect this program that pro- says that ‘‘further, I ask that from 2:30 According to the Social Security vides a safe and reliable source of re- to 4 o’clock be under the control of the Trustees Report last year, Medicare ex- tirement income for millions of Ameri- minority and 4 to 4:30 under the control penditures are now projected to surpass cans. I intend to work with the Presi- of the majority.’’ If that is the way his Social Security spending in 2024. With dent, not to cut, but to strengthen So- version reads, I would like to amend Medicare expenditures over the next 75 cial Security. I agree with him that we his statement. years being far in excess of the short- have a moral obligation to fix it for fu- Mr. SPECTER. 2:30 to 4 under the fall in Social Security, the Medicare ture generations. control of the minority and 4 to 4:30 deficit will be three times as much as Currently, I am working with other under the control of the majority? the shortfall in Social Security. Based Members of the Senate to put together That is acceptable. on these numbers, it is clear that a a moderate and more sensible plan that Mr. DURBIN. I have no objection. more real crisis lies in the exploding strengthens Social Security and ex- Mr. DAYTON. Reserving the right to health care costs. pands opportunities for all Americans object. Privatization will not fix Social Se- to save for their retirement. This plan The PRESIDING OFFICER. The Sen- curity. In fact, it will actually worsen would give workers additional tax ator from Minnesota. the country’s overall fiscal health. breaks to save for retirement on their Mr. DAYTON. I ask the chairman, When money is taken out of Social Se- own with a personal account over and does he intend, then, to proceed now, curity to pay for private investment above Social Security. and is it the understanding that this accounts, you won’t have enough to Now is the time to reach out and to side will have the next speaker, and I pay for current beneficiaries. bring the various factions together. will follow that individual? Some have suggested that the Gov- Now is the time to be conciliators and Mr. SPECTER. Mr. President, it is ernment should borrow $2 trillion to in the spirit of Ronald Reagan and my intention to speak next in rebuttal. plug this hole. ‘‘Tip’’ O’Neill who saved the Social Se- Mr. DURBIN. If I might ask through I just came from the Budget Com- curity system in a bipartisan fashion the Chair, I advise my colleague from mittee. When we are facing upwards of back in the early 1980s. We need to Minnesota I will make a unanimous $430 billion and more in deficits in this bring the factions together. We need to consent request about the lineup for particular year, and you take another build mutual consent on how to protect Democratic speakers. He will be the $2 trillion over the next 10 years and Social Security for the retirees of first on our side. add it to it, that would swell the Fed- today and future generations. I am The PRESIDING OFFICER. Without eral debt and increase our dependence very hopeful this can be achieved. objection, it is so ordered. on foreign creditors such as the banks I yield the floor. Mr. DURBIN. Mr. President, I ask in Japan and China. The PRESIDING OFFICER (Mr. AL- unanimous consent the order of speak- Rather than cut the benefits or bor- EXANDER). The Senator from Pennsyl- ers on the Democratic side for today be row trillions of dollars, I believe we vania. as follows: Senator DAYTON of Min- should pursue other ways to help Mr. SPECTER. Mr. President, I ask nesota, Senator STABENOW of Michigan, Americans supplement Social Security unanimous consent that the time until and Senator JOHNSON of South Dakota. and save for their retirement. 8:15 this evening be equally divided for The PRESIDING OFFICER. Without Social Security was intended to be a debate between the chairman and rank- objection, it is so ordered. social safety net. Social Security was ing member or their designees; pro- Mr. SPECTER. Mr. President, reserv- not intended and never was meant to vided further that the Senate then re- ing the right to object, and I do not in- be an investment program. By linking sume consideration of the nomination tend to object, I believe implicit in benefits to the volatile stock prices, at 9:30 a.m. tomorrow, with the time what the Senator from Illinois said is

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When the Senator from Massachu- It is not the policy of the administration Mr. SPECTER. Mr. President, today setts raised that issue in the executive to tolerate torture or inhumane conduct to- we have heard quite a ring of session, I then asked the White House ward any person that the United States is castigation against Judge Gonzales, to conduct a search. That search was detaining. virtually all of it misdirected, vir- conducted, and immediately a memo- No. 7, more testimony: tually all of it factually incorrect. We randum was circulated disclosing what The President is not going to order tor- have heard the Senator from Massa- that search was. ture. chusetts castigate the Bybee memo- When the Senator from Massachu- No. 8: randum in torrid prose, claiming the setts, last night—I got it this morn- Bybee memorandum was exactly [T]his President is not going to order tor- ing—asked for some more information ture. We don’t condone it. wrong. He asserted that the Bybee from the White House, I again for- No. 9: memorandum did not have a sensible warded the request and got a reply interpretation, or a legal interpreta- today. It was not a reply that the Sen- Now, let me emphasize, and I can’t empha- size this strongly enough, there are certain tion of torture. He further claimed that ator from Massachusetts liked, but the Bybee memorandum vastly over- basic values that this country stands for and there has been nothing about this en- this President certainly believes in, and stated executive authority, and that it tire proceeding that the Senator from those values are reflected in the directives said the President had as much author- Massachusetts has agreed with. And that he has issued regarding the treatment ity on the question of detainees as he that is his prerogative. He does not of al Qaeda detainees, and those who do not did on battlefield control. These claims have to agree with it. He does not have meet those standards are going to be held ac- are palpably erroneous. to vote for Judge Gonzales. And he can countable. The Senator from Massachusetts express his views on oversight respon- This is all testimony or responses in then cited the Goldsmith memo, and sibilities. But there are others of us on the Record: said it certainly was a smoking gun. this committee who have been here a In addition, there are of course other legal But Judge Gonzales did not hold that while who understand our oversight re- restrictions. For example, the convention gun, did not have anything to do with sponsibility and who have made a very against torture, that would be applicable, that gun. The Senator from Massachu- strong effort to provide the informa- Army regulations that would be applicable. setts said Judge Gonzales was sent a tion which the Senator from Massachu- All those exist to conscript the type of con- duct that our military can engage in with re- copy of that memorandum. During the setts has asked for. course of Judge Gonzales’s questioning spect to detainees. And so we want to of Judge Gonzales was available to course meet basic standards of conduct with by the Senator from Massachusetts, more than a dozen Members of the Sen- respect to treatment of al Qaeda[.] the Senator from Massachusetts never ate, available to all members of the Ju- No. 10, again, testimony: once, to my recollection, ever viewed diciary Committee—not that all asked [A]s I have said repeatedly today, this ad- the transcript, or said anything about to see him—and provided more than 250 the Goldsmith memorandum. ministration does not engage in torture and pages of voluminous answers. So exten- will not condone torture. And so what we are So what we have is the castigation of sive were the answers that they were really discussing is a hypothetical situation. Judge Gonzales for matters which were complimented, in effect, by the New ... totally beyond his control. Judge York Times, saying it was the most No. 11: Gonzales was the lawyer for the Presi- comprehensive statement made as to dent as White House Counsel. As such, [O]ther than the directive by the President what was the policy of the U.S. Gov- that we’re not going to engage in torture and he sat in on a series of meetings. Those ernment on these very important sub- that we’re going to abide by our legal obliga- meetings were convened to find out jects. tions, I’m not aware of any other directive what was the law on how detainees But aside from the rhetoric, what are by the President. could be appropriately questioned to the facts? What does the testimony No. 12: Judge Gonzales also reiter- avoid any implication of the torture show? What do the documents show? ated his own opposition to torture in statute. When there is a determination Senator FEINSTEIN says she still does numerous responses to written ques- of what the law is, that is up to the De- not understand what Judge Gonzales tions submitted by Judiciary Com- partment of Justice. And that is what thinks about torture. Well, what Judge mittee Senators following the hearing. Judge Gonzales testified to. And while Gonzales thinks about torture he has No. 13: there appears to be instances in which said on quite a number of occasions. The President has repeatedly stated that the Bybee memorandum was off-base, Let me remind all Senators who have Judge Gonzales was not involved with his Administration does not authorize or to vote on this matter what Judge condone torture under any circumstances by the drafting of that memorandum. Gonzales said about torture. U.S. personnel. I, of course, fully support the Then when the question comes up as No. 1: President’s policy. . . . to what questions the detainees were [T]he President has said we’re not going to No. 14: going to be asked, that is a matter for engage in torture. the experts. As Judge Gonzales re- I do denounce torture, and if confirmed as No. 2: Attorney General, I will prosecute those who sponded to questions from the Senator engage in torture. from Massachusetts at the hearing, it The President gave a directive to the mili- tary that despite the fact that Geneva may No. 15: is up to the CIA and up to the Depart- not apply with respect to the conflict and The President has made clear that the ment of Defense. It is not up to the the war on terrorism, it is that everyone United States remains committed to adher- Counsel for the President. should be treated humanely. When the Senator from Massachu- ing to its obligations under the Geneva Con- No. 3, this is in the record, according ventions and the Convention Against Tor- setts castigates Judge Gonzales for not to his testimony: ture and has unequivocally condemned tor- being able to remember what happened [T]he position of the President on torture ture. I have repeatedly emphasized the Presi- years ago, or what conversations may is very, very clear, and there is a clear dent’s statement of these commitments on have taken place, he is being unfairly record of this. He does not believe in torture, behalf of the United States, and will con- critical. The Department of Justice condone torture, has never ordered torture, tinue to do so if confirmed as Attorney Gen- was responsible to provide the memo. and anyone engaged in conduct that con- eral. Whether it was for the CIA or the De- stitutes torture is going to be held account- As chairman of the committee, I had partment of Defense is something that able. the first round of questions, and the was not recollected, but who can recol- No. 4: first question I asked Judge Gonzales

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Later, in an- Judge Gonzales testified that the ad- stand Judge Gonzales’s position after other response to the ranking member, ministration had sought to be in com- this kind of an emphatic, definitive Judge Gonzales agreed that it would be pliance as a substantive matter under statement, it is plain and clear for the horrific conduct—I think you would the 5th and 18th amendments. He also record. agree to this, and Judge Gonzales did, testified that to the best of his knowl- The contention has been made that to what Senator LEAHY asked—that edge, the U.S. has met its obligations Judge Gonzales agrees with a Bybee cutting off someone’s finger would be under the 5th, 8th, and 14th amend- memorandum’s conclusion that severe considered torture. ments. pain, for purposes of the torture stat- Judge Gonzales also explained his A major question was raised about ute, must be equivalent in intensity to agreement with the conclusion of the Judge Gonzales’s independence. He was the pain accompanying organ failure, Justice Department based on respect emphatic, saying that: impairment of bodily function, or even for the Department’s independence. If confirmed, I will no longer represent death. This has been a source of con- This is what Judge Gonzales had to say only the White House. I will represent the tention throughout the hearings in the on that facet of the issue: United States of America and its people. I executive session and on the Senate Senator, what you’re asking the counsel to understand the difference between the two floor. Judge Gonzales responded to the do is to interject himself and direct the De- roles. In the former, I have been privileged to ranking member, who said: partment of Justice, who is supposed to be advise the President and the staff. In the lat- Do you agree today that for an act to vio- free of any kind of political influence, in ter, I would have a far broader responsibility late the torture statute it must be equiva- reaching a legal interpretation of a law to pursue justice for all the people of our lent in intensity to the pain accompanying passed by Congress. I certainly give my great nation, to see that the laws are en- serious physical injury such as organ failure, views. There was of course conversation and forced in a fair and impartial manner for all impairment of bodily function or even a give and take discussion about what does Americans. death? the law mean, but ultimately, ultimately by Both Senator LEAHY and I, in our Judge Gonzales answered: statute the Department of Justice is charged opening statements, emphasized this I do not. That does not represent the posi- by Congress to provide legal advice on behalf issue, and this was a matter which of the President. tion of the Executive Branch. Judge Gonzales had thought about and So Judge Gonzales categorically re- Well, it is apparent from the totality had included in his opening statement pudiated the Bybee memorandum in of the context of what Judge Gonzales and was prepared to affirm the very that respect. had to say that aside from giving def- fundamental difference in his duty as There has been a source of argument erence to the role of the Department of Attorney General to the American peo- about what the Bybee memorandum Justice in interpreting the law, the ple, contrasted with his responsibilities meant and what Judge Gonzales’s posi- Bybee memo was not accepted by as White House Counsel to the Presi- tion was about it. Judge Gonzales was Judge Gonzales. dent. deferential to the determinations by When it came to the critical question We have seen a rather dramatic turn- the Department of Justice. There is a of the assertion in the Bybee memo- about in the course of the hearings on complicated issue here as to whether randum that the President had as Judge Gonzales, the issue of the esteem the White House is going to be overly much authority on the questioning of in which he had been held and what determinative in what the Department detainees as the President had on bat- Senators had to say about him and of Justice’s position should be, and the tlefield decisions, Judge Gonzales said what they have said about him since in White House has been very cautious. he disagreed with that. When the ques- This is traditional—not just with this executive session. tion came up about the scope of the Senator KOHL had this to say about White House but with prior White President’s authority to immunize peo- Houses—not to tell the Department of Judge Gonzales: ple who would violate Federal law, of We have had an opportunity to work to- Justice what to say or not to appear to course, any suggestion in the Bybee tell the Department of Justice what to gether on several different issues over the memo or otherwise would be contrary years, and I have come to respect you. And I say because that would be to a basic understanding of the law of believe if you are confirmed, you will do a politicization of a Department of Jus- the United States, where nobody is good job as Attorney General of the United tice by the White House. The White above the law. States. House’s role, as we have emphasized it, At his confirmation hearing, Judge Senator DURBIN said: is not to tell the Department of Justice Gonzales specifically rejected the por- I respect him and his life story very much. what to do, and the Department of Jus- tion of the August 1, 2002, Bybee memo- Senator LEAHY said: tice and the Attorney General’s role is randum, which asserted that the Presi- to represent all of the American people When this nomination was first announced, dent, as Commander in Chief, possessed and not just the President. I was hopeful. I noted at the time that I like the constitutional authority in certain There was discussion between the and respect Judge Gonzales. circumstances to disregard the Federal White House and the Department of Senator SCHUMER said: criminal prohibition against torture. Justice, as well as other agencies, I like Judge Gonzales. I respect him. I about what the torture statute meant. He stated that the memo has been think he is a gentleman and I think he is a Judge Gonzales testified to that and ‘‘withdrawn.’’ genuinely good man. We have worked very said, in effect, that it would be natural It has been rejected, including that section well together, especially when it comes to to have those kinds of discussions. regarding the Commander in Chief’s author- filling the vacancies on New York’s Federal ity to ignore the criminal statutes. So it has Judge Gonzales said: bench. He has been straightforward with me been rejected by the Executive Branch. I, and he has been open to compromise. Our It was very, very difficult. I don’t recall categorically, reject it . . . [T]his adminis- interactions haven’t just been cordial; they today whether or not I was in agreement tration does not engage in torture and will have been pleasant. I have enjoyed the give- with all of the analysis, but I don’t have a not condone torture. and-take we have engaged in. disagreement with the conclusions then Senator SCHUMER later said: reached by the Department. Ultimately, it is A question was raised about a res- the responsibility of the Department to tell ervation to the Convention Against I was inclined to support Judge Gonzales. I us what the law means, Senator. Torture under article 16, which pro- believed, and I stated publicly early on, that In the very next question, however, vided that aliens interrogated by U.S. Judge Gonzales was a much less polarizing personnel outside of the United States figure than Senator Ashcroft had been. . . . we clarified his views on the narrow Even if you are, as Judge Gonzales is, a good definition of torture in the Bybee did not enjoy the substantive rights of man, a good person with top-notch legal memo. The ranking member asked: the 5th, 8th and 14th amendments, a qualifications, you must still have the inde- Do you agree today that for an act to vio- technical reservation for international pendence necessary to be the Nation’s chief late the torture statute it must be equiva- law purposes. law enforcement officer.

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To say he has a generalized agreement been my hope and expectation at an So the question arises, as we are en- with the Bybee memorandum was not earlier stage that it would have been a gaging in floor debate on the nomina- the most artful of answers, after it had strong bipartisan vote. It is still my tion of Judge Gonzales to be Attorney been universally condemned and with- hope and expectation he will be con- General of the United States, what drawn by the Department of Justice. firmed with some bipartisanship, but it happened here? We know of the atroc- But he made that reference as a theo- will not be the kind of strong vote that ities of Abu Ghraib, and although there retical matter as to how the White would have given him a much stronger have been some efforts in some of the House respects the Department of Jus- position as Attorney General absent speeches to identify Judge Gonzales tice’s role in interpreting the law so the Bybee memo, Abu Ghraib, and with Abu Ghraib, they are not substan- that if the Department of Justice came Guantanamo. But on the basis of his tial. There have been some criticisms down with an interpretation, Judge academic, professional, and public regarding Guantanamo. Those matters Gonzales was not going to say it was service record, there was much, and are under investigation. But Judge wrong to appear to be having undue in- still is much, on which to recommend Gonzales is not the interrogator; he is fluence, or to be politicizing the proc- him to be the Attorney General of the not the questioner; he is not the person ess. But that wasn’t the most artful of United States. who made up the questions; he is not answers. Mr. President, I have taken some the person who has defined the torture When asked hypothetical questions more time. I made a very short opening statute. He has been one individual in about was there any circumstance statement to begin debate today and a series of meetings, where his role has where the President of the United have listened to the arguments made been defined as being the representa- States might not follow a statute, by Senators from the other side of the tive of the President. again, it wasn’t the most artful of an- aisle and find factually that they are But the role of the Department of swers. There is no doubt that Abu off the mark; that in terms of what Justice is clearly delineated. They are Ghraib and Guantanamo and the hor- Judge Gonzales has had to say out of to interpret what the statutes mean. rors of torture are overwhelming to the his own mouth have come very forceful The experts in the CIA and in the De- American psyche. denunciations of torture, very forceful partment of Defense have their own re- Back in 1991, I introduced legislation denunciations of the Bybee memo- sponsibilities. to protect victims of torture, to have randum, and a strong statement as to So what is happening here? Is it the rights of actions in Federal courts. I why he ought to be the next Attorney constant Washington search for polit- spoke out about the torture issue be- General of the United States. ical advantage that goes around this fore it became a matter for legislation Mr. President, I ask unanimous con- town every day? During the course of for the Congress generally. The legisla- sent that the following list be next in our discussion on Judge Gonzales, we tion I introduced in 1991 was adopted, order of Republican speakers: Senator heard a speech about Social Security. so that people who are subjected to tor- COBURN, Senator SESSIONS, Senator It surprised me a little, in the middle ture in foreign countries can sue in BROWNBACK. Before the Chair rules, I will add that we will continue to alter- of the proceedings. We have questions U.S. courts. So the issue of torture has nate between Republican and Demo- on political advantage on so many sub- always been on the mind of this Sen- cratic speakers. jects that I am not going to digress. ator. It is on the minds of the Amer- But there is no doubt that the air is The PRESIDING OFFICER. Is there ican people. objection? Without objection, it is so very heavy with politics in this town. But Judge Gonzales is not respon- We had the nomination proceedings ordered. sible for what went on in Abu Ghraib or Mr. SPECTER. I wanted to put this as to Secretary of State Condoleezza Guantanamo. Judge Gonzales is not re- on the record so the people who are Rice. She was challenged in a way that sponsible for actions by the CIA, or the next up would know it, and would be in was highly unusual in the Senate of Department of Defense, or for legal a position to come to the Chamber in a the United States—challenged as to her opinions by the Department of Justice. timely fashion. integrity. Not was she wrong about If you look at his record and his The PRESIDING OFFICER. The Sen- weapons of mass destruction, but did qualifications as a lawyer, his aca- ator from Minnesota. she falsify, was her testimony delib- demic qualifications as a Harvard Law Mr. DAYTON. Mr. President, I highly erately false and misleading. Dr. Rice graduate, his qualifications for prac- respect the distinguished chairman of had more negative votes than any ticing law with a big firm, his quali- the Senate Judiciary Committee. He nominee for Secretary of State since fications for being a supreme court jus- has been noted with his own stellar ex- John Jay in 1824. That says something tice in Texas, his qualifications for amples of bipartisanship, working with about the atmosphere in Washington being White House Counsel for 4 years, colleagues on both sides of the aisle. and the constant Washington search where Judge Gonzales has had contact But I must say I have to respond to his for political advantage. with many Senators—I dare say in that remarks about those of us who oppose Senator SCHUMER has raised a con- capacity, my colleagues in the Senate Judge Gonzales as being engaged in tention repeatedly in the course of the would share my views that he was al- nothing other than political partisan- proceedings on Judge Gonzales about ways courteous, always relevant, al- ship. I suggest that term could be ap- the so-called nuclear option. He asked ways on top of the issues in discussing plied to those who support these nomi- Judge Gonzales for his opinion as to judicial nominees, where most of us nees because they are of the same po- whether the so-called nuclear option is have had some role to confirm a judge litical party as the President as much constitutional. That is quite a cloud in his or her State. I think the com- as they could be applied to those of us hanging over the Senator—potentially ments would be uniform, as the ones I who are on the other side of the aisle. hanging over the Senate—as to wheth- quoted, about how pleasant it was and If the Founders of this country did er the rules of the Senate require only how effective it was and how profes- not intend for the Senate to exercise 51 votes on the confirmation of a Fed- sional it was to deal with Judge an independent judgment about the eral judge as opposed to the require- Gonzales. nominees to these high offices, such as ment of cloture of 60 votes. Senator So if the winds of Abu Ghraib and Attorney General and Secretary of SCHUMER has raised that issue. I don’t Guantanamo had not blown across this State, they would not have provided think he is looking for a commitment hearing, I think we would have had for a separate Senate confirmation of there as a condition to his vote, so why perhaps a unanimous vote in favor of the President’s nominees. question Judge Gonzales about that Judge Gonzales. In this highly charged These individuals are not employees collateral matter that has no bearing political atmosphere, one has to won- of the President, even though they are

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S727 nominated by him and serve as mem- the detention and interrogation of that these incidents were restricted to one bers of his Cabinet and serve at his enemy combatants thus would be un- prison near Baghdad. They were everywhere pleasure, as are his employees in the constitutional. (Section 2340A refers to from Guantanamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for White House, who are not subject to the United States law that incor- all we know, in any number of hidden jails Senate confirmation. These men and porates the international Convention affecting ‘‘ghost detainees’’ kept from the women become public officials who rep- Against Torture.) purview of the Red Cross. resent the United States of America Bybee asserted that the president was I will might add that is in direct con- within our country, before the Su- within his legal rights to permit his military tradiction to what we have been told, preme Court, as Secretary of State in surrogates to inflict ‘‘cruel, inhuman or de- those of us like myself who sit on the the seats of government around the grading’’ treatment on prisoners without Senate Armed Services Committee, world. They have to meet an American violating strictures against torture. For an act of abuse to be considered torture, the who have been told repeatedly by this standard, and it is that standard that administration’s representatives, and each of us has the independent respon- abuser must be inflicting pain ‘‘of such a high level intensity that the pain is difficult by military leaders, that these abuses sibility to apply according to our own for the subject to endure.’’ If the abuser is were restricted to one prison, Abu best judgments, but one the Constitu- doing this to get information and not merely Ghraib, in Iraq. I commend Senator tion clearly intends we should apply for sadistic enjoyment, then ‘‘even if the de- WARNER, the chairman of the Armed independent of the President’s judg- fendant knows that severe pain will result Services Committee, who has done his ment and independent, one would hope, from his actions,’’ he’s not guilty of torture. utmost, by holding these hearings and of our own respective political parties. Threatening to kill a prisoner is not torture; pressing the military and pressing the I think ultimately, in the light of ‘‘the threat must indicate that the death is administration, to bring the full scope ‘imminent.’’’ Beating prisoners is not tor- this debate, it is for the American peo- of what occurred there to public light ple to decide whether this nominee, or ture either. Bybee argues that a case of kick- ing an inmate in the stomach with military through those hearings. To have sat any of the President’s nominees, meet boots while the prisoner is in a kneeling po- through all those, as I have, and now the standards for those who will rep- sition does not by itself rise to the level of hear that contradicted directly by the resent this Nation in the highest public torture. facts as they become known is greatly offices in the land. Bybee even suggests that full-fledged tor- distressing and confirms my own unfor- I rise today to oppose the nomination ture of inmates might be legal because it tunately necessary judgment that this of Judge Gonzales to be our Nation’s could be construed as ‘‘self-defense,’’ on the administration has not been candid next Attorney General, and I cite, as grounds that ‘‘the threat of an impending with this Congress or with the Amer- have other colleagues, the key role terrorist attack threatens the lives of hun- ican people about the conduct of the that he played in what is certainly one dreds if not thousands of American citizens.’’ By that reasoning, torture could be justified war in Iraq in this and other very im- of the darkest disclosures about this almost anywhere on the battlefield of the portant respects. administration: Its secret decisions to war on terror. Only the president’s discre- Going back to the New York Times disregard the principles of the Geneva tion forbade it. These guidelines were for- article, they, meaning the abuses of Convention for the humane treatment mally repudiated by the administration the prisoners in Iraq: of prisoners of war who Judge Gonzales week before Gonzales’s appearance before were committed by the Marines, the Army, and others conveniently renamed the Senate Judiciary Committee for con- the Military Police, Navy Seals, reservists, ‘‘enemy combatants.’’ firmation as attorney general. Special Forces and on and on. The use of This role and its consequences were In this context, Secretary Rumsfeld’s deci- hooding was ubiquitous; the same goes for described in graphic detail in a recent sion to take the gloves off in Guantanamo forced nudity, sexual humiliation and brutal for six weeks makes more sense. The use of Sunday New York Times review of a beatings; there are examples of rape and dogs to intimidate prisoners and the use of electric shocks. Many of the abuses seem couple of books, including the Inter- nudity for humiliation were now allowed. Al- specifically tailored to humiliate Arabs and national Commission of the Red Cross’s though abuse was specifically employed in Muslims, where horror at being exposed in documents regarding the abuse of pris- only two cases before Rumsfeld rescinded the public is a deep cultural artifact. oners in Iraq by American service men order, practical precedents had been set; and An e-mail message recovered by Danner and women. I would like to quote to the broader mixed message sent from the from a captain in military intelligence in some extent from the New York Times White House clearly reached commanders in August 2003. . . . In the message, he asked for advice from other intelligence officers on report because it expresses both the se- the field. Lt. Gen. Ricardo S. Sanchez, in charge of the Iraq counterinsurgency, also which illegal techniques work best: a ‘‘wish vere consequences of the decisions that sent out several conflicting memos with re- list’’ for interrogators. Then he wrote: ‘‘The were made in which Judge Gonzales, gard to the treatment of prisoners—memos gloves are coming off gentlemen regarding unfortunately, played a key role as that only added to the confusion as to what these detainees, Col. Boltz has made it clear White House Counsel. was permitted and what wasn’t. When the that we want these individuals broken.’’ The reviewer cites part of the memo- general in charge of Guantanamo was sent to The article continues: randum that the President approved Abu Ghraib to help intelligence gathering, How do you break these people? According that was written by Judge Gonzales in the ‘‘migration’’ of techniques (the term to the I.C.R.C., one prisoner ‘‘alleged that he that role which states: used in the Pentagon’s Schlesinger Report) had been hooded and cuffed with flexicuffs, from those reserved for extreme cases in the As a matter of policy, the United States threatened to be tortured and killed, uri- leadership of Al Qaeda to thousands of Iraqi nated on, kicked in the head, lower back and Armed Forces shall continue to treat detain- civilians, most of whom, according to the in- ees humanely and, to the extent appropriate groin, force-fed a baseball which was tied telligence sources, were innocent of any into the mouth using a scarf and deprived of and consistent with military necessity, in a crime at all, was complete. Again, there is sleep for four consecutive days. Interroga- manner consistent with the principles of Ge- no evidence of anyone at a high level di- tors would allegedly take turns ill-treating neva. rectly mandating torture or abuse, except in him. When he said he would complain to the The article reporter goes on to say: the two cases at Gitmo. But there is growing I.C.R.C. he was allegedly beaten more. An Notice the qualifications. The president evidence recently uncovered by the ACLU I.C.R.C. medical examination revealed hema- wants to stay not within the letter of the . . . that authorities in the FBI and else- toma in the lower back, blood in urine, sen- law, but within its broad principles, and in where were aware of abuses and did little to sory loss in the right hand due to tight the last resort, ‘‘military necessity’’ can prevent or stop them. handcuffing with flexicuffs, and a broken overrule all of it. According to his legal Then there were the vast loopholes rib.’’ counsel at the time, Alberto R. Gonzales, the placed in the White House torture That is only one of several incidents President’s warmaking powers gave him ulti- memos, the precedents at Guantanamo, of that kind of horrible abuse this arti- mate constitutional authority to ignore any cle contains. It continues: relevant laws in the conduct of the conflict. the winks and nods from Washington, And the damage done was intensified by Sticking to the Geneva Convention was the and the pressure of an Iraqi insurgency President Bush’s refusal to discipline those exclusive prerogative of one man, George W. that few knew how to restrain. It was who helped make this happen. A president Bush; and he could, if he wished, make ex- a combustible mix. who truly recognized the moral and strategic ceptions. As Assistant Attorney General Jay The article continues: calamity of this failure would have fired ev- S. Bybee argues in another memo, ‘‘Any What’s notable about the incidents of tor- eryone responsible. But the vice president’s effort to apply Section 2340A in a man- ture and abuse is first, their common fea- response to criticism of the defense sec- ner that interferes with the President’s tures, and second, their geographical reach. retary in the wake of Abu Ghraib was to say, direction of such core war matters as No one has any reason to believe any longer ‘‘Get off his back.’’ In fact, those with real

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S728 CONGRESSIONAL RECORD — SENATE February 1, 2005 responsibility for the disaster were rewarded. otherwise. He cannot reinterpret them am extremely disappointed that my Rumsfeld was kept on for the second term, or ignore them or instruct the Presi- first opportunity to speak on the floor while the man who warned against ignoring dent or anyone else that they can rein- of this body is on the basis to refute the Geneva Conventions, Colin Powell, was terpret or ignore them. Change them? the claims that are being made against seemingly nudged out. The man who wrote a legal opinion maximizing the kind of brutal Yes, through the public process pre- a gentleman that I believe has already treatment that the United States could le- scribed by the Constitution, by our served our country miraculously and gally defend, Jay S. Bybee, was subsequently Constitution: by an act of Congress has been an example in this country of rewarded with a nomination to a federal signed into law by the President him- what can happen from very humble be- Court of Appeals. General Sanchez and Gen. self, reviewed if necessary by the judi- ginnings if somebody applies hard John P. Abizaid remain in their posts. ciary. No exclusions and no exceptions, work, great effort, and perseverance. Alberto R. Gonzales, who wrote memos that not for this President or any President; I am also struck by the claims that validated the decision to grant Geneva sta- not for this administration or any ad- are made which don’t have anything to tus to inmates solely at the president’s dis- cretion, is now nominated to the highest law ministration, whether Republican, do with history. enforcement job in the country: attorney Democrat, or anything else. There are I was sitting here asking myself this general. The man who paved the way for the no special circumstances. There is no question: Were President Kennedy, torture of prisoners is to be entrusted with election mandate for secretly ignoring President Johnson, and President safeguarding the civil rights of Americans. It or reinterpreting laws of this Nation, Nixon responsible for My Lai, Viet- is astonishing he has been nominated, and or acting contrary to the rule of those nam? Was it their policies that caused even more astonishing that he will almost laws or in violation of the Constitution that to happen? The atrocities that oc- certainly be confirmed. of the United States. curred during the Korean conflict, was I conclude my citation of that arti- Unfortunately, there is tragic prece- that the fault of President Truman? cle. The abuses it describes are ter- dent in this country’s proud history for The atrocities that occurred during rible, however limited in number they the demise of administrations who de- World War II, was that the fault of may be. Obviously almost all of our viated from the rule of law, who con- President Roosevelt? No. American service men and women serv- sidered themselves above the law or be- And to make the reach and to make ing so heroically in Iraq, Afghanistan, yond the law or justified in reinter- the claim that Alberto Gonzales, in his and around the world were not involved preting or ignoring the law. Their hu- role as adviser to the President, as a in those abuses. In fact, they paid the bris did great damage to themselves legal counsel, to do what is expected of price for them. They become the tar- and they did great damage to our coun- him in that position and to do that in gets of relatives and friends of those try. a way that gives the President of the abuse victims who swear revenge. Our They occurred more often than not United States the advice, the knowl- troops are placed at greater risk if, God during second terms, even after receiv- edge, and the legal opinion of the Jus- forbid, they are captured, because we ing that most special of electoral man- tice Department—not his opinion but cannot demand that their captors prac- dates: reelection. What a profound af- the legal opinion of the Justice Depart- tice standards of humane treatment firmation of the public trust, the most ment—that he somehow has disquali- which we do not practice ourselves. sacred political trust we have in this fied himself from the position of Attor- But there is something that runs country: reelection of the President of ney General. even deeper here and that is even more the United States of America. I come to the floor today to make a dangerous to our democracy. It is For the next 4 years, this President is statement in support of Alberto Judge Gonzales’s advice that ‘‘the our President. He is my President. I Gonzales’s nomination to be the Attor- President’s warmaking powers gave pray that he succeeds. Where he suc- ney General of the United States. I be- him ultimate constitutional authority ceeds, our country succeeds. If he ful- lieve an injustice is being carried out to ignore any relevant law in the con- fills that sacred trust inferred upon against him, both personally and pro- duct of the conflict.’’ him by the American people, the faith fessionally. Instead of looking at his This is, I suspect, only the tip of the of all Americans in their Government qualifications, many have used him as iceberg. Early in the administration’s is fulfilled. a lightning rod for their complaints campaign, in the fall of 2002, to stam- We can have policy disagreements about the administration’s handling of pede Congress and scare the American here in the Senate, in the House of the war on terror. Specifically, many people into the Iraq war, the White Representatives, and with the adminis- blame him for the administration’s House stated their legal view that the tration. This is what a great Demo- policies on the treatment of detainees President didn’t actually need congres- cratic leader, Senator Tom Daschle, and for its inquiries about the defini- sional authorization to invade Iraq. called the ‘‘noise of democracy.’’ They tion of torture. I am reminded that the Members of this body on the other side were intended by this country’s Found- President stated in 2002 that we would of the aisle were instrumental in per- ers, who designed our system of gov- offer humane treatment to all pris- suading him nevertheless to seek that ernment to allow them, to address oners. I am also reminded of how im- authority. them, and resolve them, publicly, law- portant it was for him to have a defini- Secretary Rumsfeld’s legal advisers fully, and constitutionally. When those tion of what that was according to the have reportedly reinterpreted existing principles are followed publicly, law- Geneva Convention, but also according law to permit him to set up his own fully and constitutionally, our Nation to our own law. CIA-type operations without informing is strengthened. When they are not, our What have the President and Judge Congress. They reinterpreted another Nation is almost always weakened, re- Gonzales done to deserve the criticism law, purportedly to authorize military gardless of what those leaders intended they received? We saw Monday the re- counterterrorist commando units to at the time. sults of Sunday’s elections in Iraq. operate within the United States. Who I respectfully urge this administra- The allegations against him are knows how many other laws this ad- tion to stop reinterpreting and ignor- based on two sets of advice that were ministration’s legal advisers have rein- ing existing laws and to stop ignoring given to the administration by the At- terpreted or decided that the President and misleading Congress and the Amer- torney General and Department of Jus- or others can ignore entirely, reinter- ican people and to nominate an Attor- tice. pret or ignore without informing Con- ney General who will not advise it, not First, the President made a decision gress, without informing the American hide it, and not condone it. That Attor- based on the legal advice that he re- people? ney General I will gladly vote to con- ceived from the Attorney General and The Attorney General of the United firm; this nominee, I will not. the Department of Justice that certain States is entrusted to uphold the laws I yield the floor. detainees should not receive prisoner- of this Nation and to apply them con- The PRESIDING OFFICER. The Sen- of-war status while they were held in sistently and fairly to every American ator from Oklahoma. U.S. custody. citizen, whether he agrees with them, Mr. COBURN. Mr. President, I am Second, Judge Gonzales asked the whether they are convenient, whether struck as a newly-elected Senator from Department of Justice Office of Legal the President or anyone else tells him the State of Oklahoma. I must say I Counsel under its statutory authority

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S729 to render legal opinions to determine cause soldiers are not supposed to tar- war treatment, they are still being the precise meaning of the U.S. anti- get civilians in battle, it is essential treated humanely. torture statute. The Department of that civilians are distinguishable from Furthermore, the President has un- Justice responded to this request Au- combatants. If civilians wish to be pro- equivocally stated the Third Geneva gust 1, 2002, and December 30, 2004. tected from harm, they must look dif- Convention applies to detainees cap- I must say that torture is not a ferent than combatants; therefore, tured in Iraq. Even those Iraqi pris- pleasant subject for us to discuss, but every person who wishes to engage in oners who do not meet the four re- one might ask why the President and combat and if captured receive the pro- quirements to receive POW status are his top lawyer needed a clarification on tections accorded to prisoners of war subject to an appearance before a Third an issue as unsettling as torture. I be- by the Third Geneva Convention, they Geneva Convention Article 5 tribunal lieve it is good to repeat the words of must fulfill four conditions: that of to determine their status. Prior to Senator CORNYN in his discussion. Why being commanded by a person respon- that, they must receive POW protec- would we not use every legal means sible for his subordinates; that of hav- tion until their status is determined. which are appropriate to protect this ing a fixed distinctive sign recogniz- Second, while the President agrees country? Finding out the definition of able at a distance; that of carrying with the Department of Justice that he appropriateness is well within the pur- arms openly; and that of conducting has the authority under the Constitu- view of what Alberto Gonzales did. their operations in accordance with the tion to suspend Geneva, as between the It is remarkable how quickly we for- laws and customs of war. We saw none United States and Afghanistan, he has get. Just 3 years, 4 months, and 21 days of that. declined to do so and has stated that ago, this Nation came under attack. If someone engaged in combat does the provisions of Geneva apply to our We all watched helplessly as more than not follow these rules, he or she is an present conflict with the Taliban. How- 3,000 of our fellow Americans were mur- illegal combatant. Illegal combatants ever, common Article 3 of Geneva, and dered, and nearly an equal number have long been recognized by state article 4, POW status, do not apply to were severely injured in an assault practice in the law of war field. In Ex the Taliban because they are unlawful that we had never seen before in this parte Quirin, the U.S. Supreme Court combatants. country. held that ‘‘by universal agreement and Finally, none of the provisions of Ge- As the horrors of September 11, 2001, practice the law draws a distinction be- neva apply to the conflict with al- unfolded before our eyes, we quickly tween the Armed Forces and the peace- Qaida in Afghanistan or elsewhere. Al- realized that we were not under the at- ful populations of belligerent nations Qaida detainees are not prisoners of tack of another country, we were not and also between those who are lawful war but are unlawful combatants. assaulted by a nation that respects and and unlawful combatants.’’ Next, the administration officials ac- obeys the laws of war and international Furthermore, the state practice of knowledge that there could be cir- order. We were ripped from a world par- the United States does not evidence cumstances where detainees hold infor- adigm that we understood, one where any understanding of a customary mation that could literally be a matter states follow rules while fighting each international law norm extending the of life or death for thousands or even other, and thrust into a new world Geneva Convention and prisoner-of-war millions of American citizens. Judge where a nonstate enemy infiltrates so- treatment to combatants who commit Gonzales needed to understand what we ciety and targets our citizens. Our terrorist acts. Instead, international are allowed to do under the laws of our enemy does not acknowledge that law regards such individuals as illegal Nation to save the lives of our people. while at war soldiers must wear uni- combatants who cannot claim the pro- Therefore, Judge Gonzales sought the forms, carry their weapons openly, tection of the laws of war that extend legal expertise of the Department of obey a chain of command, and treat to legal combatants. Justice—not his opinion, but the De- captives—especially civilian captives— Only lawful combatants, members of partment of Justice’s opinion—to un- humanely. What they do is cut their fighting units who comply, again, with derstand the definition and meaning of heads off. They don’t hide the fact. the four conditions—being commanded torture in the United States anti-tor- The nightmare that began on Sep- by a person responsible for subordi- ture statute. tember 11 has not ended. We watch nates; having a fixed distinctive sign, This request by Judge Gonzales did daily as our enemy attacks our soldiers recognizable at a distance; carrying not in any way indicate the desire of who are risking their lives and limbs to arms openly; and conducting their op- the administration to use torture. It is better the lives of the citizens of Iraq erations in accordance with the laws a far reach to claim it. As a matter of and Afghanistan and drive out terrorist and customs of war—are license to en- fact, it is absolutely untrue to claim it. cells. Gone are days when our soldiers gage in military hostilities. Only those In fact, the official position of the ad- were able to face the enemy on the bat- who comply with these four conditions ministration is that neither torture tlefields, eye-to-eye. Today, enemy are entitled to the protections afforded nor inhumane treatment are to be used combatants launch surprise attacks by to captured prisoners of war under the against anyone by the United States hiding among civilians and behind the laws and usages of war. regardless of whether they have pris- bodies of the wounded. Gone are the In fact, the denial of protected status oner-of-war status or not. Because the days when combatants understood how under the laws of war has been recog- administration’s position is so strong, important it was to protect civilians nized as an effective method of encour- it was critical that the President and from harm. Enemy combatants today aging combatants to comply. his advisers fully understand what con- brutally and repeatedly behead inno- As we hear those opine about what stitutes torture so that no lines would cent civilians. has gone on, I ask the American people be crossed. As our leaders first faced the after- to think about it. Who are these people What does all this mean? Members of math of September 11, a dark reality who are killing our soldiers? Who are the Taliban and al-Qaida detainees do set in: Our enemy would not play by these people who are blowing people not receive the luxuries afforded pris- the rules that civilized people and na- up? Who are they? They meet none of oners of war because they are unlawful tions have developed over the course of the criterion for a legal combatant. combatants. Iraqi fighters, even if they history. Our leaders needed to under- How has the President applied these are terrorists, and most are, receive stand exactly what our laws required principles to the War on Terror? In the prisoner-of-war status until they re- and what we needed to do to survive in February 7, 2002, Order on the Humane ceive a hearing before an article 5 tri- this new world we faced. They needed Treatment of al-Qaida and Taliban De- bunal to determine their status. None to make strong policy decisions based tainees, President Bush stated un- of these detainees are to be tortured or on our country’s domestic laws and equivocally that all detainees are to be otherwise treated inconsistently with international obligations. treated humanely, ‘‘including those U.S. constitutional principles. First, our leaders needed to under- who are not legally entitled to such It would have been irresponsible for stand who we were fighting. Under cus- treatment.’’ Therefore, even though Judge Gonzales to have not sought to tomary international law, civilians are many of the fighters our soldiers en- understand the legal rights of enemy not allowed to engage in combat. Be- counter are not entitled to prisoner-of- combatants and the law. He had a duty

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S730 CONGRESSIONAL RECORD — SENATE February 1, 2005 to the President and to the United confirmation would send the wrong can we hope to reclaim the moral lead- States to understand these concepts message to the world about the value ership we once had with this person as and pass those on to the President in we place on our basic constitutional our chief law enforcement officer? his private executive position as legal rights. Judge Gonzales has played a What signal does this send to the counsel to the President. prominent role in shaping this admin- world? We all went to sleep in a different istration’s policy on detention and tor- For more than 10 years, Judge world on September 11, 2001, very dif- ture. Some of these policies have not Gonzales has served as President ferent than the one we lived in the only damaged our country’s reputation Bush’s legal counsel, but now he must night before. Our leaders needed to un- and moral leadership, but they have represent a higher authority, the Con- derstand our domestic and inter- also placed our troops in greater dan- stitution of the United States of Amer- national obligations well to respond to ger. Judge Gonzales holds legal posi- ica, and he must do so with integrity the new needs of our country. Alberto tions that violate treaties the United and independence from his former long- Gonzales should not be faulted for States has ratified and supported, and term client. doing his duty for his client, the Presi- he helped to provide the justification The Attorney General of the United dent of the United States. He is well for the treatment of prisoners that led States cannot be a spokesperson for qualified to serve as a U.S. Attorney to the abuses at Abu Ghraib. the President. The Attorney General is General, and he should be confirmed. He also advocated and advised the the highest ranking law enforcement I also conclude by saying the fol- President on legal positions that cir- officer in the land. The Attorney Gen- lowing: In late November, I came to cumvented the Geneva Conventions. In eral has responsibilities for enforcing, Washington to go through a process of following Judge Gonzales’s advice to interpreting, and creating the laws orientation as a new Senator in this circumvent the Geneva Conventions, that govern our democratic way of life body. The message I heard from the this administration clearly set the in the United States. It is, therefore, other side of the aisle is, We want co- stage for the abuses at Abu Ghraib, the imperative that the person who holds operation. We want bipartisanship. We torture scandal, and this opinion ig- this position be someone who has the do not want to politicize. The opposite nored decades of U.S. support for hu- confidence of the American people. Our of that is happening at this very mo- mane treatment of prisoners. Such a laws must come first. He or she must ment in this body. Here is a good man reckless disregard for human rights look not for the political rationale or who has demonstrated tremendous laws not only violates international the loophole but, rather, always seek ability through his life. Everyone says law but, again, it puts our own troops the appropriate legal path, as guided he is well qualified. Everyone knows he at additional peril. by the U.S. Constitution. This is the will make a great Attorney General. The Convention Against Torture, people’s attorney. The fact is, politics is getting in the which was ratified by the United I was disturbed that during the con- way of his confirmation. States in 1994, prohibited torture and firmation hearings Judge Gonzales re- I urge my fellow Members in this cruel, inhumane or degrading treat- stated his belief that the Commander body to support and confirm him as the ment. The Senate defined such treat- in Chief can override—can override— next Attorney General of the United ment as abuse that would violate the the laws of our country and immunize States. 5th, the 8th, or 14th amendment to our others to perform what would other- I yield the floor. Constitution. This standard was for- wise be unlawful acts. This is wrong. The PRESIDING OFFICER. Under mally accepted by the Bush adminis- No one person can stand above the laws the previous order, the Senator from tration. that govern our Nation. The rule of law Michigan is recognized. During Judge Gonzales’s testimony it applies to every one of us, including Ms. STABENOW. Mr. President, I became clear that under his watch the the President of the United States. rise today to oppose the nomination of administration twisted this straight- I had hoped that during his testi- Judge Alberto Gonzales to be the At- forward standard to make it possible mony before the Senate Judiciary torney General of the United States. for the CIA to subject detainees to Committee, Judge Gonzales would have The Attorney General is the chief law practices such as simulated drowning used the opportunity to address these enforcement officer for our country and mock execution. The standard he questions and concerns, and that he with tremendous legal powers. He or approved defined torture as inflicting would have also used it as an oppor- she is responsible for enforcing our pain equivalent to ‘‘serious physical in- tunity to demonstrate an under- laws and for making important deci- jury, such as organ failure, impairment standing that the Attorney General sions on how they will be interpreted. of bodily function or even death.’’ does not represent the President but, The Attorney General can decide what In his testimony he told the com- rather, the American people, the laws person will be charged with a crime or mittee that these constitutional of our Nation, and the Constitution of detained. This is a job that requires amendments do not apply to foreigners the United States. sound legal judgment and impartiality held abroad; therefore, in his view, the I am troubled by the many questions because the Attorney General’s duty is torture treaty does not bind intel- that remain by his refusal to state cat- to uphold the Constitution and the rule ligence interrogators operating on for- egorically that the President may not of law. eign soil. authorize the use of torture in viola- But this job is not just about our Such a distortion is unacceptable tion of U.S. law and the Geneva Con- laws; it is also about the ideals of our and, again, is dangerous to our troops ventions. country. It is about what we stand for. who are serving us on foreign soil. On Sunday, Iraqis took an important It is about our freedom and liberty and How can someone who has sought to step toward democracy by holding justice as embodied in our Constitu- find the loopholes in the law be en- their first free elections in decades. We tion. It is about representing these fun- trusted to be the chief law enforcement applaud and celebrate with them. Let’s damental types of democracy, not just officer of our land? not take a step backwards now in to Americans but to the world. These attempts to circumvent the America by confirming a nominee who During the inauguration, we heard very laws he will be called upon to en- does not represent the fundamental the wonderful words from President force not only show a reckless dis- rights that the word ‘‘democracy’’ rep- Bush about the cause of freedom. I was regard for the law, put our troops in resents. pleased to hear him talk about our his- further danger, but they have damaged Mr. President, I yield the floor and tory as a country that has led the our position in the world. Since World suggest the absence of a quorum. world in the cause of freedom. These War II, the United States has been a The PRESIDING OFFICER. The are the ideals that our children learn moral authority in the world, an effec- clerk will call the roll. about every day. We should be proud of tive leader on the world stage. Such The assistant legislative clerk pro- our history. But our words must match damage not only tarnishes our reputa- ceeded to call the roll. our deeds. tion in the world, but it negatively af- Mr. BROWNBACK. Mr. President, I I am deeply concerned not only about fects our very ability to enlist our al- ask unanimous consent that the order Mr. Gonzales’s judgment, but that his lies in the critical war on terror. How for the quorum call be rescinded.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S731 The PRESIDING OFFICER. Without fied to hold this job? Will he do a good tion that law enforcement was being objection, it is so ordered. job? The President, in winning the politicized by the White House and Mr. BROWNBACK. Mr. President, I election, does need to have his people would seek to avoid such perceptions rise in support of Judge Gonzales, in key positions to be able to carry out by ‘‘talk[ing] to the career staff . . . to President Bush’s nominee to serve as policies that he put forward, that the make them understand that [he’s] com- our Nation’s 80th Attorney General. I American public has passed on in the ing to th[e] department with a clear want to address a few points that have election process. understanding of the distinct roles be- been brought up today and discuss In the past few weeks, there are some tween the two jobs. those a little bit. We will be able to who have done all they can to associate Remember, this is a gentleman who vote on this nominee this week. I think Judge Gonzales with the word ‘‘tor- earlier in his professional career served he is going to make an outstanding At- ture’’ and the disturbing pictures from on the Texas Supreme Court, a Su- torney General. He has been an out- Abu Ghraib because he offered a legal preme Court of one of the States of standing lawyer in various capacities memorandum stating that the Geneva United States. He understands a dif- throughout his professional career al- Conventions do not apply to members ferent position. He has been in an inde- ready. He is going to continue to show of al-Qaida. These kinds of accusations pendent position. He understands these that. I want to articulate why that is are factually inaccurate and only serve different roles and the places they going to be the case. to bring down the reputation and mo- serve in Government. And he under- His background is well known. I rale of our Armed Forces who are serv- stands how they work and he will abide serve on the Judiciary Committee. We ing honorably and nobly in defense of by them. had lengthy hearings with Judge this Nation. As we saw over this past Also at his hearing he emphasized Gonzales. We had multiple rounds. Ev- weekend, there was an incredible vote the ‘‘very restrictive contacts policy erybody on the committee got to ask by the Iraqi people that was so heart- between the [Justice] Department and and have answered every question they ening to myself and to all of America the White House, limiting who from asked. This is a nominee who has been because this is something we have the White House can contact the De- through the question-and-answer proc- fought for, that our young men and partment of Justice,’’ saying that ess on a lengthy basis. It is time we women have died for, to give them free- ‘‘what we don’t want to have is people move forward. The President needs an dom. Now they have it, and they are from various divisions within the Attorney General. This is the office expressing it. White House calling the Department that heads so many of our functions Clearly, there are going to be prob- about an ongoing investigation.’’ that are very important in the war on lems ahead and difficulties, and it is He offered his commitment to ensure terrorism, and we need to move for- not going to be anything close to a per- that the contacts policy is as strong as ward with this. fect democracy. Ours isn’t yet, al- it should be. He also offered his com- It is well known to people who have though we continue to aspire and are mitment to abide by that policy. Judge been watching this debate. As the son moving closer and closer toward that Gonzales has stated his commitment to of migrant workers from a family of end. They are going to have difficul- respecting and fostering the profes- seven children, the first to go to col- ties. Yet they have made a step that sionalism of the career employees of lege, he is the epitome of the American would not have happened had our the Department of Justice. In response dream. He has a law degree from Har- young men and women not put their to written followup questions from the vard. He could have done anything, yet lives on the line and the President Senator from Massachusetts, Judge he chose a path of public service. And made bold decisions that this body au- Gonzales said he would ‘‘do everything he is an extraordinarily good public thorized to go to war to remove Sad- in [his] power to reassure the career servant—humble, wise, has a tremen- dam Hussein from power. Judge professionals at the Department and dous ability to persevere through dif- Gonzales has been part of the Bush the American people that [he] would ficulty. team and the White House. He has done not politicize the Department.’’ Through his work as chief counsel to a good job there, and he will do an ex- There is a direct statement from the President, Judge Gonzales has be- cellent job as Attorney General. Judge Gonzales of how he would oper- come seasoned in national security I wanted to take a few minutes to set ate. issues and legal challenges that are es- the record straight on some key issues. Judge Gonzales emphatically en- sential to the job of Attorney General. Some have questioned Judge dorsed the proposition that ‘‘all gov- He is unquestionably qualified for the Gonzales’s independence from the ernment lawyers should always provide position, and I have no doubt he will be President. Judge Gonzales understands an accurate and honest appraisal of the confirmed by the Senate this week and that his role as Attorney General of law, even if that will constrain the ad- should be confirmed and should be the United States will be very different ministration’s pursuit of desired poli- given our strong support. from his role as counsel to the Presi- cies.’’ I am deeply saddened by many distor- dent. He has made that quite clear in Again, that is another direct quote tions and unjustified criticisms of his confirmation hearing. He stated: from Judge Gonzales in response to a Judge Gonzales’s nomination that he I do very much understand that there is a question by a Member of the Senate. has had to go through and to face. Even difference in the position of Counsel to the Judge Gonzales also suggested in his if you disagree with the administration President and [that of] Attorney General of response to the Senator from Massa- in the war on terror, Judge Gonzales the United States. . . . As counsel to the chusetts that his close personal rela- should have been treated during the President, my primary focus is on providing tionship with the President would nomination process with a level of dig- counsel to the White House and to White make it easier for him to be honest and nity and respect by this body in going House staff and the President. I do have a forthright with the President. So he client who has an agenda, and part of my through the discussion. One can say: I role as counsel is to provide advice that the has a personal relationship that he can believe that this is a good nominee, President can achieve that agenda lawfully. build on as well, but he understands that this is a good person, and they It is a much different situation as Attorney the professional relationship. He is a should look at those criteria and those General, and I know that. My first allegiance lawyer, and he understands the role in qualifications and not say: I am voting is going to be to the Constitution and to the which he would be serving. against him because I have a disagree- laws of the United States. I would like to make it clear that on ment with the administration on a pol- Upon confirmation, Judge Gonzales the issue of the Geneva Conventions, icy issue. will be ready and able to take on the despite what you are hearing today, Undoubtedly, there are disagree- independent responsibilities of the At- the United States is committed to ments on policy issues. Undoubtedly, torney General. His service as a Texas complying with the governing law and there are a number of people who dis- Supreme Court justice proved his abil- treaty obligations in the war on ter- agree with Judge Gonzales on how he ity to be independent from then-Gov- rorism. would view policy issues. But that is ernor and now-President Bush. At his There have been some criticisms of not the issue in the confirmation proc- confirmation hearing, he indicated he Judge Gonzales regarding the Geneva ess. The issue is, is this person quali- would be very sensitive to any percep- Conventions. Some have claimed that

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We need to have a person there His role in shaping the policy on tor- Afghanistan was the first time in which we that people look up to and say this is a ture was similarly regrettable. The said that it did not apply to a conflict. person who will uphold the law, who is ‘‘torture memo’’ that was drafted at Senators have accused the adminis- an upright individual, and will do all Judge Gonzales’s request stood as ad- tration of taking its obligations under he can to make this a better place. ministration policy for 2 years. The De- the Geneva Conventions lightly. Judge Gonzales will do all of those fense Department used the memo’s dis- The administration has fully and things and he will do it in a tremen- turbing conclusions to justify abusive faithfully adhered to its obligations dous fashion. interrogation techniques. under the Geneva Conventions. Judge I don’t think this is a particularly These policies have consequences. To Gonzales’s critics meld together two helpful or good debate, where we ques- defeat terrorism, the 9/11 Commission different issues: First, whether the Ge- tion a person’s ability to stand inde- concluded that we must win the war of neva Conventions apply to a particular pendent, or to do these other things, ideas in the Muslim world. The impor- armed conflict and, second, whether when that person stated clearly he tance of this recommendation cannot particular individuals in that conflict would and his past track record has be emphasized enough. Undermining are entitled to a particular protected shown that he will. our fundamental commitment to due status under one of the Geneva Conven- For those reasons, I hope we can process, failing to honor our inter- tions. The mere fact that the Geneva move expeditiously through this de- national agreements, and flouting our Conventions apply to a conflict be- bate. Let people question his ability if laws prohibiting torture and war tween two nations does not mean that they choose, but let’s have the vote crimes harms that effort. all persons involved in that conflict and get Judge Gonzales approved to Judge Gonzales’s performance at the qualify for a particular status, such as serving this country in this important hearing did little to alleviate our con- prisoner-of-war status, under the terms time and in this very important job. cerns. We heard him condemn torture, of the conventions. Mr. KOHL. Mr. President, in many generally, but refuse to discuss what he The administration and Judge ways, Judge Gonzales’s life story is the thought constituted torture. We heard Gonzales have been very clear in sepa- American dream—rising from humble him commit to honor our international rating the two issues. But as dem- beginnings to being nominated to be agreements but waffle when asked onstrated in the claims made above, our Attorney General. Yet, Judge when they apply. We heard him de- Judge Gonzales’s critics have sought to Gonzales must be evaluated on more nounce the abuses that were com- confuse the issue by mixing the two than his life story; indeed, the deci- mitted in Iraq but refuse to discuss questions. sions he has made in his public capac- whether they might be illegal. We The administration did not deter- ity must be closely scrutinized. We are, heard him commit to hold anyone in- mine that the Geneva Conventions did after all, being asked to confirm him as volved responsible for their actions but not apply in enemy conflict in Afghani- the Nation’s chief law enforcement of- repeat predetermined conclusions stan. Rather the President determined ficer. about what happened and who was to that the Geneva Conventions do, in- We begin with a standard of granting blame. deed, apply to the conflict in Afghani- deference to the President to surround When asked by members of the Judi- stan, but that neither al-Qaida terror- himself with the people he chooses for ciary Committee about his views on ists nor Taliban fighters qualify for his Cabinet. But that deference is not these policies and his roll in shaping prisoner-of-war protections under the absolute. The Attorney General is not them, Judge Gonzales either could not Geneva Conventions. the President’s lawyer, but the people’s remember or was nonresponsive. When This obvious distinction is grounded lawyer. As I listened to the nominee’s asked about whether he thought tor- in the very text of the Geneva Conven- answers at his confirmation hearing, ture was ever productive, after more tions. This has been ignored by Judge read his responses to our additional than 2 years of participating in discus- Gonzales’s critics. The judge explained questions, and examined the facts, I sions on the subject, he told the Com- the distinction quite clearly in his tes- found that my deference was chal- mittee, ‘‘I have no way of forming an timony before the Judiciary Com- lenged. Indeed, we are being asked to opinion on that.’’ He admits to attend- mittee. He stated this: confirm the administration’s chief ar- ing meetings where specific methods of There was a decision by the President that chitect of its legal policies in the war torture were discussed but told the Geneva would apply with respect to our con- on terror—policies with questionable committee that he cannot recall any- flict with the Taliban. However—and I be- legal support that have proven harmful thing that was said. His evasiveness lieve there is little disagreement about this to the conduct of the war and injured was not an encouraging preview or his as a legal matter—because of the way the our reputation abroad. ability to be candid with the American Taliban fought against the United States, We must expect more from our Attor- they forfeited their right to enjoy prisoner- people about the basis of the decisions ney General. The war on terrorism has he will be responsible for making as of-war legal protections. proven more clearly now than ever be- Judge Gonzales has repeatedly af- our Attorney General. fore that the Justice Department’s This has not been an easy decision to firmed his respect for the Geneva Con- mission is too central to our democ- ventions. He has worked to ensure that reach. We hope that if Judge Gonzales racy to be entrusted to someone who is confirmed, he will prove us wrong. we protect Americans from the threat leaves us with such doubt. As the of terrorism, while treating al-Qaida For now, however, our doubts are too President’s chief legal officer in the great to support his nomination. and Taliban detainees humanely and, White House, Judge Gonzales’s advice to the extent appropriate and con- sadly fell short time and again. For f sistent with military necessities, in these reasons, I must vote no. keeping with the principles of the Ge- A closer examination of the adminis- MORNING BUSINESS neva Conventions. tration’s legal policies demonstrates Mr. BROWNBACK. Mr. President, I Judge Gonzales has also stated fur- why we have reached this conclusion. ask unanimous consent that there now ther at the hearing: Over the strong objections of Secretary be a period for the transaction of morn- I consider the Geneva conventions neither of State Powell, career military law- ing business, with Senators permitted obsolete nor quaint. yers, and others with great expertise, to speak for up to 10 minutes each. In closing, we have an outstanding Judge Gonzales advised the President The PRESIDING OFFICER. Without nominee in judge Gonzales. His per- to deny prisoners the protections of the objection, it is so ordered.

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The Wil- supports our Armed Forces through the For more than 25 years, the Nathan sons spent time in Oklahoma, South Armed Forces Council of Chicago, an Adelson Hospice has been the only non- Dakota, Idaho, New Mexico and Wash- American Legion Post and several sup- profit provider of hospice care in south- ington State and finally settled in Hen- port groups. ern Nevada. When the Nathan Adelson derson, NV in June 1952. I know that my fellow Senators will Hospice was established in 1978, it was I first met Don at Basic High School join me in congratulating members of one of the first hospices in the country. in Henderson in 1957, and we quickly the Union League Club of Chicago on Its mission is to provide dignified and became friends. He and I both played their accomplishments and commit- compassionate care for the terminally on the football and baseball teams to- ment to their community. I am con- ill and their loved ones. In keeping gether, but Don was the star. He set fident that this proud history and tra- with this mission, no one is turned many records, some of which stand to dition will continue with future gen- away from the Nathan Adelson Hospice this day, and he led our high school erations of like-minded members for due to lack of funds. teams to several championships. One another 125 years. As great as it is, the Nathan Adelson year, he even batted over .500. With f that type of talent, it is hardly sur- Hospice is always trying to improve RULES OF PROCEDURE—COM- prising that Don earned a full athletic the care it offers to patients. Last MITTEE ON VETERANS’ AFFAIRS year, the hospice began construction scholarship at Arizona State Univer- on a 16-bed, inpatient facility in Hen- sity in Tempe, where he graduated Mr. CRAIG. Mr. President, the Com- derson, NV. This facility will provide with a degree in marketing in 1961. mittee on Veterans’ Affairs has adopt- respite services for families, pain and After graduation, Don worked for a ed rules governing its procedures for symptom management for patients, few months for IBM Corporation. He the 109th Congress. Pursuant to Rules and day care for adults in the commu- was drafted, however, in 1962 and XXVI, paragraph 2, of the Standing nity. It is a state-of-the-art facility, served his country honorably for 2 Rules of the Senate, on behalf of my- and I am pleased to say that I was able years in the Army. He worked in the self and Senator AKAKA, I ask unani- to secure funds to help with its con- Clark County Juvenile Justice System mous consent that a copy of the Com- struction. for over 15 years, trying to make a dif- mittee rules be printed in the RECORD. Finally, my recognition of the Na- ference in the lives of troubled young There being no objection, the mate- than Adelson Hospice would be incom- Nevadans. During his time at the Juve- rial was ordered to be printed in the plete without mentioning its efforts on nile Court, he served in various leader- RECORD, as follows: behalf of minorities. Studies indicate ship positions, including director of the COMMITTEE ON VETERANS’ AFFAIRS RULES OF that minorities and members of tradi- Spring Mountain Youth Camp. PROCEDURE tionally underserved populations do Since then, Don has worked hard on I. MEETINGS not take advantage of hospice care as behalf of Nevada on my staff—both in (a) Unless otherwise ordered, the Com- much as they should. In fact, while mi- the House of Representatives and in mittee shall meet on the first Wednesday of norities make up almost 30 percent of the United States Senate. He filled each month. The Chairman may, upon proper the U.S. population, they account for many roles in my office over the notice, call such additional meetings as years—legislative assistant, business deemed necessary. fewer than 20 percent of hospice pa- (b) Except as provided in subparagraphs (b) tients nationwide. Some experts have manager, and currently deputy re- and (d) of paragraph 5 of rule XXVI of the suggested that inequities in access to gional manager for my Las Vegas of- Standing Rules of the Senate, meetings of health care, cultural differences, and fice—but, first and foremost, he has re- the Committee shall be open to the public. language barriers are responsible for mained my trusted friend. The Committee shall prepare and keep a this situation. Abraham Lincoln once said, ‘‘The complete transcript or electronic recording No matter the reasons, it is clear better part of one’s life consists of his adequate to fully record the proceedings of that members of minority commu- friendships.’’ Don Wilson has been my each meeting whether or not such meeting friend for the better part of my life, or any part thereof is closed to the public. nities could benefit from greater access (c) The Chairman of the Committee, or the to hospice care. That is why I was so and I thank him for this friendship and Ranking Majority Member present in the ab- pleased to hear of the Nathan Adelson look forward to our continued relation- sence of the Chairman, or such other Mem- Hospice’s new efforts to expand care to ship in the years to come. ber as the Chairman may designate, shall Nevada’s underserved minority com- f preside at all meetings. (d) Except as provided in rule XXVI of the munities. UNION LEAGUE CLUB OF CHICAGO Last week, the Nathan Adelson Hos- Standing Rules of the Senate, no meeting of pice hosted a multicultural luncheon Mr. DURBIN. Mr. President, I rise the Committee shall be scheduled except by majority vote of the Committee or by au- and concert in an effort to connect today to commend the fine members of the Union League Club of Chicago on thorization of the Chairman of the Com- with minority businesses that want to mittee. sponsor outreach and educational ef- the 125th anniversary of the organiza- (e) The Committee shall notify the office forts for minority communities in Las tion’s founding in 1879. designated by the Committee on Rules and Vegas. This event was a creative way On behalf of the people of Illinois, I Administration of the time, place, and pur- to build business and community part- thank all of the members of the Union pose of each meeting. In the event such nerships while raising the profile of an League Club of Chicago, both past and meeting is canceled, the Committee shall important program. present, for their shining example of immediately notify such designated office. (f) Written notice of a Committee meeting, I know you will join me in applaud- civic leadership. The Union League Club of Chicago has a proud history of accompanied by an agenda enumerating the ing the Nathan Adelson Hospice, and items of business to be considered, shall be its efforts to increase minority partici- patriotism and service to the Chicago sent to all Committee members at least 72 pation in hospice care. community, the State of Illinois, and hours (not counting Saturdays, Sundays, and f the Nation. Since its founding to rally Federal holidays) in advance of each meet- citizens in defense of the Union during ing. In the event that the giving of such 72– TRIBUTE TO DON WILSON the Civil War, this organization has hour notice is prevented by unforeseen re- Mr. REID. Mr. President, I rise today forged partnerships with other promi- quirements or Committee business, the Com- to acknowledge and honor the work of nent civic organizations to support a mittee staff shall communicate notice by the my good friend, Don Wilson, who will broad range of social, military, and quickest appropriate means to members or appropriate staff assistants of Members and be retiring after 22 years of service to nonpartisan political activities. an agenda shall be furnished prior to the the people of Nevada in the House of The same organization that was in- meeting. Representatives and the United States strumental in bringing the World Co- (g) Subject to the second sentence of this Senate. lumbian Exposition to Chicago in 1893 paragraph, it shall not be in order for the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S734 CONGRESSIONAL RECORD — SENATE February 1, 2005 Committee to consider any amendment in a subpoena, the subpoena may be issued upon or other Federal civilian official of com- the first degree proposed to any measure the signature of the Chairman or of any parable or higher rank; or under consideration by the Committee un- other member of the Committee designated (4) an individual who, as determined by the less a written copy of such amendment has by the Chairman. Chairman and Ranking Minority Member, been delivered to each member of the Com- (f) Except as specified in Committee Rule performed outstanding service for veterans; mittee at least 24 hours before the meeting VII (requiring oaths, under certain cir- (B) each member of the Congressional dele- at which the amendment is to be proposed. cumstances, at hearings to confirm Presi- gation representing the State in which the This paragraph may be waived by a majority dential nominations), witnesses at hearings designated facility is located has indicated vote of the members and shall apply only will be required to give testimony under in writing such member’s support of the pro- when 72-hour written notice has been pro- oath whenever the presiding member deems posal to name such facility after such indi- vided in accordance with paragraph (f). such to be advisable. vidual; and (C) the pertinent State department or V. MEDIA COVERAGE II. QUORUMS chapter of each Congressionally chartered (a) Subject to the provisions of paragraph Any Committee meeting or hearing which veterans’ organization having a national (b), eight members of the Committee shall is open to the public may be covered by tele- membership of at least 500,000 has indicated constitute a quorum for the reporting or ap- vision, radio, and print media. Photog- in writing its support of such proposal. proving of any measure or matter or rec- raphers, reporters, and crew members using IX. AMENDMENTS TO THE RULES mechanical recording, filming or broad- ommendation. Five members of the Com- The rules of the Committee may be casting devices shall position and use their mittee shall constitute a quorum for pur- changed, modified, amended, or suspended at equipment so as not to interfere with the poses of transacting any other business. any time, provided, however, that no less seating, vision, or hearing of the Committee (b) In order to transact any business at a than a majority of the entire membership so members or staff or with the orderly conduct Committee meeting, at least one member of determine at a regular meeting with due no- the minority shall be present. If, at any of the meeting or hearing. The presiding tice, or at a meeting specifically called for meeting, business cannot be transacted be- member of the meeting or hearing may for that purpose. The rules governing quorums cause of the absence of such a member, the good cause terminate, in whole or in part, for reporting legislative matters shall gov- matter shall lay over for a calendar day. If the use of such mechanical devices or take ern rules changes, modification, amend- the presence of a minority member is not such other action as the circumstances and ments, or suspension. then obtained, business may be transacted the orderly conduct of the meeting or hear- by the appropriate quorum. ing may warrant. f (c) One member shall constitute a quorum VI. GENERAL UNITED STATES-INDONESIA for the purpose of receiving testimony. All applicable requirements of the Stand- MILITARY RELATIONS III. VOTING ing Rules of the Senate shall govern the Mr. LEAHY. Mr. President, last week (a) Votes may be cast by proxy. A proxy Committee. I listened to the comments of my shall be written and may be conditioned by VII. PRESIDENTIAL NOMINATIONS friend, the senior Senator from Mis- personal instructions. A proxy shall be valid (a) Each Presidential nominee whose nomi- souri, regarding the devastating im- only for the day given. nation is subject to Senate confirmation and (b) There shall be a complete record kept pact of the tsunami in Aceh, Indonesia, referred to this Committee shall submit a which caused so much loss of life and of all Committee action. Such record shall statement of his or her background and fi- contain the vote cast by each member of the nancial interests, including the financial in- destruction of property. Senator BOND Committee on any question on which a roll terests of his or her spouse and of children paid tribute to the contributions of call vote is requested. living in the nominee’s household, on a form American relief agencies that have IV. HEARINGS AND HEARING PROCEDURES approved by the Committee which shall be done so much to alleviate the suffering (a) Except as specifically otherwise pro- sworn to as to its completeness and accu- there, and I want to echo those com- vided, the rules governing meetings shall racy. The Committee form shall be in two ments. govern hearings. parts— He also expressed concern about what (b) At least 1 week in advance of the date (A) information concerning employment, he called ‘‘unintended consequences’’ of any hearing, the Committee shall under- education, and background of the nominee of restrictions on our assistance to the take, consistent with the provisions of para- which generally relates to the position to which the individual is nominated, and Indonesian military, otherwise known graph 4 of rule XXVI of the Standing Rules as the TNI. Specifically, he referred to of the Senate, to make public announce- which is to be made public; and ments of the date, place, time, and subject (B) information concerning the financial the International Military Education matter of such hearing. and other background of the nominee, to be and Training Program, and spare parts (c) The Committee shall require each wit- made public when the Committee determines for C–130 aircraft. ness who is scheduled to testify at any hear- that such information bears directly on the I want to respond to that portion of ing to file 40 copies of such witness’ testi- nominee’s qualifications to hold the position Senator BOND’s remarks, to be sure mony with the Committee not later than 48 to which the individual is nominated. Com- there is no misunderstanding about hours prior to the witness’ scheduled appear- mittee action on a nomination, including what our law says. ance unless the Chairman and Ranking Mi- hearings or a meeting to consider a motion To begin with, I want to disabuse nority Member determine there is good cause to recommend confirmation, shall not be ini- tiated until at least five days after the nomi- those who might be misled by some In- for failure to do so. donesian officials who often mistak- (d) The presiding member at any hearing is nee submits the form required by this rule authorized to limit the time allotted to each unless the Chairman, with the concurrence enly refer to a U.S. military ‘‘embar- witness appearing before the Committee. of the Ranking Minority Member, waives go’’ against Indonesia. I ask unanimous (e) The Chairman, with the concurrence of this waiting period. consent that a Defense Department the Ranking Minority Member of the Com- (b) At any hearing to confirm a Presi- document from our Embassy in Ja- mittee, is authorized to subpoena the attend- dential nomination, the testimony of the karta, which describes the many pro- ance of witnesses and the production of nominee and, at the request of any Member, grams and other contacts we currently any other witness shall be under oath. memoranda, documents, records, and any have with the TNI, be printed in the other materials. If the Chairman or a Com- VIII. NAMING OF DEPARTMENT OF VETERANS RECORD at the end of my remarks. mittee staff member designated by the AFFAIRS FACILITIES The PRESIDING OFFICER. Without Chairman has not received from the Ranking It is the policy of the Committee that no objection, it is so ordered. Minority Member or a Committee staff mem- Department of Veterans Affairs facility shall ber designated by the Ranking Minority (See exhibit 1.) be named after any individual unless— Mr. LEAHY. The fact is that the TNI Member notice of the Ranking Minority (A) such individual is deceased and was— Member’s nonconcurrence in the subpoena (1) a veteran who (i) was instrumental in participates in training programs within 48 hours (excluding Saturdays, Sun- the construction or the operation of the fa- under both the expanded International days, and Federal holidays) of being notified cility to be named, or (ii) was a recipient of Military Education and Training, E– of the Chairman’s intention to subpoena at- the Medal of Honor or, as determined by the IMET, program and the Counterterror- tendance or production, the Chairman is au- Chairman and Ranking Minority Member, ism Fellowship Program, CTFP. This is thorized following the end of the 48-hour pe- otherwise performed military service of an the largest CTFP program currently riod involved to subpoena the same without extraordinarily distinguished character; underway anywhere in the world. Mil- the Ranking Minority Member’s concur- (2) a member of the United States House of lions of dollars have been appropriated rence. Regardless of whether a subpoena has Representatives or Senate who had a direct been concurred in by the Ranking Minority association with such facility; for these programs in recent years, in- Member, such subpoena may be authorized (3) an Administrator of Veterans’ Affairs, a cluding for the types of defense man- by vote of the Members of the Committee. Secretary of Veterans Affairs, a Secretary of agement, military justice, civil mili- When the Committee or Chairman authorizes Defense or of a service branch, or a military tary relations, and other courses that

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S735 the Senator from Missouri and I sup- cemetery in Dili, East Timor in 1992, stricted for Indonesia. However, training is port. The TNI is participating in the E– our IMET assistance was cut off. Our allowed with IMET funding for Expanded– IMET program which Congress has relations with the TNI were further IMET (E–IMET) courses for both military and civilians. funded at the level requested by the curtailed in 1999, after the independ- E–IMET courses have included a wide- Bush administration. ence referendum in East Timor when range of programs, including seminars, in- Our law also does not prevent mili- the TNI orchestrated widespread country Mobile Education Teams, and Mas- tary exercises and other contacts with killings and the destruction of prop- ters Programs at Naval Postgraduate the U.S. military through officer visits, erty. Although senior TNI officers have School. Topics have included defense man- educational exchanges, and port visits. repeatedly vowed to support reform, agement, national security affairs, defense Perhaps the most visible evidence of they have done next to nothing to hold restructuring, civ-mil relations, resource this is the U.S. military working side their members accountable for these management, military law, peacekeeping op- erations, and other important topics. by side with the TNI during the ongo- heinous crimes. Instead, the TNI has ing humanitarian relief operations in COUNTER-TERRORISM FELLOWSHIP PROGRAM consistently obstructed justice. (CTFP) Aceh. I should note that these conditions With respect to training, U.S. law re- Largest CTFP Program in the world. (Allo- do not apply to the Indonesian navy. cated FY B04 $500,000; Supplemental $386,826; stricts only the full restoration of reg- Congress specifically exempted the FY B05 Allocation $600,000.) (Allocated B02 ular IMET assistance until the Indo- navy because enhancing maritime se- ‘‘No Year’’ funds in 2002: $3.7 million; Current nesian Government and the TNI ‘‘are curity is a critical priority. Remaining $702,000.) cooperating’’ with the FBI’s investiga- There are also credible reports that Note this Remaining B02 money is Pro- tion into the August 31, 2002, murders after 9/11, the TNI provided support to grammed through FY 05 and FY 06. of two American citizens and one Indo- In the FY02 Defense Appropriations Act, radical Indonesian groups that have the Regional Defense Counter-Terrorism Fel- nesian citizen. By ‘‘cooperating,’’ we been involved in terrorism. lowship Program was established under sec- obviously mean not simply cooperating Since 1999, restrictions on our rela- tion 8125. in limited ways, but fully cooperating. tions with the TNI have been narrowed, Both civilian and military officers partici- I am concerned with reports that the and today, as I mentioned, we have a pate in a wide variety of courses and semi- TNI may have conspired with the wide range of military-to-military ac- nars under this program designed to improve shooters in that case, and that the one tivities. the professionalism and management skills Papuan individual who has been in- I am disappointed that some Pen- of TNI. CTFP training programs include in- telligence cooperation, national level deci- dicted, who is not a member of the tagon officials and my friend from Mis- sion-making, civil-mil cooperation in com- TNI, remains at large even though his souri, rather than acknowledging the bating terrorism, and maritime security, as whereabouts are reportedly known to extent of the United States-Indonesia well as Indonesian attendance at US Staff the TNI. military relationship and urging the Colleges, War Colleges, National Defense With respect to equipment, our law TNI to demonstrate that it is serious University, and English language training does not restrict the sale of non-lethal about reform by meeting these reason- and materials. equipment to the TNI. Specifically, able conditions, have expressed support THEATER SECURITY COOPERATION PROGRAM with regard to spare parts for the C– for weakening our law. (Funding provided from various sources per 130’s, there has been no change in U.S. Indonesia’s new President event.) law, although I am told that there may Yudhoyono is a career military officer. Indonesian is an active participant in U.S. have been a relaxation of this adminis- Pacific Command TSCP activities, to include He has a reputation as a reformer, and regional workshops and seminars promoting tration’s policy. Our law does not and I wish him well. I have always sup- cooperation on security issues, Counter-Ter- never has prevented the sale of spare ported substantial economic assistance rorism seminars and workshops, peace- parts for these aircraft for humani- to Indonesia. In fact, Senator MCCON- keeping workshops, and Subject Matter Ex- tarian purposes. Over 4 years ago, when NELL, the Chairman of the Foreign Op- pert Exchanges. the TNI first requested to purchase C– erations Subcommittee, and I have Activities are limited to non-lethal, non- 130 spare parts for ‘‘search and rescue’’ worked to increase this assistance. combat related events. In close cooperation with both the ODC missions, the U.S. Ambassador and I, Prior to President Yudhoyono’s elec- and the Defense Attache Office, PACOM has as well as, I am told, the Secretary of tion, there were some important re- developed a more robust TSCP program over Defense, informed the Indonesians that forms which reduced the TNI’s influ- the next two years in order to broaden our this was not prohibited by either U.S. ence in politics. But a key gap remains engagement with TNI and other agencies law or policy and that they could pur- regarding justice for the victims of within GOI. chase these parts from us. For reasons atrocities, including crimes against hu- Indonesian participation has increased the Pentagon is aware of, the TNI de- manity. This is the focus of our law, from Zero events in FY 00 to more than 85– events in FY 04, and more than 132 pro- cided to obtain them elsewhere. and it is as important to Indonesia and grammed in FY 05. The only conditions on the sale of le- the TNI as it is for the United States. FOREIGN MILITARY SALES/FOREIGN MILITARY thal equipment are that the Indonesian I believe that President Yudhoyono FINANCING Government is prosecuting and pun- should agree and want the TNI to make Foreign Military Sales (FMS): Remain fro- ishing members of the TNI for gross these necessary reforms. zen by USG policy. There remain 38 active violations of human rights, and that I applaud the U.S. military and the cases with an FMS balance of $ 3.5 mil. the TNI is (1) taking steps to counter TNI for working together to bring aid Foreign Military Financing (FMF) and international terrorism consistent to tsunami victims in Aceh. But just as other grant programs, such as eligibility for with democratic principles and the rule our policy should promote cooperation Excess Defense Articles (EDA), remain re- of law; (2) cooperating with civilian ju- stricted by legislation. in humanitarian operations and in ($11.3 mil requested for FY 06; $6 million dicial authorities and with inter- counterterrorism, so should it promote recommended by interagency for FY 06; national efforts to resolve cases of respect for human rights, account- focus is maritime security and C–130 parts.) gross violations of human rights; and ability, and the rule of law. These are Direct Commercial Sales (DCS): USG pol- (3) implementing financial reforms to fundamental to the freedom and de- icy has established ‘‘carve-outs’’ for specific deter corruption. mocracy that President Bush spoke of categories of defense hardware, such as C–130 There are good reasons for these lim- in his inaugural address. Our law, spare parts, non-lethal equipment, and ‘‘safe- ited conditions. The United States has which was narrowly written to provide ty of use’’ items for lethal end items (an ex- provided hundreds of millions of dol- ample would be CAD/PADs, propellant car- an incentive for reform while allowing tridges for ejection seats on fighter aircraft). lars in training and equipment to the military contacts to continue, strikes ($928,709 released by DSCA from FMS funds Indonesian military since the 1950s. De- the right balance. 04 Jan 05 for Tsunami relief/repair of C–130s.) spite the close relationship that devel- EXHIBIT 1 f oped between the U.S. military and the IMET/E–IMET TNI over four decades, the TNI ac- TRADE MISSION TO NEW ZEALAND (Allocated FY 04 $599,000; Requested for FY AND AUSTRALIA quired a reputation for being notori- 05 $600,000.) ously abusive and corrupt. After the The International Military Education and Mr. BAUCUS. Mr. President, I rise to TNI murdered some 200 civilians in a Training (IMET) program continues to be re- share some observations on my recent

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S736 CONGRESSIONAL RECORD — SENATE February 1, 2005 trade mission to Australia and New Joining me were a group of nine Mon- I also thank Australian Ambassador Zealand. tana business and agriculture leaders— to the United States Michael Thawley In May 2004, the United States and representing the full range of our and his staff in Washington for all Australia signed a historic free-trade State’s economy, including manufac- their help in making the trip such a agreement. That agreement went into turing, agriculture, tourism, and serv- success. force on January 1, 2005, lowering trade ices. They were: Montana Chamber of During the negotiations of the barriers and opening new markets for Commerce president Webb Brown, from United States-Australia Free-Trade goods, services, and agriculture. Helena; Greg Dumontier of St. Igna- Agreement, Ambassador Thawley and This agreement opens the door to a tius, general manager of S & K Tech- Adam McCarthy from his staff made greater relationship with one of the nologies; David Cameron of Bozeman, a several trips to Montana. They met most vibrant and promising economies rancher and retired biologist with Mon- with our state officials, business and in the world. tana State University; Steve Holland, agriculture groups, and were able to For Australia, it offers integration director of the Montana Manufacturing contribute to their own negotiators’ with the world’s largest economic Extension Center in Bozeman; Fraser sensitivity to Montana’s goals in the power. For the United States, it offers McLeay, senior manager with the Mon- negotiations. The results were, I be- a link to an Australian market that tana World Trade Center in Missoula; lieve, in the best interests of both Mon- has one of the highest standards of liv- Lillian Ostendorf of Powderville, State tana and Australia. ing in the world—and one of the few Women’s Committee chair with the I am excited about future prospects large economies with whom the U.S. Montana Farm Bureau; Mike Over- for trade and cooperation with Aus- enjoys a trade surplus. street of Billings, chairman of the tralia. Australia is a large market for Further benefits will accrue to U.S. board and vice president of inter- American manufactured goods and exporters from using Australia as a national relations for Corporate Air; services and promises to become an platform for more efficient access to Jeff Ruffner of Butte, senior vice presi- even larger one. For example, Aus- Asian markets. dent and general manager with MSE tralia is fast becoming a major market Australia has for years pursued a Technology Applications; and Kathy for Montana’s growing high tech and strong policy of economic engagement Brown, property manager with Project services industries, including medial in the Asia-Pacific region. It has com- Management in Helena. products, environmental consulting, pleted, or is currently negotiating, Also joining the delegation were sev- and engineering. trade agreements with several key eral representatives of some of our In addition, from Montana’s perspec- countries in the region. This network largest national companies with oper- tive, one of the most important aspects of trade relationships will increase the ations in Australia and the Asia-Pa- of the new trade agreement goes be- value of the free trade agreement to cific region. They were: David Beier, yond its market access provisions: it is U.S. exporters and investors in Aus- senior vice president for global govern- Australia’s commitment to support the tralia. ment affairs for Amgen, Inc.; Lionel United States in its efforts to nego- The free-trade agreement further ce- Johnson, vice president and director, tiate disciplines on state trading enter- ments the relationship between the International Government Affairs, for prises in the WTO Doha Round. United States and one of its strongest Citigroup, Inc.; Thomas Quinn, partner State trading enterprises like the Ca- allies in the world. Australia is a major with the law firm Venable, rep- nadian Wheat Board and the Aus- partner with the U.S. in global resenting U.S. Tobacco; and Elizabeth tralian Wheat Board give agricultural antiterrorism efforts. It is a significant Schwartz, vice president for legislative producers in those countries unfair ad- partner in Iraq. affairs for the Boeing Company. vantages when competing with our It is also one of our most important The goal of our trade delegation was world class Montana agricultural prod- partners within the WTO. As a leader to meet with business and government ucts in global markets. of the Cairns Group, a loose association leaders, build relationships, find oppor- I also used the visit as an oppor- of major agriculture exporting coun- tunities, and discuss solutions to com- tunity to promote cooperation between tries, Australia has been a reliable ally mon challenges. We met with great Australia and the United States on a in our fight for reform of global agri- success. broader range of multilateral and re- culture markets. A highlight of the visit was a meet- gional trade and economic issues. I believe in economic engagement ing of the entire delegation with Aus- Australia and the United States have and in trade. Reducing barriers and tralian Prime Minister John Howard at a mutual interest in promoting a broad opening markets creates opportunities Parliament House in Canberra. vision of Asia-Pacific economic inte- and jobs. It helps spread the values of I was very pleased to have the oppor- gration. We are both Pacific powers, democracy and international coopera- tunity to personally thank Prime Min- but not Asian. tion. ister Howard for working with me to If we neglect our ties with Asia, we But the benefits of trade do not come address Montana’s interests in the free- risk a narrow Asian economic integra- without challenges. In the case of Aus- trade agreement. We also explored tion that deprives our businesses of the tralia, it is our agriculture sector that ways Australia and the United States most preferential access to these grow- was initially concerned about the chal- can work together to advance our mu- ing markets. I challenged the Govern- lenges a free trade agreement might tual interests in the World Trade Orga- ment and the private sector in Aus- pose. This is particularly true in Mon- nization, the Asia-Pacific Economic tralia to be our partners in broadening tana, where agriculture makes up Forum, and the Asia-Pacific region. that vision. about one half of the State’s economy. In Sydney, members of the delega- Our trade efforts also led us to New That is why I worked hard to make tion were able to benefit from the expe- Zealand. While not as big a country as sure the United States-Australia Free- rience of AmCham members doing Australia, New Zealand is an impor- Trade Agreement was a good deal for business in Australia and of the U.S. tant trading partner for the United the United States and a good deal for Commercial Service. Many partici- States. In 2003, merchandise trade be- Montana. By working with negotiators pated in individual business meetings tween the two countries exceeded $4 from both Governments, I was able to with counterparts or potential cus- billion. There was an additional $2 bil- include strong provisions that leveled tomers in Sydney, Melbourne, and lion in trade in the service sector. the playing field for Montana’s agri- Brisbane. Exports of Montana products to New culture industry in the deal, while also Our thanks go out to the U.S. Em- Zealand increased more than sevenfold assuring Montana’s businesses access bassy and Consulate staffs in Canberra, over the last 5 years. Equally impor- to tremendous new market opportuni- Sydney, and Melbourne for all their tant to Montana, New Zealand kept a ties. hard work making this such a produc- cool head and did not overreact to the With a strong deal in place, it was a tive and meaningful trip for me and for recent BSE scare with a ban on U.S. good time to see for myself what new each member of the delegation. I par- beef—a major product in my State and opportunities are available in Aus- ticularly want to thank U.S. Ambas- critical to our economy. tralia and to start making the free- sador to Australia J. Thomas Schieffer More importantly, New Zealand is a trade agreement work for Montana. for his hospitality and assistance. vital piece in the Asian puzzle. Just as

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We be- land, Taiwan, and Malaysia. the U.S. Embassy and Consulate staffs lieved that capitalism would win the That is why I have long been an ad- in Wellington and Auckland for all Cold War—and it did. vocate for closer economic ties be- their hard work putting together a fan- Now China, Vietnam, Russia, and tween our countries. In fact, back in tastic schedule for a whirlwind 2-day others are beginning the transition to 2001, I introduced legislation to author- visit. I particularly want to thank U.S. a free market economy. This is a posi- ize fast-track consideration of a free- Ambassador to New Zealand Charles tive development—not one to fear. trade agreement with New Zealand. Swindells for his advice and assistance. To me, the challenge is elementally The New Zealand Government has Finally, I thank New Zealand Ambas- about whether we will meet the future been actively pursuing a free-trade sador to the United States John Wood with open minds and open arms, or agreement with the United States for as well as Ian Hill and Janette Mal- whether we will turn inward and seek several years. Up until recently, they colm from the New Zealand Embassy in shelter from the inevitable storms that have been rebuffed by the Bush Admin- Washington for all their help in mak- change always brings. istration for reasons having nothing to ing the trip such a success. America has never shied away from do with the potential economic merits After all the government meetings, engagement with the rest of the world. of such an agreement. tours of agricultural facilities, and dis- We have been successful because we are I disagree with that approach. I be- cussions with business groups, I came confident, innovative, positive, and lieve that trade agreements should be away believing that the right free- open. We can only lose our place in the pursued or not pursued primarily on trade agreement with New Zealand world if we forget who we are and for- the basis of their economic merit. makes sense for the United States and get how we got here in the first place. I thought it was time to allow the makes sense for Montana. That is why I will continue to work Government of New Zealand to make Like Australia, New Zealand is a for an open trade policy. It is why I strong market for American manufac- its case. And so I brought my trade del- will continue to fight hard for Mon- tured goods and services. Like Aus- egation to New Zealand to meet with tana’s place in the world. tralia, New Zealand can serve as a Government officials and business rep- It is also why I think it is so impor- launching pad for reaching Asian mar- resentatives, to explore market oppor- tant to take these trade missions kets. And New Zealand is a developed tunities, and to build new relation- abroad. In the past couple of years, I country with a strong legal system, ships. have led missions to Cuba, Japan, which sets the stage for a high-stand- As in Australia, a highlight of the China, and Thailand. This time, we ards agreement. visit was my meeting with New Zea- You may not guess this, but from went to Australia and New Zealand. land Prime Minister Helen Clark. Montana’s standpoint, New Zealand is Every trip has brought success. Each Prime Minister Clark and I discussed a more important market, relatively trip has opened doors for Montana prospects for a bilateral free-trade speaking, than it is for the United business. And discovering the potential agreement and also exchanged views on States as a whole. While New Zealand in any market or relationship ulti- how the United States and New Zea- is the United States’ 49th largest trad- mately is what makes trade work for land can cooperate on regional and ing partner, it is one of Montana’s top Montana, as well as for the United multilateral trade issues. 25 export markets—not far behind Ma- States. I told the Prime Minister that I laysia, and more important than Thai- f think a free-trade agreement between land or the Philippines. 40TH ANNIVERSARY OF THE CON- the United States and New Zealand That doesn’t mean it would be easy. makes sense—so long as it is the right SERVANCY OF SOUTHWEST I know that negotiating a free-trade FLORIDA agreement. And the Australia Free- agreement with New Zealand would Mr. NELSON of Florida. Mr. Presi- Trade Agreement—with its strong pro- raise sensitive issues for Montana’s dent, I rise today to congratulate the tections for Montana agriculture—is farmers and ranchers, several of whom Conservancy of Southwest Florida for the right model to follow. joined me on the trip. But I also know its 40th year of service in protecting Australia and New Zealand share a that facing difficult trade issues pays the environment of my great State. In common market. For that reason, it off in the end. would have made sense to include New That is because—in the end—trade 1964, citizens joined together to save Zealand in the United States-Australia means jobs. Rookery Bay from over-development, Free-Trade Agreement in the first There are tremendous opportunities and since that day the conservancy and place. in the Australia and New Zealand mar- its many supporters have worked to The Administration settled for 80 kets awaiting those Americans intrepid preserve the breathtaking natural percent of the Australia-New Zealand enough to seek them out. Increased habitat and the quality of life in south- market, when it could have had 100 per- trade will generate jobs and good-pay- west Florida. cent. But that is in the past, and Prime ing ones at that. The Conservancy of Southwest Flor- Minister Clark and I agreed that we I want Montana to participate in and ida has created so many wonderful in- need to look forward. benefit from an enhanced trading rela- stitutions that all Floridians, young During my visit, I was also privileged tionship with these countries. and old can enjoy. This includes the to meet, along with members of my Yet, in a more general sense, these Conservancy Nature Center, which al- delegation, with New Zealand’s Min- enhanced relationships are about open- lows kids and adults alike to work ister of Agriculture and Trade Negotia- ness. hands-on to learn about the ecosystem tions Jim Sutton and Minister of For- While historians like to talk about and the varied wildlife that inhabits eign Affairs and Trade Phil Goff. I ap- the past 100 years as the ‘‘American the area. Whether it is testing water preciate the useful and wide-ranging Century,’’ Americans are anxious quality, acquiring at-risk lands or re- discussions that we shared. about the challenges facing our coun- habilitating nearly 2000 animals a year, In New Zealand, the trade delegation try. We wonder whether our children the conservancy makes Florida a bet- was able to visit several cutting-edge and grandchildren will enjoy the same ter place to live. agricultural facilities, including a rev- standard of living we have known. Throughout my years in public serv- olutionary robotic milking station, an Faced with this uncertainty, some ice, the conservancy has been an ally advanced agricultural research station, Americans look at the Pacific Rim and and a friend in the work of preserving and an agricultural technology incu- see danger. They see the rise of China’s Florida’s natural resources. I hope that bator. Many of the Montanans who par- and Asia’s economic prowess as a for the next 40 years and beyond, this ticipated in the trip have gone home threat to American prosperity. wonderful organization will continue

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S738 CONGRESSIONAL RECORD — SENATE February 1, 2005 to help Florida and its citizens enjoy ated with homeland security tasks and by increasing the supply of vaccines; to the the beauty the state has been blessed training. Successful programs, such as Committee on Health, Education, Labor, and with. FIRE Act grants, the COPS program, Pensions. By Ms. MURKOWSKI: f and the Emergency Management Per- S. 227. A bill for the relief of Ernesto formance Grant program, are protected CONFIRMATION OF SAMUEL Guillen; to the Committee on the Judiciary. in this legislation. BODMAN AS SECRETARY OF EN- By Mr. CRAPO: The legislation also tackles the con- S. 228. A bill to amend the Public Health ERGY troversial topic of how to allocate Service Act to establish an Office of Men’s Mr. HATCH. Mr. President, I rise funding. I believe it has struck a fair Health; to the Committee on Health, Edu- today to express my support for the balance by both allocating funding cation, Labor, and Pensions. Senate’s confirmation of Dr. Samuel based on threat, as recommended by By Mr. BINGAMAN (for himself and Bodman as our new Secretary of En- Mr. DOMENICI): the 9/11 Commission and others, and S. 229. A bill to clear title to certain real ergy. maintaining baseline funding so that property in New Mexico associated with the I believe Dr. Bodman will bring con- States and local officials can have a Middle Rio Grande Project, and for other siderable skill to the position of Sec- predictable stream of funding to meet purposes; to the Committee on Energy and retary of Energy. Dr. Bodman’s distin- the homeland security needs faced by Natural Resources. guished career speaks for itself. In the all jurisdictions. As Senator COLLINS By Mr. SCHUMER (for himself and Mr. private sector, he excelled as a pro- noted, the support this bill has gotten GRAHAM): S. 230. A bill to improve railroad safety; to fessor at MIT, president of an invest- from Senators from both large and ment company, and chairman and CEO the Committee on Commerce, Science, and small States is indicative of the bal- Transportation. of a worldwide industrial company. In anced approach taken by this legisla- By Mr. SMITH (for himself and Mr. these positions, he gained a great deal tion. WYDEN): of knowledge in financial markets and The Senate adopted this measure by S. 231. A bill to authorize the Bureau of the impact energy and technology has voice vote in the last Congress as an Reclamation to participate in the rehabilita- on those markets. He further proved amendment to the intelligence reform tion of the Wallowa Lake Dam in Oregon, his capabilities in his service as Deputy bill and it is my hope that the Senate and for other purposes; to the Committee on Secretary of Commerce and Deputy will soon take up and pass this impor- Energy and Natural Resources. By Mr. SMITH: Secretary of the Treasury. There is no tant bill. Simplifying and rationalizing S. 232. A bill to authorize the Secretary of question that Dr. Bodman is qualified the current homeland security grant the Interior, acting through the Bureau of to assume this important position. system should be a top priority. I urge Reclamation, to assist in the implementa- As a Nation, we are far too dependent my colleagues to support this legisla- tion of fish passage and screening facilities on foreign sources of energy and must tion and to adequately allocate re- at non-Federal water projects, and for other work to increase our energy independ- sources to meet our homeland security purposes; to the Committee on Energy and ence. While I support domestic oil pro- needs. Natural Resources. duction, I also believe that we must By Mr. ROBERTS: f S. 233. A bill to increase the supply of qual- continue to develop alternative sources REPORTS OF COMMITTEES ity child care; to the Committee on Health, of energy in the United States. In my Education, Labor, and Pensions. home State, Utah State University is The following reports of committees By Mr. DODD: working with the Department of En- were submitted: S. 234. A bill for the relief of Majan Jean; ergy to that end. I was pleased that the By Mr. WARNER, from the Committee on to the Committee on the Judiciary. Department of Energy recently award- Armed Services, without amendment: By Mr. ENSIGN (for himself and Mr. ed Utah State University a grant to S. Res. 29. An original resolution author- REID): S. 235. A bill to direct the Secretary of Ag- further the university’s studies into al- izing expenditures by the Committee on Armed Services. riculture to sell certain parcels of Federal ternative energy research and develop- By Mr. STEVENS, from the Committee on land in Carson City and Douglas County, Ne- ment programs. Such programs are es- Commerce, Science, and Transportation, vada; to the Committee on Energy and Nat- sential to ensure we can meet our Na- without amendment: ural Resources. tion’s future energy needs, and I ad- S. Res. 30. An original resolution author- By Mr. NELSON of Nebraska (for him- mire the university for being at the izing expenditures by the Committee on self, Ms. COLLINS, Ms. CANTWELL, and forefront on this issue. Commerce, Science, and Transportation. Mrs. MURRAY): I have a great deal of respect for Dr. By Mr. LUGAR, from the Committee on S. 236. A bill to amend title XVIII of the Foreign Relations, without amendment: Social Security Act to clarify the treatment Bodman, and I look forward to working S. Res. 32. An original resolution author- of payment under the medicare program for with him on the compelling energy izing expenditures by the Committee on For- clinical laboratory tests furnished by crit- issues facing our Nation. While there eign Relations. ical access hospitals; to the Committee on will certainly be challenges to over- f Finance. come as we work to shape our energy By Mr. LAUTENBERG: policy and increase our energy inde- INTRODUCTION OF BILLS AND S. 237. A bill to amend title 23, United pendence, I am confident that Dr. JOINT RESOLUTIONS States Code, to ensure that certain states re- Bodman will serve admirably in the po- The following bills and joint resolu- main eligible for Federal highway funds; to tions were introduced, read the first the Committee on Environment and Public sition. Works. f and second times by unanimous con- By Mr. HAGEL: sent, and referred as indicated: S. 238. A bill to amend the Internal Rev- HOMELAND SECURITY GRANT By Mr. KENNEDY (for himself, Mr. enue code of 1986 to exclude from gross in- ENHANCEMENT ACT CORZINE, and Mr. LAUTENBERG): come interest received on loans secured by Mr. FEINGOLD. Mr. President, I am S. 224. A bill to extend the period for agricultural real property; to the Committee pleased to again be an original cospon- COBRA coverage for victims of the terrorist on Finance. sor of Senator COLLINS’ Homeland Se- attacks of September 11, 2001; to the Com- By Ms. SNOWE (for herself, Mr. curity Grant Enhancement Act. This mittee on Health, Education, Labor, and WYDEN, Mr. MCCAIN, Mrs. FEINSTEIN, Pensions. and Mr. FEINGOLD): important legislation will coordinate By Mr. STEVENS (for himself, Mr. S. 239. A bill to reduce the costs of pre- and simplify the often complicated and INOUYE, and Ms. MURKOWSKI): scription drugs for medicare beneficiaries, confusing homeland security grant S. 225. A bill to direct the Secretary of the and for other purposes; to the Committee on process. This bill will make it much Interior to undertake a program to reduce Finance. easier for local first responders to get the risks from and mitigate the effects of By Mr. KERRY (for himself, Mr. funding by reducing the many, and avalanches on recreational users of public LEAHY, Mrs. MURRAY, Mr. ROCKE- often redundant, grant applications land; to the Committee on Energy and Nat- FELLER, Mr. DURBIN, Mr. PRYOR, and ural Resources. Ms. STABENOW): steps. The amendment also gives local By Mr. DEWINE (for himself and Mrs. S. 240. A bill to amend the Internal Rev- officials far more flexibility in spend- CLINTON): enue Code of 1986 to allow small business em- ing homeland security dollars, includ- S. 226. A bill to amend the Public Health ployers a credit against income tax with re- ing paying for overtime costs associ- Service Act to improve immunization rates spect to employees who participate in the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S739 military reserve components and are called S. 251. A bill to authorize the Secretary of By Mr. COLEMAN (for himself and Mr. to active duty and with respect to replace- the Interior, acting through the Bureau of DURBIN): ment employees and to allow a comparable Reclamation, to conduct a water resource S. Res. 31. A resolution expressing the credit for activated military reservists who feasibility study for the Little Butte/Bear sense of the Senate that the week of August are self-employed, and for other purposes; to Creek Sub-basins in Oregon; to the Com- 7, 2005, be designated as ‘‘National Health the Committee on Finance. mittee on Energy and Natural Resources. Center Week’’ in order to raise awareness of By Ms. SNOWE (for herself, Mr. ROCKE- By Mr. REID (for himself and Mr. EN- health services provided by community, mi- FELLER, Mr. STEVENS, and Mr. SIGN): grant, public housing, and homeless health INOUYE): S. 252. A bill to direct the Secretary of the centers, and for other purposes; to the Com- S. 241. A bill to amend section 254 of the Interior to convey certain land in Washoe mittee on the Judiciary. Communications Act of 1934 to provide that County, Nevada, to the Board of Regents of By Mr. LUGAR: funds received as universal service contribu- the University and Community College Sys- S. Res. 32. An original resolution author- tions and the universal service support pro- tem of Nevada; to the Committee on Energy izing expenditures by the Committee on For- grams established pursuant to that section and Natural Resources. eign Relations; from the Committee on For- are not subject to certain provisions of title By Mr. REID (for himself and Mr. EN- eign Relations; to the Committee on Rules 31, United States Code, commonly known as SIGN): and Administration. the Antideficiency Act; to the Committee on S. 253. A bill to direct the Secretary of the By Mr. LEVIN (for himself, Ms. COL- Commerce, Science, and Transportation. Interior to convey certain land to the land to LINS, Mr. LUGAR, Mr. REED, Mr. LAU- By Mrs. HUTCHISON (for herself and the Edward H. McDaniel American Legion TENBERG, Mrs. FEINSTEIN, Mr. JOHN- Mr. CORNYN): Post No. 22 in Pahrump, Nevada, for the con- SON, Mr. JEFFORDS, Mr. WYDEN, Ms. S. 242. A bill to establish 4 memorials to struction of a post building and memorial CANTWELL, Mr. DODD, Mr. FEINGOLD, the Space Shuttle Columbia in the State of park for use by the American Legion, other Mr. DURBIN, Mr. SCHUMER, Mrs. MUR- Texas; to the Committee on Energy and Nat- veterans’ groups, and the local community; RAY, and Mr. DORGAN): ural Resources. to the Committee on Energy and Natural Re- S. Res. 33. A resolution urging the Govern- By Mr. THOMAS: sources. ment of Canada to end the commercial seal S. 243. A bill to establish a program and hunt; to the Committee on Foreign Rela- criteria for National Heritage Areas in the By Mr. REID (for himself and Mr. EN- tions. United States, and for other purposes; to the SIGN): By Mr. SARBANES (for himself, Ms. Committee on Energy and Natural Re- S. 254. A bill to direct the Secretary of the COLLINS, Mr. AKAKA, Mr. WARNER, sources. Interior to convey certain land to Lander Mr. LIEBERMAN, Mr. ALLEN, Ms. MI- By Mr. THOMAS: County, Nevada, and the Secretary of the In- S. 244. A bill to extend the deadline for terior to convey certain land to Eureka KULSKI, Ms. SNOWE, Mr. JOHNSON, Mr. commencement of construction of a hydro- County, Nevada, for continued use as ceme- DAYTON, Mr. LAUTENBERG, Mr. KEN- electric project in the State of Wyoming; to teries; to the Committee on Energy and Nat- NEDY, Mr. DURBIN, Mr. CORZINE, Ms. the Committee on Energy and Natural Re- ural Resources. LANDRIEU, Mr. BINGAMAN, and Mrs. sources. By Mr. HAGEL (for himself and Mr. MURRAY): By Ms. COLLINS (for herself, Ms. NELSON of Nebraska): S. Con. Res. 8. A concurrent resolution ex- pressing the sense of Congress that there CANTWELL, Ms. SNOWE, Mrs. MURRAY, S. 255. A bill to amend the Residential should continue to be parity between the ad- Mr. JEFFORDS, and Mr. DEWINE): Lead-Based Paint Hazard Reduction Act of S. 245. A bill to provide for the develop- 1992 to provide assistance for residential justments in the pay of members of the uni- ment and coordination of a comprehensive properties designated as Superfund sites; to formed services and the adjustments in the and integrated United States research pro- the Committee on Banking, Housing, and pay of civilian employees of the United gram that assists the people of the United Urban Affairs. States; to the Committee on Homeland Secu- States and the world to understand, assess, By Mr. GRASSLEY (for himself, Mr. rity and Governmental Affairs. and predict human-induced and natural proc- HATCH, Mr. SESSIONS, Mr. THUNE, Mr. f esses of abrupt climate change; to the Com- CARPER, Mr. NELSON of Nebraska, Mr. mittee on Commerce, Science, and Transpor- SHELBY, and Mr. ENZI): ADDITIONAL COSPONSORS tation. S. 256. A bill to amend title 11 of the S. 11 By Mr. BUNNING (for himself, Mr. United States Code, and for other purposes; At the request of Mrs. CLINTON, her NELSON of Nebraska, Mr. DEMINT, to the Committee on the Judiciary. name was added as a cosponsor of S. 11, Mr. CRAIG, Mr. INHOFE, Mr. f a bill to amend title 10, United States BROWNBACK, Mr. LUGAR, Mr. Code, to ensure that the strength of the SANTORUM, Mr. COLEMAN, and Mr. SUBMISSION OF CONCURRENT AND DOMENICI): SENATE RESOLUTIONS Armed Forces and the protections and S. 246. A bill to repeal the sunset of the benefits for members of the Armed Economic Growth and Tax Relief Reconcili- The following concurrent resolutions Forces and their families are adequate ation Act of 2001 with respect to the expan- and Senate resolutions were read, and for keeping the commitment of the sion of the adoption credit and adoption as- referred (or acted upon), as indicated: people of the United States to support sistance programs; to the Committee on Fi- By Mr. FRIST (for himself, Mr. REID, nance. their service members, and for other Mr. LUGAR, Mr. BIDEN, Mr. LEVIN, Mr. By Mr. SMITH (for himself and Mr. purposes. SUNUNU, Mr. CHAFEE, Mr. HAGEL, and WYDEN): S. 12 Mr. FEINGOLD): S. 247. A bill to authorize the Secretary of S. Res. 27. A resolution commending the At the request of Mrs. CLINTON, her the Interior to assist in the planning, design, results of the January 9, 2005, Palestinian name was added as a cosponsor of S. 12, and construction of the Tumalo Irrigation Presidential Elections; considered and a bill to combat international ter- District Water Conservation Project in agreed to. Deschutes County, Oregon; to the Committee rorism, and for other purposes. By Mr. DODD (for himself, Mr. COCH- on Energy and Natural Resources. S. 19 RAN, Mr. AKAKA, Mr. BAUCUS, Mr. By Mr. DEMINT: At the request of Mr. NELSON of Flor- S. 248. A bill to amend title 23, United BINGAMAN, Mr. DURBIN, Mr. FEIN- GOLD, Mr. HAGEL, Mr. KENNEDY, Mr. ida, his name was added as a cosponsor States Code, to permit States to carry out of S. 19, a bill to reduce budget deficits surface transportation program projects on LAUTENBERG, Mr. LIEBERMAN, and Mr. local roads to address safety concerns; to the LUGAR): by restoring budget enforcement and Committee on Environment and Public S. Res. 28. A resolution designating the strengthening fiscal responsibility. Works. year 2005 as the ‘‘Year of Foreign Language S. 27 Study’’; to the Committee on the Judiciary. By Mr. REID (for himself, Mr. ENSIGN, At the request of Mrs. HUTCHISON, the By Mr. WARNER: and Mr. BENNETT): name of the Senator from Nevada (Mr. S. 249. A bill to establish the Great Basin S. Res. 29. An original resolution author- REID) was added as a cosponsor of S. 27, National Heritage Route in the States of Ne- izing expenditures by the Committee on vada and Utah; to the Committee on Energy Armed Services; from the Committee on a bill to amend the Internal Revenue and Natural Resources. Armed Services; to the Committee on Rules Code of 1986 to make permanent the de- By Mr. ENZI (for himself and Mr. KEN- and Administration. duction of State and local general sales NEDY): By Mr. STEVENS: taxes. S. 250. A bill to amend the Carl D. Perkins S. Res. 30. An original resolution author- S. 37 Vocational and Technical Education Act of izing expenditures by the Committee on 1998 to improve the Act; to the Committee Commerce, Science, and Transportation; At the request of Mrs. HUTCHISON, the on Health, Education, Labor, and Pensions. from the Committee on Commerce, Science, names of the Senator from Colorado By Mr. SMITH (for himself and Mr. and Transportation; to the Committee on (Mr. ALLARD) and the Senator from WYDEN): Rules and Administration. Georgia (Mr. ISAKSON) were added as

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S740 CONGRESSIONAL RECORD — SENATE February 1, 2005 cosponsors of S. 37, a bill to extend the 193, a bill to increase the penalties for prescribing drug addiction treatments by special postage stamp for breast cancer violations by television and radio medical practitioners in group practices, and research for 2 years. broadcasters of the prohibitions for other purposes; to the Committee on the Judiciary. S. 40 against transmission of obscene, inde- At the request of Mrs. LINCOLN, the cent, and profane language. f name of the Senator from Rhode Island S. 195 STATEMENTS ON INTRODUCED (Mr. REED) was added as a cosponsor of At the request of Mr. LIEBERMAN, the S. 40, a bill to amend title XVIII of the names of the Senator from Massachu- BILLS AND JOINT RESOLUTIONS Social Security Act to provide medi- setts (Mr. KERRY), the Senator from By Mr. KENNEDY (for himself, care beneficiaries with access to geri- Massachusetts (Mr. KENNEDY) and the Mr. CORZINE, and Mr. LAUTEN- atric assessments and chronic care Senator from Vermont (Mr. LEAHY) BERG): management, and for other purposes. were added as cosponsors of S. 195, a S. 224. A bill to extend the period for bill to provide for full voting represen- S. 44 COBRA coverage for victims of the ter- tation in Congress for the citizens of At the request of Mr. HAGEL, the rorist attacks of September 11, 2001; to names of the Senator from Florida (Mr. the District of Columbia, and for other the Committee on Health, Education, purposes. NELSON) and the Senator from Mis- Labor, and Pensions. S. 211 sissippi (Mr. COCHRAN) were added as Mr. KENNEDY. Mr. President, one of At the request of Mrs. CLINTON, the the greatest domestic challenges facing cosponsors of S. 44, a bill to amend names of the Senator from Massachu- title 10, United States Code, to increase our country today is the soaring cost of setts (Mr. KERRY), the Senator from the amount of the military death gra- health care. It’s a serious problem for South Dakota (Mr. JOHNSON) and the millions of families. But when the chief tuity from $12,000 to $100,000. Senator from Pennsylvania (Mr. SPEC- S. 50 income earner in a family suddenly be- TER) were added as cosponsors of S. 211, comes unemployed, the problem can be At the request of Ms. CANTWELL, the a bill to facilitate nationwide avail- critical, and we give a helping hand. name of the Senator from Minnesota ability of 2-1-1 telephone service for in- We give them the opportunity to con- (Mr. DAYTON) was added as a cosponsor formation and referral on human serv- tinue their coverage through their em- of S. 50, a bill to authorize and ices, volunteer services, and for other strengthen the National Oceanic and purposes. ployer for a reasonable period. Fami- lies who lost loved ones on September Atmospheric Administration’s tsunami S. 215 detection, forecast, warning, and miti- At the request of Mr. INOUYE, the 11 deserve the same opportunity until gation program, and for other pur- name of the Senator from Hawaii (Mr. they can land on their feet again. poses. AKAKA) was added as a cosponsor of S. The Continuing Care for Recovering Families Act I am introducing today in S. 51 215, a bill to amend the Native Hawai- ORZINE At the request of Mr. BROWNBACK, the ian Health Care Improvement Act to the Senate with Senator C and name of the Senator from Mississippi revise and extend that Act. Senator LAUTENBERG, and Congressman ARKEY (Mr. COCHRAN) was added as a cospon- S. 223 M is introducing today in the sor of S. 51, a bill to ensure that women At the request of Mr. HARKIN, the House of Representatives, recognizes seeking an abortion are fully informed name of the Senator from Wisconsin that many of the September 11 families regarding the pain experienced by their (Mr. FEINGOLD) was added as a cospon- are still struggling to recover and we unborn child. sor of S. 223, a bill to amend the Fair have an obligation to assist them. Some of the families have found ways S. 77 Labor Standards Act of 1938 to repeal to cover their health costs by pur- At the request of Mr. DAYTON, his any weakening of overtime protections chasing private insurance or obtaining name was added as a cosponsor of S. 77, and to avoid future loss of overtime grant assistance on their own. For oth- a bill to amend titles 10 and 38, United protections due to inflation. ers, employers have agreed to provide States Code, to improve death benefits S. CON. RES. 4 At the request of Mr. NELSON of Flor- coverage. For still other families, how- for the families of deceased members of ida, the name of the Senator from Mis- ever, the safety net has fallen apart, the Armed Forces, and for other pur- sissippi (Mr. LOTT) was added as a co- because their coverage has expired poses. sponsor of S. Con. Res. 4, a concurrent under COBRA—the temporary low-cost At the request of Mr. SESSIONS, the name of the Senator from Maine (Ms. resolution expressing the sense of the continuation of coverage available Congress that the Department of De- under current Federal law for those COLLINS) was added as a cosponsor of S. fense should continue to exercise its 77, supra. who change their job, lose their job or statutory authority to support the ac- for families that lose their chief in- S. 103 tivities of the Boy Scouts of America, come earner through death. At the request of Mr. TALENT, the in particular the periodic national and The Continuing Care for Recovering name of the Senator from New Mexico world Boy Scout Jamborees. Families Act will give spouses and (Mr. DOMENICI) was added as a cospon- S. RES. 8 children of victims of September 11 the sor of S. 103, a bill to respond to the il- At the request of Ms. COLLINS, the ability to purchase or continue to pur- legal production, distribution, and use name of the Senator from Massachu- chase coverage under COBRA indefi- of methamphetamine in the United setts (Mr. KENNEDY) was added as a co- nitely, as long as they enroll within 120 States, and for other purposes. sponsor of S. Res. 8, a resolution ex- days after passage of the Act or 120 S. 167 pressing the sense of the Senate re- days after they lose their COBRA cov- At the request of Mr. LEAHY, the garding the maximum amount of a erage. Eligibility for the program name of the Senator from Tennessee Federal Pell Grant. would expire only if they become eligi- (Mr. ALEXANDER) was added as a co- S. RES. 20 ble for Medicare. sponsor of S. 167, a bill to provide for At the request of Mr. KENNEDY, the The families of September 11 have the protection of intellectual property names of the Senator from Connecticut shown great courage and extraordinary rights, and for other purposes. (Mr. DODD), the Senator from Pennsyl- resilience. But we still have much S. 188 vania (Mr. SANTORUM), the Senator more to do to help them on their long from Nebraska (Mr. HAGEL), the Sen- At the request of Mrs. FEINSTEIN, the and arduous road to recovery, and I ator from New Jersey (Mr. LAUTEN- name of the Senator from Virginia (Mr. hope very much that we can pass this BERG), the Senator from Missouri (Mr. ALLEN) was added as a cosponsor of S. legislation this year. It will only affect TALENT) and the Senator from Hawaii 188, a bill to amend the Immigration a small number of families. But for and Nationality Act to authorize ap- (Mr. AKAKA) were added as cosponsors of S. Res. 20, a resolution designating them, it will make a world of a dif- propriations for fiscal years 2005 ference. through 2011 to carry out the State January 2005 as ‘‘National Mentoring Criminal Alien Assistance Program. Month’’. By Mr. STEVENS (for himself, S. 193 f Mr. INOUYE, and Ms. MUR- At the request of Mr. BROWNBACK, the MEASURES DISCHARGED KOWSKI): name of the Senator from Utah (Mr. S. 45. A bill to amend the Controlled Sub- S. 225. A bill to direct the Secretary HATCH) was added as a cosponsor of S. stances Act to lift the patient limitation on of the Interior to undertake a program

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S741 to reduce the risks from and mitigate to prevent any future shortage. As a leaving only one company to produce the effects of avalanches on rec- Senator, and more importantly, as a tetanus vaccine for the entire country. reational users of public land; to the parent of eight and grandparent of The remaining company increased pro- Committee on Energy and Natural Re- eight, I believe that nothing is more duction to accommodate all of the sources. important than the health and safety needs of the United States. Despite Mr. STEVENS. Mr. President, today of our children. While we are not cur- this, it still required about 11 months I introduce, with Senators INOUYE and rently experiencing a shortage, we for the vaccine to be ready for release. MURKOWSKI, the Federal Land Rec- know that the vaccine market is unsta- In other words, it took 11 months for reational Visitor Protection Act of ble and unpredictable. According to the the company to ramp-up production to 2005. Centers for Disease Control’s National meet demand. Our bill would create a Across our State of Alaska, Western Immunization Program, there were notification mechanism to capture States, and areas of the Northeast, several reasons for the shortages in those drugs and vaccines leaving the local governments and businesses past years. The CDC concluded and market so we can avoid future vaccine struggle each year to remove potential posted on its website that the ‘‘reasons and drug shortages. avalanches or recover from the disas- for these shortages were multi-facto- Our bill also would require the Sec- trous effects of avalanches. rial and included companies leaving retary, acting through the CDC, to de- While such damage can bring hard- the vaccine market, manufacturing or velop a plan for the purchase, storage, ships to many local communities, none production problems, and insufficient and rotation of a supply of vaccines can compare with the loss of a friend or stockpiles.’’ sufficient to provide routinely rec- family member. The U.S. averages over The CDC did as good a job as it could, ommended vaccinations for a six- 20 deaths a year from avalanches, a considering the vaccine shortages our month period for children and adults. majority of which are results of rec- Nation has faced in past years. The Essentially, it would create a frame- reational activities in unmitigated av- agency’s website has posted informa- work for the CDC to develop a national alanche areas. Earlier in January, 3 tion about shortages and released re- vaccine stockpile to ensure that child- people were killed in two separate ava- vised vaccine schedules to keep our hood vaccine shortages simply do not lanches in northern Idaho and Utah, public informed and knowledgeable occur. bringing the total number of people al- about vaccination shortages. But, even Our children need and deserve timely ready killed in the U.S. this winter sea- with the strong efforts of the CDC, we vaccinations. When childhood vaccina- son to 16. need to work toward preventing a fu- tions are in short supply or are un- Some States try and set aside money ture vaccine shortage. We need a more available, they do without, living un- for rescues prior to the winter season, permanent solution. The bill I am in- protected against disease. That should knowing that the resources required to troducing will go a long way toward never happen. The bill we are intro- clear all avalanche threats are not at doing just that. ducing today is another step toward hand. The bill we are introducing today— ensuring that children get the vaccines This bill brings those resources to the Improved Vaccine Supply Act— they need and that they get them at the entities that need them the most, would help bring some stability to our the right time. I urge my colleagues to enabling us to significantly reduce the fragile vaccine supply. Unlike drug join me in support of this important effects of avalanches on visitors, rec- manufacturers, vaccine manufacturers public health legislation. I ask unanimous consent that the reational users, transportation cor- do not have to give notice when they stop making a vaccine, whether the text the bill be printed in the RECORD. ridors, and our local communities. There being no objection, the bill was vaccine is withdrawn from the market ordered to be printed in the RECORD, as By Mr. DEWINE (for himself and intentionally or because the manufac- follows: Mrs. CLINTON): turer is simply unable to continue S. 226. A bill to amend the Public making the vaccine. Essentially, these S. 226 Health Service Act to improve immu- manufacturers leave the marketplace Be it enacted by the Senate and House of Rep- nization rates by increasing the supply resentatives of the United States of America in with no notice and no warning. Most Congress assembled, of vaccines; to the Committee on doctors and hospitals—and more im- SECTION 1. SHORT TITLE. Health, Education, Labor, and Pen- portantly parents and older adults— This Act may be cited as the ‘‘Improved sions. often have no idea that a vaccine is in Vaccine Supply Act’’. Mr. DEWINE. Mr. President, I rise short supply until they line up for a flu SEC. 2. SUPPLY OF VACCINES. today, along with my colleague from shot or go to the doctor for their Title XXI of the Public Health Service Act New York, Senator CLINTON, to intro- child’s immunizations. (42 U.S.C. 300aa–1 et seq.) is amended by add- duce the Improved Vaccine Supply Our bill would change this. It would ing at the end the following: Act—a bill that would help ensure that require any manufacturer of a vaccine ‘‘Subtitle 3—Adequate Vaccine Supply our Nation’s public health system has to give a one-year notice of discontinu- ‘‘SEC. 2141. SUPPLY OF VACCINES. an adequate vaccine supply. ance. By giving notice, the Centers for ‘‘(a) IN GENERAL.— We all know that vaccinations are Disease Control (CDC) and the Food ‘‘(1) PLAN.—Not later than 6 months after the date of enactment of this section, the critical in our efforts to keep our popu- and Drug Administration (FDA) would Secretary, acting through the Director of lation, particularly children and the el- be better able to ensure an adequate the Centers for Disease Control and Preven- derly, healthy. They are key to pro- vaccine supply for our Nation’s popu- tion, shall develop a plan for the purchase, tecting the elderly from influenza dur- lation. Additionally, our bill would re- storage, and rotation of a supply of vaccines ing flu season and protecting children quire all drug and vaccine manufactur- sufficient to provide routinely recommended from contracting polio or the mumps. ers to give notice when they withdraw vaccinations for a 6-month period for— Vaccinations, inoculations, immuniza- from the market. This change would ‘‘(A) a national stockpile of vaccines for all tions—whatever you want to call ensure that we have a better sense of children as authorized under section 1928(d)(6) of the Social Security Act (42 them—also help lessen the threat of who is making vaccines and drugs and U.S.C. 1396s(d)(6)); and bacterial or viral infections and poten- would allow the CDC and FDA to mon- ‘‘(B) adults. tial disease outbreaks. itor the manufacturer’s production and ‘‘(2) SUPPLY.—The supply of vaccines under Currently, it is recommended that release of vaccines. paragraph (1) shall— children receive 12 routine vaccina- Let me explain why this is impor- ‘‘(A) include all vaccines routinely rec- tions against preventable diseases. tant. Vaccines, or biological products, ommended for children by the Advisory Com- These vaccinations are given in a series are difficult to develop and manufac- mittee on Immunization Practices; and of shots and booster shots by the age of ture. They are more complex than ‘‘(B) include all vaccines routinely rec- two, with an additional four doses later drugs. Because of this, it takes longer ommended for adults by the Advisory Com- mittee on Immunization Practices. in life. This ends up being about 16 to for a biological product to reach the ‘‘(3) SUPPLY AUTHORITY.—The Secretary 20 doses of vaccines for children. market. For example, a pharma- shall carry out— Any shortage of vaccines is not ac- ceutical company that manufactured ‘‘(A) paragraph (2)(A) using the authority ceptable, and we should do all we can tetanus vaccine stopped producing it, provided for under section 1928(d)(6) of the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S742 CONGRESSIONAL RECORD — SENATE February 1, 2005 Social Security Act (42 U.S.C. 1396s(d)(6)); and for other purposes; to the Com- There being no objection, the bill was and mittee on Energy and Natural Re- ordered to be printed in the RECORD, as ‘‘(B) paragraph (2)(B) using— sources. follows: ‘‘(i) the authority provided for under sec- Mr. BINGAMAN. Mr. President, S. 229 tion 317; and today I am pleased to introduce the Al- ‘‘(ii) any other authority relating to the Be it enacted by the Senate and House of Rep- vaccines described in such paragraph. buquerque Biological Park Title Clari- resentatives of the United States of America in ‘‘(b) SUBMISSION OF PLAN.— fication Act with my colleague Senator Congress assembled, ‘‘(1) IN GENERAL.—Not later than 1 year DOMENICI. This bill, which passed the SECTION 1. SHORT TITLE. after the date of enactment of this section, Senate in the 108th Congress, is nec- This Act may be cited as the ‘‘Albuquerque the Secretary shall submit the plan devel- essary to assist the City of Albu- Biological Park Title Clarification Act’’. oped under subsection (a) to— querque, NM clear title to two parcels SEC. 2. PURPOSE. ‘‘(A) the Committee on Health, Education, of land located along the Rio Grande. If The purpose of this Act is to direct the Labor, and Pensions of the Senate; title is cleared, the City will be able to Secretary of the Interior to issue a quitclaim ‘‘(B) the Committee on Finance of the Sen- deed conveying any right, title, and interest ate; and move forward with its plans to improve the United States may have in and to ‘‘(C) the Committee on Energy and Com- the properties as part of a Biological Tingley Beach or San Gabriel Park to the merce of the House of Representatives. Park Project, a city funded initiative City, thereby removing the cloud on the ‘‘(2) INCLUSIONS.—The plan shall include a to create a premier environmental edu- City’s title to these lands. discussion of the considerations that cational center for its citizens, and the SEC. 3. DEFINITIONS. formed— entire State of New Mexico. In this Act: ‘‘(A) the basis for the plan; and The Biological Park Project has been (1) CITY.—The term ‘‘City’’ means the City ‘‘(B) the prioritization of the schedule for in the works since 1987 when the City of Albuquerque, New Mexico. purchasing vaccines set forth in the plan. (2) MIDDLE RIO GRANDE CONSERVANCY DIS- ‘‘(c) IMPLEMENTATION OF THE PLAN.—Not began to develop an aquarium and bo- tanic garden along the banks of the Rio TRICT.—The terms ‘‘Middle Rio Grande Con- later than September 30, 2007, the Secretary servancy District’’ and ‘‘MRGCD’’ mean a shall fully implement the plan developed Grande. Those facilities constitute just political subdivision of the State of New under subsection (a). a portion of the overall project. As part Mexico, created in 1925 to provide and main- ‘‘(d) NOTICE.— of this effort, in 1997, the City pur- tain flood protection and drainage, and ‘‘(1) IN GENERAL.—For the purposes of chased two properties from the Middle maintenance of ditches, canals, and distribu- maintaining and administering the supply of Rio Grande Conservancy District tion systems for irrigation and water deliv- vaccines described under subsection (a), the (MRGCD) for $3,875,000. The first prop- ery and operations in the Middle Rio Grande Secretary shall require by contract that the Valley. manufacturer of a vaccine included in such erty, Tingley Beach, had been leased by the City from MRGCD since 1931 and (3) MIDDLE RIO GRANDE PROJECT.—The term supply provide not less than 1 year notice to ‘‘Middle Rio Grande Project’’ means the the Secretary of a discontinuance of the used for public park purposes. The sec- works associated with water deliveries and manufacture of the vaccine, or of other fac- ond property, San Gabriel Park, had operations in the Rio Grande basin as au- tors, that may prevent the manufacturer been leased by the City since 1963, and thorized by the Flood Control Act of 1948 from providing vaccines pursuant to an ar- also used for public park purposes. (Public Law 80–858; 62 Stat. 1175) and the rangement made to carry out this section. In the year 2000, the City’s plans were Flood Control Act of 1950 (Public Law 81–516; ‘‘(2) REDUCTION OF PERIOD OF NOTICE.—The interrupted when the U.S. Bureau of 64 Stat. 170). notification period required under paragraph Reclamation asserted that in 1953, it (4) SAN GABRIEL PARK.—The term ‘‘San Ga- (1) may be reduced if the manufacturer cer- briel Park’’ means the tract of land con- tifies to the Secretary that good cause exists had acquired ownership of all of MRGCD’s property associated with the taining 40.2236 acres, more or less, situated for reduction, under the conditions described within Section 12 and Section 13, T10N, R2E, in section 506C(b) of the Federal Food, Drug, Middle Rio Grande Project. The United N.M.P.M., City of Albuquerque, Bernalillo and Cosmetic Act (21 U.S.C. 356c). States’ assertion called into question County, New Mexico, and described by New ‘‘(e) PROCEEDS.—Any proceeds received by the validity of the 1997 transaction be- Mexico State Plane Grid Bearings (Central the Secretary from the sale of vaccines con- tween the City and MRGCD. Both Zone) and ground distances in a Special War- tained in the supply maintained pursuant to MRGCD and the City dispute the ranty Deed conveying the property from this section, shall be available to the Sec- MRGCD to the City, dated November 25, 1997. retary for the purpose of purchasing addi- United States’ claim of ownership. (5) TINGLEY BEACH.—The term ‘‘Tingley tional vaccines for the supply. Such proceeds This dispute is unnecessarily delay- ing and complicating the City’s Beach’’ means the tract of land containing shall remain available until expended. 25.2005 acres, more or less, situated within ‘‘(f) ONGOING REPORTS.— progress in developing the Biological Section 13 and Section 24, T10N, R2E, ‘‘(1) IN GENERAL.—Not later than 2 years Park Project. If the matter is simply N.M.P.M., City of Albuquerque, Bernalillo after submitting the plan pursuant to sub- left to litigation, the delay will be in- County, New Mexico, and described by New section (b), and periodically thereafter, the definite. Reclamation has already de- Mexico State Plane Grid Bearings (Central Secretary shall submit a report to the Com- termined that the two properties are Zone) and ground distances in a Special War- mittees identified in subsection (b)(1) that— surplus to the needs of the Middle Rio ranty Deed conveying the property from ‘‘(A) details the progress made in imple- MRGCD to the City, dated November 25, 1997. menting the plan developed under subsection Grande Project. Moreover, the record (a); and indicates that Reclamation had once SEC. 4. CLARIFICATION OF PROPERTY INTEREST. (a) REQUIRED ACTION.—The Secretary of ‘‘(B) notes impediments, if any, to imple- considered releasing its interest in the the Interior shall issue a quitclaim deed con- menting the plan developed under subsection properties for $1.00 each. Obviously, the veying any right, title, and interest the (a). federal interest in these properties is United States may have in and to Tingley ‘‘(2) RECOMMENDATION.—The Secretary low while the local interest is high. shall include in the first of such reports re- Beach and San Gabriel Park to the City. This bill is narrowly tailored to ad- (b) TIMING.—The Secretary shall carry out quired under paragraph (1)— the action in subsection (a) as soon as prac- ‘‘(A) a recommendation as to whether the dress this local interest, affecting only ticable after the date of enactment of this vaccine supply should be extended beyond the two properties at issue. The gen- title and in accordance with all applicable the 6-month period provided in subsection eral dispute concerning title to project law. (a); and works is left for the courts to decide. (c) NO ADDITIONAL PAYMENT.—The City ‘‘(B) a discussion of the considerations that I hope my colleagues will work with shall not be required to pay any additional formed the recommendation under subpara- me to help resolve this issue. While costs to the United States for the value of graph (A). much of what we do here in the Con- San Gabriel Park and Tingley Beach. ‘‘(g) AUTHORIZATION OF APPROPRIATIONS.— gress is complex and time-consuming There are authorized to be appropriated to SEC. 5. OTHER RIGHTS, TITLE, AND INTERESTS UNAFFECTED. carry out this section such sums as may be work, we should also have the ability (a) IN GENERAL.—Except as expressly pro- necessary for each of fiscal years 2006 to move quickly when necessary and vided in section 4, nothing in this Act shall through 2011.’’. appropriate to solve local problems caused by federal actions. I therefore be construed to affect any right, title, or in- By Mr. BINGAMAN (for himself urge my colleagues to support this leg- terest in and to any land associated with the Middle Rio Grande Project. and Mr. DOMENICI): islation. (b) ONGOING LITIGATION.—Nothing con- S. 229. A bill to clear title to certain I ask unanimous consent that the tained in this Act shall be construed or uti- real property in New Mexico associated text of the bill be printed in the lized to affect or otherwise interfere with with the Middle Rio Grande Project, RECORD. any position set forth by any party in the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S743 lawsuit pending before the United States model technology-based training fordability of the infrastructure, and the District Court for the District of New Mex- courses for child care providers. These training offered through the infrastructure; ico, No. CV 99–1320 JP/RLP–ACE, entitled infrastructures and courses will enable and Rio Grande Silvery Minnow v. John W. Keys, child care providers to receive the (B) make recommendations for improve- III, concerning the right, title, or interest in training, education and support they ments to the infrastructure. and to any property associated with the Mid- (c) APPLICATION.—To be eligible to receive dle Rio Grande Project. need to improve the quality of child a grant under subsection (a), an entity shall care. The ‘‘Caring for Children Act’’ en- submit an application to the Secretary at By Mr. ROBERTS: courages grantees to work with sec- such time and in such manner as the Sec- S. 233. A bill to increase the supply of ondary schools, institutions of higher retary may require, and that includes— quality child care; to the Committee education, state and local govern- (1) a description of the partnership organi- on Health, Education, Labor, and Pen- ments, and child care organizations to zations through which the distance learning sions. promote networking, information shar- programs will be made available; Mr. ROBERTS. Mr. President, I am ing, and resource sharing. These grants (2) the capacity of the infrastructure in will be targeted to those areas with the terms of the number and type of distance pleased and honored today to introduce learning programs that will be made avail- the ‘‘Caring for Children Act’’—a bill fewest training opportunities for child able; designed to help meet the child care care providers. (3) the expected number of individuals to challenges facing families, child care Child care is an issue that impacts participate in the distance learning pro- providers and small businesses around each and every one of us. While parents grams; and the Nation. continue to struggle to meet the con- (4) such additional information as the Sec- Child care, in the home when possible stant demand of work and family, we retary may require. and outside the home when both par- must continue to do our part to expand (d) LIMITATION ON FEES.—No entity receiv- child care options and protect our na- ing a grant under this section may collect ents work, goes right to the heart of fees from an individual for participation in a keeping families strong. Unfortu- tion’s most valuable resource, our chil- dren. I look forward to working with distance learning program funded in whole nately, finding quality, affordable child or in part under this section that exceed the care is one of the most pressing prob- all of my colleagues in this important pro rata share of the amount expended by lems for families in Kansas and around effort. the entity to provide materials for the pro- the country. It is estimated that qual- I ask unanimous consent that the gram and to develop, implement, and main- ity child care can cost as much or more text of the bill be printed in the tain the infrastructure (minus the amount of than college tuition in some areas. RECORD. the grant awarded under this section). There being no objection, the bill was (e) RULE OF CONSTRUCTION.—Nothing in The ‘‘Caring for Children Act’’ takes this section shall be construed as requiring a the first steps in addressing this chal- ordered to be printed in the RECORD, as follows: child care provider to subscribe to or com- lenge through a responsible approach. plete a distance learning program made S. 233 This legislation expands child care op- available under this section. portunities without unnecessary gov- Be it enacted by the Senate and House of Rep- resentatives of the United States of America in SEC. 102. AUTHORIZATION OF APPROPRIATIONS. ernment intervention or mandates. Congress assembled, There is authorized to be appropriated to carry out this title $50,000,000 for each of fis- This legislation will help working fam- SECTION 1. SHORT TITLE. cal years 2006 through 2010. ilies who want quality child care for This Act may be cited as the ‘‘Caring for their children, child care providers who Children Act’’. TITLE II—REMOVAL OF BARRIERS TO IN- aim to provide the highest quality of TITLE I—CHILD CARE TRAINING CREASING THE SUPPLY OF QUALITY care, and small businesses who cur- THROUGH DISTANCE LEARNING CHILD CARE rently may not have the resources to SEC. 101. GRANTS FOR THE DEVELOPMENT OF A SEC. 201. SMALL BUSINESS CHILD CARE GRANT provide child care for their employees. CHILD CARE TRAINING INFRA- PROGRAM. (a) ESTABLISHMENT.—The Secretary of The ‘‘Caring for Children Act’’ recog- STRUCTURE. (a) AUTHORITY TO AWARD GRANTS.—The Health and Human Services (referred to in nizes that small businesses play a crit- Secretary of Health and Human Services this section as the ‘‘Secretary’’) shall estab- ical role in providing child care options shall award grants to eligible entities to de- lish a program to award grants to States, on to millions of working parents. Unfor- velop distance learning child care training a competitive basis, to assist States in pro- tunately, small businesses generally do technology infrastructures and to develop viding funds to encourage the establishment not have the resources required to model technology-based training courses for and operation of employer operated child start up and support a child care cen- child care providers and child care workers, care programs. ter. This legislation includes a short- to be provided through distance learning pro- (b) APPLICATION.—To be eligible to receive a grant under this section, a State shall pre- term, flexible grant program to encour- grams made available through the infra- structure. The Secretary shall, to the max- pare and submit to the Secretary an applica- age small businesses to work together imum extent possible, ensure that such tion at such time, in such manner, and con- or with established local child care or- grants are awarded in those regions of the taining such information as the Secretary ganizations to provide child care serv- United States with the fewest training op- may require, including an assurance that the ices for employees. This program is portunities for child care providers. funds required under subsection (e) will be more of a demonstration project that (b) ELIGIBILITY REQUIREMENTS.—To be eli- provided. will sunset at the end of five years. In gible to receive a grant under subsection (a), (c) AMOUNT OF GRANT.—The Secretary an entity shall— the meantime, small businesses will be shall determine the amount of a grant to a (1) develop the technological and logistical State under this section based on the popu- eligible for grants up to $250,000 for aspects of the infrastructure described in lation of the State as compared to the popu- start-up costs, training, scholarships, this section and have the capability of im- lation of all States receiving grants under or other related activities. Businesses, plementing and maintaining the infrastruc- this section. however, will be required to match ture; (d) USE OF FUNDS.— Federal funds to encourage self-sus- (2) to the maximum extent possible, de- (1) IN GENERAL.—A State shall use amounts taining facilities well into the future. velop partnerships with secondary schools, provided under a grant awarded under this Business must continue to meet State institutions of higher education, State and section to provide assistance to small busi- local government agencies, and private child nesses located in the State to enable the quality and health standards. In es- care organizations for the purpose of sharing small businesses to establish and operate sence, this grant program takes the equipment, technical assistance, and other child care programs. Such assistance may in- necessary steps to ensuring small busi- technological resources, including— clude— nesses and other local organizations (A) developing sites from which individuals (A) technical assistance in the establish- are able to work together to provide may access the training; ment of a child care program; child care for employees. (B) converting standard child care training (B) assistance for the startup costs related The ‘‘Caring for Children Act’’ also courses to programs for distance learning; to a child care program; addresses another key component of and (C) assistance for the training of child care quality child care: child care training. (C) promoting ongoing networking among providers; program participants; and (D) scholarships for low-income wage earn- My bill creates a new grant program to (3) develop a mechanism for participants ers; allow organizations to develop and op- to— (E) the provision of services to care for erate distance learning child care (A) evaluate the effectiveness of the infra- sick children or to provide care to school training infrastructures and to develop structure, including the availability and af- aged children;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S744 CONGRESSIONAL RECORD — SENATE February 1, 2005 (F) the entering into of contracts with (B) APPEALS PROCESS.—The Secretary shall pacted unless this regulation is re- local resource and referral or local health de- by regulation provide for an appeals process versed. partments; with respect to repayments under this para- This legislation would repeal a Cen- (G) assistance for care for children with graph. ter for Medicare and Medicaid Services’ disabilities; or (i) REPORTING REQUIREMENTS.— (CMS) regulation that would prohibit (H) assistance for any other activity deter- (1) 2-YEAR STUDY.— mined appropriate by the State. (A) IN GENERAL.—Not later than 2 years critical access hospitals from being re- (2) APPLICATION.—To be eligible to receive after the date on which the Secretary first imbursed at-cost for laboratory serv- assistance from a State under this section, a awards grants under this section, the Sec- ices, unless patients are ‘‘physically small business shall prepare and submit to retary shall conduct a study to determine— present in a critical access hospital’’ the State an application at such time, in (i) the capacity of entities to meet the when laboratory specimens are col- such manner, and containing such informa- child care needs of communities within lected. Many CAHs provide laboratory tion as the State may require. States; services in rural health clinics (RHCs) (3) PREFERENCE.— (ii) the kinds of partnerships that are being and nursing homes in smaller, neigh- (A) IN GENERAL.—In providing assistance formed with respect to child care at the local under this section, a State shall give priority level to carry out programs funded under boring communities, as well as in to applicants that desire to form a consor- this section; and home-health settings; however, the tium to provide child care in a geographic (iii) who is using the programs funded elimination of cost-based reimburse- area within the State where such care is not under this section and the income levels of ment may make it prohibitive for them generally available or accessible. such individuals. to continue offering off-site laboratory (B) CONSORTIUM.—For purposes of subpara- (B) REPORT.—Not later than 28 months testing. In short, under the new regula- graph (A), a consortium shall be made up of after the date on which the Secretary first tion, lab services would not be reim- 2 or more entities that may include busi- awards grants under this section, the Sec- nesses, nonprofit agencies or organizations, retary shall prepare and submit to the appro- bursed by CMS unless the patient is at local governments, or other appropriate enti- priate committees of Congress a report on the facility where testing will occur. ties. the results of the study conducted in accord- This change jeopardizes rural Ameri- (4) LIMITATION.—With respect to grant ance with subparagraph (A). cans’ access to care by imposing an ad- funds received under this section, a State (2) 4-YEAR STUDY.— ditional burden on the frail elderly by may not provide in excess of $250,000 in as- (A) IN GENERAL.—Not later than 4 years requiring them to visit the hospital to sistance from such funds to any single appli- after the date on which the Secretary first get simple lab tests done. The addi- cant. awards grants under this section, the Sec- tional time and expense incurred by (e) MATCHING REQUIREMENT.—To be eligible retary shall conduct a study to determine the patient is unnecessary if the CAR to receive a grant under this section a State the number of child care facilities funded shall provide assurances to the Secretary through entities that received assistance is willing and able to conduct tests at that, with respect to the costs to be incurred through a grant awarded under this section the point of patient care and transport by an entity receiving assistance in carrying that remain in operation and the extent to it back to the hospital for analysis. out activities under this section, the entity which such facilities are meeting the child Congress created the CAR program in will make available (directly or through do- care needs of the individuals served by such 1997 to ensure that those in isolated, nations from public or private entities) non- facilities. rural communities have access to Federal contributions to such costs in an (B) REPORT.—Not later than 52 months amount equal to— health care. To protect the viability of after the date on which the Secretary first these hospitals, often a community’s (1) for the first fiscal year in which the en- awards grants under this section, the Sec- tity receives such assistance, not less than 50 retary shall prepare and submit to the appro- only source of vital health care serv- percent of such costs ($1 for each $1 of assist- priate committees of Congress a report on ices, Congress established cost-based ance provided to the entity under the grant); the results of the study conducted in accord- reimbursement for Medicare inpatient (2) for the second fiscal year in which the ance with subparagraph (A). and outpatient services—regardless of entity receives such assistance, not less than (j) DEFINITION.—In this section, the term where the services are provided. The 662⁄3 percent of such costs ($2 for each $1 of ‘‘small business’’ means an employer who new regulation would fundamentally assistance provided to the entity under the employed an average of at least 2 but not grant); and alter this well-established practice. more than 50 employees on business days We have tried to work with CMS to (3) for the third fiscal year in which the en- during the preceding calendar year. tity receives such assistance, not less than 75 change the rule. In November of 2003, I (k) AUTHORIZATION OF APPROPRIATIONS.— percent of such costs ($3 for each $1 of assist- (1) IN GENERAL.—There is authorized to be was joined by 28 Senators in a bipar- ance provided to the entity under the grant). appropriated to carry out this section, tisan letter to the Administrator of (f) REQUIREMENTS OF PROVIDERS.—To be el- $50,000,000 for the period of fiscal years 2006 CMS asking for his assistance in con- igible to receive assistance under a grant awarded under this section a child care pro- through 2010. structing a rule that does not penalize vider shall comply with all applicable State (2) EVALUATIONS AND ADMINISTRATION.— CAHs for offering off-site laboratory and local licensing and regulatory require- With respect to the total amount appro- services. Unfortunately, CMS re- ments and all applicable health and safety priated for such period in accordance with sponded that the rule would stay in- standards in effect in the State. this subsection, not more than $2,500,000 of tact. that amount may be used for expenditures (g) STATE-LEVEL ACTIVITIES.—A State may I am pleased to be joined in this ef- not retain more than 3 percent of funds for related to conducting evaluations required fort by Senator SUSAN COLLINS. Sen- State administration and other State-level under, and the administration of, this sec- activities. tion. ator COLLINS has been a strong advo- (h) ADMINISTRATION.— (l) TERMINATION OF PROGRAM.—The pro- cate for rural health care, and I look (1) STATE RESPONSIBILITY.—A State shall gram established under subsection (a) shall forward to working together on this have responsibility for administering a grant terminate on September 30, 2011. legislation. awarded for the State under this section and The Nebraska critical access hos- for monitoring entities that receive assist- By Mr. NELSON of Nebraska (for pitals affected by the regulation are: ance under such grant. himself, Ms. COLLINS, Ms. CANT- Harlan County Health System in (2) AUDITS.—A State shall require each en- WELL, and Mrs. MURRAY): Alma tity receiving assistance under the grant S. 236. A bill to amend title XVIII of Fillmore County Hospital in Geneva awarded under this section to conduct an an- the Social Security Act to clarify the nual audit with respect to the activities of Pawnee County Memorial Hospital in the entity. Such audits shall be submitted to treatment of payment under the medi- Pawnee City the State. care program for clinical laboratory Niobrara Valley Hospital Corporation (3) MISUSE OF FUNDS.— tests furnished by critical access hos- in Lynch (A) REPAYMENT.—If the State determines, pitals; to the Committee on Finance. Thayer County Health Services in through an audit or otherwise, that an enti- Mr. NELSON of Nebraska. Mr. Presi- Hebron ty receiving assistance under a grant award- dent. Today, I introduce legislation Kimball County Hospital in Kimball ed under this section has misused the assist- that will overturn a new regulation Kearney County Health Services/Hos- ance, the State shall notify the Secretary of that is putting critical access hospitals the misuse. The Secretary, upon such a noti- pital in Minden fication, may seek from such an entity the (CAH) at risk by arbitrarily lowering Saunders County Health Services in repayment of an amount equal to the the Medicare reimbursement for lab- Wahoo amount of any such misused assistance plus oratory services. Sixty rural hospitals Henderson Health Care Services in interest. in Nebraska will be negatively im- Henderson

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S745 Community Memorial Hospital in Memorial Health Center in Sidney SEC. 2. PAY TO PLAY REFORM. Syracuse Gordon Memorial Hospital District in Section 112 of title 23, United States Code, Garden County Hospital & Nursing Gordon is amended by adding at the end the fol- Home in Oshkosh Memorial Community Hospital in lowing: Franklin County Memorial Hospital Blair ‘‘(h) CONSTRUCTION.—Nothing in this sec- in Franklin Box Butte General Hospital in Alli- tion prohibits a State from enacting a law or ance issuing an order that limits the amount of Genoa Community Hospital in Genoa money an individual who is doing business Gothenburg Memorial Hospital in with a State agency for a Federal-aid high- Gothenburg By Mr. LAUTENBERG: S. 237. A bill to amend title 23, way project may contribute to a political Annie Jeffrey Memorial County United States Code, to ensure that cer- campaign.’’. Health Center in Osceola tain states remain eligible for Federal Brodstone Memorial Nuckolls County By Ms. SNOWE (for herself, Mr. highway funds; to the Committee on Hospital in Superior WYDEN, Mr. MCCAIN, Mrs. FEIN- Environment and Public Works. Webster County Community Hospital STEIN, and Mr. FEINGOLD): Mr. LAUTENBERG. Mr. President, I in Red Cloud rise to introduce a bill to correct a se- S. 239. A bill to reduce the costs of Tilden Community Hospital in Tilden rious problem in Federal law which prescription drugs for medicare bene- Morrill County Community Hospital prevents States like New Jersey from ficiaries, and for other purposes; to the in Bridgeport receiving vital Federal highway funds Committee on Finance. Jefferson Community Health Center under certain conditions. Ms. SNOWE. Mr. President, Senator in Fairbury On September 22, 2004, former New WYDEN and I broke new ground to- Memorial Hospital in Aurora Jersey Governor James McGreevey gether when we introduced the first bi- Oakland Memorial Hospital in Oak- issued an Executive Order that prohib- partisan Medicare Prescription drug land ited the State from entering into cer- bill known as SPICE back in 1999. And St. Francis Memorial Hospital in tain contracts. Governor McGreevey after Congress passed the historic West Point took this step to ensure fairness and Medicare Modernization Act of 2003, Alegent Health Memorial Hospital in transparency in the contracting proc- Senator WYDEN and I authored legisla- Schuyler ess, and under current Federal laws, tion aimed at ensuring long term value Nemaha County Hospital in Auburn our State is being punished for it. of the drug benefit to seniors. Today Brown County Hospital in Ainsworth Bush administration officials inter- we are joined again by Senator FEIN- Antelope Memorial Hospital in preted Federal law as prohibiting this STEIN, who has been committed with us Neligh type of action by New Jersey and con- to forging a bipartisan effort to do Cozad Community Hospital in Cozad sequently withheld authorization of what we must today—to move beyond Litzenberg Memorial County Hos- Federal funding for highway projects in offering a benefit and ensure that we pital in Central City our State, putting some $250 million in meet our obligation to address afford- Avera St. Anthony’s Hospital in highway projects at risk. ability. O’Neill I worked with Department of Trans- Warren Memorial Hospital in Friend When we consider both a recent ten portation Secretary Norman Mineta in Creighton Area Health Services in year cost estimate of over $534 billion an attempt to resolve this problem Creighton for the prescription drug benefit, and quickly. Ultimately, Acting Governor Butler County Health Care Center in drug price increases which have rapidly Richard Codey reluctantly suspended David City outpaced inflation and earnings, we the part of the Executive Order causing Rock County Hospital in Bassett could see the benefit to seniors depre- the problem. But since that’s not real- Boone County Health Center in ciated—and the cost to the Federal ly a permanent solution, I am intro- Albion Government increased. So today we in- ducing this legislation today. Callaway District Hospital in troduce The Medicare Enhancements New Jersey’s transportation infra- Callaway for Needed Drugs Act of 2005, MEND, structure is vital to millions of trav- York General Hospital in York today to manage costs, and assure sen- elers and the entire East Coast econ- Howard County Community Hospital iors will receive better value for their omy. It is estimated that some 70 bil- in St. Paul dollar. lion vehicle miles are traveled in New Memorial Hospital CAH in Seward This bill provides both better con- Jersey each year, but only 6 million Dundy County Hospital in sumer information to help bene- drivers are licensed in our State. In ad- Benkelman ficiaries and the negotiation power to dition, projected increases in port traf- Chadron Community Hospital Health assure that the power of millions of fic will put 80 percent more trucks on Services in Chadron seniors will result in competitive pric- the roads in the next 15 years, which St. Mary’s Hospital in Nebraska City ing. That is why two of our col- will exacerbate congestion and con- West Holt Memorial Hospital in At- leagues—Senators MCCAIN and FEIN- tinue to tax our infrastructure. kinson GOLD—have now joined us in this effort. In short, I believe that New Jersey’s Cherry County Hospital in Valentine Ours is a simple approach informed good intentions should not cost our Providence Medical Center in Wayne by a ‘‘healthy dosage’’ of common State the Federal highway funding we Plainview Public Hospital in Plain- sense. It simply makes no sense to cut need so desperately. off the ability of the HHS Secretary— view I thank my colleague and friend Sen- Osmond General Hospital in Osmond the individual who is responsible for ator CORZINE for co-sponsoring this leg- the success of this benefit—from nego- Tri Valley Health System in Cam- islation, and I look forward to working tiating on behalf of beneficiaries. bridge with my colleagues in getting it en- Pender Community Hospital in That’s why our legislation repeals the acted. Pender I ask unanimous consent that the ‘‘noninterference provision’’ of the pre- Johnson County Hospital in Tecum- text of the bill be printed in the scription drug bill and authorizes the seh Secretary of Health and Human Serv- RECORD. Chase County Community Hospital There being no objection, the bill was ices to participate in negotiations on in Imperial ordered to be printed in the RECORD, as drug prices. Last month when Sec- Community Medical Center in Falls follows: retary Thompson announced his depar- City S. 237 ture from HHS, he described several Valley County Hospital in Ord issues of critical concern—one of these Be it enacted by the Senate and House of Rep- Crete Area Medical Center in Crete resentatives of the United States of America in was that he had been barred from nego- Ogallala Community Hospital in Congress assembled, tiating on behalf of beneficiaries. He Ogallala SECTION 1. SHORT TITLE. noted, ‘‘I would like to have had the Perkins County Health Services in This Act may be cited as the ‘‘Pay to Play opportunity to negotiate’’. And for Grant Reform Protection Act’’. good reason! The Congressional Budget

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S746 CONGRESSIONAL RECORD — SENATE February 1, 2005 Office has confirmed that this negotia- Our bill requires GAO to track not only 4.6 percent average annual rate of in- tion authority can help us realize sav- the price of drugs under the Medicare crease. They also found that the proc- ings, particularly for drugs that lack program, but calls for that price to be ess for the brand drugs increased 26.4 significant competition. compared to the price negotiated by percent for that same time period When Senator GREGG recently the VA, DOD and other privately run whereas prices for generic drugs in- queried Secretary Leavitt about keep- systems. We will have a measure of creased 8.3 percent. We need to make ing the cost of the Part D program how well the seniors are being served. sure that Medicare has every weapon in within the original $400 billion budget, This bill will also help seniors deter- its arsenal to assure seniors and Medi- and the Secretary asserted that ‘‘It’s mine which Medicare plan offers the care get the best deal possible on pre- my practice as a manager to act within most savings by requiring that begin- scription drug prices. my budget’’. That will require competi- ning in 2007 the Centers for Medicare One of the most important tools for tion, so I ask why wouldn’t we employ and Medicaid Services will determine Medicare to use to assure better pre- negotiation to do what it does best— the savings received from each plan by scription drug prices for seniors is bar- drive costs down? I asked Secretary the average Medicare beneficiary, gaining power. That tool is missing Leavitt about negotiation at his con- using a market basket of commonly- from the legislation Congress passed in firmation hearing in the Finance Com- used drugs. This will allow seniors to 2003. The legislation that Senator mittee and he told me, ‘‘I know little make the proverbial ‘‘apples to apples’’ SNOWE and I are introducing today, the about negotiation authority, but there comparison. This information will be MEND Act, would provide the Sec- are times when the national govern- shared with all beneficiaries during the retary of Health and Human Services ment should play a role’’. Well, that annual enrollment period each fall, and that tool. As responsible stewards of time is now. Senator WYDEN and I have will be a great help as a starting point the taxpayers’ money, Congress must received our first report on drug price for seniors to compare plans. provide Medicare all the tools, includ- trends from the GAO, and the news Our legislation will make annual the ing bargaining power, in its cost con- isn’t good. Since 2000, the increase in report Senator WYDEN and I first re- tainment arsenal. prescription drug prices has increase at quested following passage of the pre- This concept was endorsed by the two to three times the rate of infla- scription drug bill in 2003. We asked the outgoing Secretary of Health and tion. And worse, we found the rate GAO to review changes in drug prices Human Services, Tommy Thompson. spiked in 2002, just as we were working from 2000 through 2003, focusing on the The Congressional Budget Office in a to create a prescription drug benefit. drugs most likely to be used by seniors, letter to me last March stated that It’s no wonder that the Congressional and the results are in: Prescription striking the so-called ‘‘non inter- Budget Office projects an annual in- drug prices have increased at two to ference’’ provision in the Medicare Pre- crease of about 8.5 percent in costs, three times the rate of inflation. scription Drug Improvement and Mod- most of which can be attributed to the Finally, many advocates and seniors ernization Act could provide opportuni- rise in prices. But we can address this alike have raised questions about the ties for savings. problem, and avoid depreciating the restriction of Medigap policies under In addition to providing the Sec- value of this long sought benefit. the new Part D benefit. The prohibi- retary with bargaining power, the To do so you must do more than sim- tion of the sale of new Medigap policies MEND Act will require the Secretary ply end the prohibition on the Sec- which include prescription drug cov- to negotiate on behalf of what are retary negotiating, you must do more erage has prompted the need for a re- known as ‘‘fall back’’ plans, those than simply granting permissive au- examination of the role of Medigap plans that are provided when there is thority, you must actually ensure that plans. So we have directed the Sec- no choice of a drug plan and the com- when needed, the Secretary will nego- retary to work with the National Asso- pany administering the benefit is not tiate. ciation of Insurance Commissioners to at risk. In addition, if any plan asks So our legislation will not only em- conduct a review of the changes to the the Secretary for assistance in negotia- power the HHS Secretary to negotiate Medigap policies and to evaluate the tions for any covered drug, the Sec- but, under two circumstances, requires impact on Medicare beneficiaries. It is retary must assist the plan. Lower it. For those beneficiaries who do not an important step in looking at the fu- drug prices should mean lower pre- have access to two prescription drug ture of Medigap plans. With this report miums; lower out of pocket costs and a plans, the Secretary steps in with a in hand, we will have the information better benefit. fallback plan, and this plan must be necessary to make wise adjustments. America’s seniors are savvy and they competitive—so the Secretary must as- Some say we don’t need to act now. will shop around for a plan that is sure that he negotiates on behalf of But we have seen drug price increases going to provide them the best deal on those beneficiaries. In addition, the which are driving costs upwards—con- prescriptions. That is why the MEND Secretary must be responsive to the tributing to the estimated 8.5 percent Act also requires Medicare to provide a needs of the plan providers. When a annual increases in costs projected by comparison of how much a plan is sav- manufacturer simply is not inclined to CBO. We simply cannot wait until 2006 ing seniors on the cost of the most negotiate—as may occur when com- to address the issue of drug prices. This commonly used drugs. Giving seniors petition for a drug is lacking—then the bill provides beneficiaries and our gov- more control over their health care and Secretary must respond when plans re- ernment with the information and health care dollars will also help keep quest his assistance in negotiations. tools necessary to achieve access to costs down. Some will say this will compel exces- low-cost prescription drugs. I urge my Mrs. FEINSTEIN. Mr. President, I sive involvement by the Secretary, but colleagues to join me in support of this rise today to join my colleagues Sen- the truth is quite to the contrary. bill so that we can pass it quickly. ator SNOWE, Senator WYDEN and Sen- Plans will compete to gain advantage, Mr. WYDEN. Mr. President, Senator ator MCCAIN in introducing the bipar- and it is when they are stymied and SNOWE and I are once again teaming up tisan Medicare Enhancement for Need- cannot achieve reasonable discounts to work on a bipartisan commonsense ed Drugs, MEND, Act of 2005. This leg- that they will call upon the Secretary. proposal to help America’s seniors re- islation is an important step toward CBO foresaw one such situation—when ceive affordable prescription drugs. Our controlling the spiraling cost of pre- a drug lacks significant competition— bill, ‘‘The Medicare Enhancement for scription drugs for America’s seniors. and those are among our most expen- Needed Drugs Act’’ or ‘‘MEND Act’’ fo- The MEND Act addresses what I saw sive drugs! cuses on cost containment. as a major weakness of the Medicare The buying power of millions of sen- At our request, the U.S. Government Modernization Act of 2003 when I voted iors should produce substantial sav- Accountability Office (GAO) recently for the bill. The Medicare Moderniza- ings, but at the same time, competitive reviewed drug cost trends. For 77 pre- tion Act offers an opportunity for the plans won’t help if seniors cannot iden- scription drugs frequently used by sen- Federal Government via the Secretary tify which plan is right for them. iors on Medicare the usual and cus- of Health and Human Services to har- Senator WYDEN and I believe we must tomary price increased 21.8 percent ness its bulk purchasing power to de- arm beneficiaries with information. from January 2000 through June 2004, a liver lower drug prices for our seniors.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S747 However, the Medicare bill prohibits To ensure that the Federal Govern- prices charged by manufacturers, the HHS Secretary from doing just ment achieves the lowest available wholesalers, and retailers were higher that. price for enrollees in a ‘‘fallback’’ plan, in the U.S., most recently by about 70 I have said several times that I would the MEND Act requires that the Sec- percent. work to see that this prohibition on retary negotiate drug prices in such For example, an American consumer the HHS Secretary from negotiating plans. pays $62.99 for a 30-day supply of the with drug manufacturers be stricken The MEND Act also requires the Sec- popular cholesterol-lowering drug and I was pleased that Secretary retary to participate in negotiations Lipitor. The same consumer in Canada Tommy Thompson, upon announcing upon the request of an approved pre- is paying $35.42. For Prevacid, used to his departure as HHS Secretary, ac- scription drug plan or Medicare Advan- treat acid reflux, an American con- knowledged publicly that he sought the tage prescription drug plan. sumer pays $120.99 for a 30-day supply negotiating power that this legislation If the untested theory that private whereas a Canadian consumer pays provides. Secretary Thompson said, ‘‘I plans can achieve larger drug price dis- $44.27. would have liked to have had the op- counts than the Secretary could nego- If we do not address the exorbitant portunity to negotiate.’’ tiate proves to be false because the costs of prescription drugs in this First and foremost the bill strikes smaller insurers in the private market country today, we threaten the viabil- the prohibition language in the Medi- cannot achieve the savings larger, ity of programs like Medicare for fu- care bill, also called the noninter- more established companies can, a ture generations. I am pleased to join ference provision. company can petition the Secretary to Senators SNOWE, WYDEN and MCCAIN in I strongly believe that the HHS Sec- negotiate with drug manufacturers on the fight for lower prescription drug retary should be given the authority their behalf. prices for our seniors. similar to that of other Federal enti- So that seniors can make an ‘‘apples I urge my colleagues to join me in ties that purchase prescription drugs in to apples’’ comparison when deter- supporting this important legislation. bulk to negotiate prices with manufac- mining which drug plan offers them the By Mr. KERRY (for himself, Mr. turers of prescription drugs to ensure most competitive drug prices, the bill LEAHY, Mrs. MURRAY, Mr. that beneficiaries pay the lowest pos- requires that the Secretary of HHS de- ROCKEFELLER, Mr. DURBIN, and sible price for their prescription drug termine the average aggregate bene- Ms. STABENOW): plans. ficiary costs and savings basic prescrip- The CBO has told us that the effect S. 240. A bill to mend the Internal tion drug plans are able to achieve to of striking the ‘‘noninterference’’ pro- Revenue Code of 1986 to allow small better inform seniors about which plan vision would have a ‘‘negligible effect’’ business employers a credit against in- might suit them best. come tax with respect to employees on federal spending. CBO’s conclusion I have heard concerns raised by many is based on their prediction that pri- who participate in the military reserve of my constituents about the impact vate plans will be able to obtain sav- components and are called to active the Medicare bill will have on their ings that will be greater than what the duty and with respect to replacement Medigap plans. This bill directs the Secretary will be able to achieve and employees and to allow a comparable HHS Secretary to work with the Na- that simply striking this provision credit for activated military reservists tional Association of Insurance Com- does not ensure that the Secretary will who are self-employed, and for other missioners to conduct a review of the use the negotiation authority. purposes; to the Committee on Fi- Meanwhile, our seniors are being changes to the Medigap policies in the nance. given no guarantee that private plan new drug benefit for the purpose of Mr. KERRY. Mr. President, the con- competition will mean lower drug evaluating its impact on Medicare tinuing activation of military reserv- prices for them. So while CBO makes beneficiaries. ists to serve in Iraq and the war on ter- this conclusion that private market Lastly, the bill requires GAO to con- ror has imposed a tremendous burden forces will bring about savings, the fed- duct a review of the retail cost of pre- on many of our country’s small busi- eral government is forced to sit on the scription drugs in the U.S. during 2000 nesses, their employees and their em- sidelines, unable to leverage its pur- through 2003 with an emphasis on the ployees’ families. Too many small busi- chasing power to negotiate lower drug prescription drugs most utilized for in- nesses, when their employees are asked prices. The Federal Government cannot dividuals age 65 or older. Subsequent to leave their jobs and serve the Na- even participate in negotiations for reviews will be required annually tion, are unable to continue operating prescription drug plans for which it as- through 2007. successfully and face severe financial sumes the risk. And, it requires GAO to conduct an difficulties, even bankruptcy. At the That is simply wrong and the MEND annual study that compares the aver- same time, more than 40 percent of Act corrects this flaw in the Medicare age retail cost in the U.S. for each of military reservists and National Guard bill. the 20 most utilized prescription drugs members suffer a pay cut when they’re Second, if a future HHS Secretary for individuals 65 or older with the av- called to defend our Nation. Most large does not agree with Secretary Thomp- erage price at which private health businesses have the resources to pro- son’s view that he be given the oppor- plans acquire each such drug, the aver- vide supplemental income to resist em- tunity to negotiate with drug manufac- age price at which the Department of ployees called up for active duty and to turers, there must be circumstances Defense and Veterans Administration replace them with a temporary em- under which the Secretary is required each acquire such drug, and the aver- ployee. However, too many small busi- by law to negotiate. age negotiated price for each such drug nesses are unable to provide this assist- The MEND Act mandates two sce- that eligible beneficiaries enrolled in a ance (or temporarily replace the em- narios under which the Secretary must prescription drug plan under Part D of ployee called up to active duty. I be- negotiate with manufacturers. First, Medicare pay. lieve the Federal Government must the Secretary must negotiate with As someone who voted for the Medi- take action to help small businesses manufacturers of covered Part D drugs care bill and has seen the cost estimate weather the loss of an employee to ac- for the fallback prescription drug plan. of that bill go from $400 billion to $534 tive duty and protect small business The ‘‘fallback’’ plan is a guaranteed billion and someone who is very con- employees and their families from suf- drug benefit to beneficiaries living in cerned about the growth of entitlement fering unnecessary financial hardship areas where only one private plan, or spending, I believe that this bill will to serve our Nation. That is why I am none, shows up. In areas where a ‘‘fall- shed light on one of the big drivers of again introducing legislation that will back’’ prescription drug plan is trig- health care costs, the cost of prescrip- provide an immediate tax credit assist gered, the federal government must tion drugs. both military reservists who are called offer the standard drug benefit and as- CBO projects that Americans over 65 to active duty and the small businesses sume performance risk. However, the will spend $1.8 trillion on prescription who must endure their absence. Federal Government does not have a drugs over the next ten years. Recent The Small Business Military Reserv- say in the prices manufacturers charge studies of U.S. and Canadian drug-price ist Tax Credit Act that I am intro- them in the ‘‘fallback.’’ comparisons show that, on average, ducing today will provide immediate

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Of the approxi- happy to say that Mr. Sotelo has re- Nation. Specifically, the bill will pro- mately 150,000 troops serving in Iraq, 40 married and was recently promoted to vide a tax credit of up to $21,000 to any percent are reserves. This number is manager at his dealership. Had the bill very small business, defined as any expected to increase to approximately I introduce today been available for business with up to 50 employees, 50 percent in the near future as current Staff Sergeant Sotelo, his small busi- whose employee has been called up for troop deployments mobilize. ness employer could have kept his in- active duty. Up to $15,000 for businesses Earlier this month, published reports come steady and received a tax credit that pay any difference in salary for showed that Lt. Gen. James R. Helmly, to cover half of the costs of doing so. the activated reservist and up to an ad- the Commander of the Reserve, has Beyond the hardship of leaving their ditional $6,000 for the business to offset told Army Chief of Staff General Peter families, their homes and their regular the cost of hiring a temporary replace- J. Schoomaker that the burdens placed employment, 41 percent of military re- ment. For small manufacturers with up on military reservists since the Sep- servists and National Guard members, to 100 employees, the bill will provide a tember 11, 2001 attacks, combined with like Staff Sergeant Sotelo, face a pay tax credit of up to $30,000, up to $20,000 dysfunctional Pentagon policies, have cut when they’re called for active duty for small manufacturers that pay all or damaged morale and retention and in our armed forces. Many of these re- part of the difference in salary for the threaten to turn the Army Reserve servists have families who depend upon reservist called to duty and up to into a broken force. Lt. Gen. Helmly that paycheck to survive and can least $10,000 for small manufacturers to off- criticized Pentagon decisions to extend afford a substantial reduction in pay. set the cost of hiring a temporary re- reservists tours in war zones, giving Unlike many big businesses that can placement. This tax credit is critically troops as little as 3 days’ notice before afford to provide supplemental income necessary if we are to immediately mobilizations, and calling reservists to to make up for the salary disparity for help struggling entrepreneurs keep active duty after they had served and military reservists called to active their small businesses running after returned to civilian life. Such policies duty, most small businesses cannot af- the loss of an employee to temporary have strained the Army Reserve to the ford to provide this benefit. This makes military service. Too many American point that the 200,000 force could be un- it more difficult for small businesses to small manufacturers are already facing able to carry out future missions. attract and keep workers. I think it is a difficult economy and strong inter- Both the Army Reserve and National imperative that we help families of re- national competition. This legislation Guard have suffered shortfalls in re- servists maintain their standard of liv- provides higher thresholds for small cruitment because of the unpredict- ing while their loved one serves our Na- manufacturers because they need ability, extended call-ups and stop loss tion. We must ensure that our great greater help and they employ more policies associated with the Iraq war. tradition of citizen soldiers does not technical workers who typically com- National Guard officials said last fade or stop because of the effect serv- mand higher salaries and are more dif- month that the service must be over- ice has on work and family. ficult to replace. It will also help cush- hauled. Back in 1999, I wrote the Military Re- ion the financial cost of being a citizen Everyone knows that small busi- servist Small Business Relief Act, solder for our reservists. nesses continue to be a most effective which was enacted into law during the To fight our wars and to meet our at creating new jobs and spurring eco- 106th Congress and authorized the military responsibilities, the United nomic growth nationwide. Small busi- Small Business Administration (SBA) States supplements its regular, stand- nesses employ over 50 percent of the to defer existing loan repayments and ing military with reservists, citizen nation’s workforce. Nationwide, small to reduce the interest rates on direct soldiers who serve nobly. Since 1973, businesses are currently creating 75 loans that may be outstanding, includ- the United States has built an all-vol- percent of new jobs. Furthermore, ing disaster loans, for small businesses unteer military of which reservists are many of these small businesses provide that have had a military reservist an essential part. Our reservists are quality goods and services that are a called up for active duty. It also estab- much more than weekend warriors. vital link in the supply chain for our lished a low-interest economic injury When they are called to active duty, national defense. Many of these small loan program administered by the SBA they are an essential ingredient of any companies need immediate help to through its disaster loan program. long-term or significant deployment of keep their business going while their These loans have been available to pro- American forces. Everyone knows the employees are sacrificing for our coun- vide interim operating capital to any contributions our reservists have made try in Iraq and elsewhere. small business when the departure of a in the Army, Navy, Air Force, Marines Many of our reservists left their com- military reservist for active duty and Coast Guard. They have been serv- panies in good shape. They were profit- causes economic injury. However, in ing our country with distinction and able, providing goods or services, cre- today’s economy, many small busi- pride for many years and should not be ating jobs, adding to the tax base. Our nesses are unable to take on additional penalized financially for their honor- Nation should do everything possible debt to continue their operations. able service. The use of reservists is a to ensure that upon their return, re- These small businesses need immediate significant way to reduce the costs of servists and their businesses do not tax relief to assist them in hiring a re- maintaining a standing army, and suffer unnecessary hardships, which placement and to pay their reservist those costs, in lieu of having a critical range from impaired operations and fi- worker who is away serving our coun- reservist component, are far higher nancial ruin to deserted clients, lay- try. than the cost of providing the small, offs, and even closure. Pedro Sotelo, a This bill will help every small busi- targeted tax credit offered by this leg- 33-year-old veteran from Kansas City, ness whose owner, manager or em- islation. MO, was a reservist for 9 years. From ployee is called to active duty. Most Reservists have become a vital com- 1997 to 2004 he was called up to active immediately, this bill will assist those ponent of U.S. forces in Iraq and the duty 10 times. Each time he was acti- small businesses whose employees are war on terror. On September 14, 2001, vated, he saw his income drop from in service in Iraq and elsewhere but the President Bush issued Executive Order $60,000 a year as a small business sheet act also applies to future contingency 13223 authorizing the activation of up metal worker to about $30,000 the Army operations, military conflicts, or na- to 1 million military reservists for up paid him as a staff sergeant. While he tional emergencies. to 2 years of active duty. Since October was away serving his country, the bills By helping our reservists and the 2002, there has been a presidentially ap- would just keep pilling up. Eventually small businesses that employ them, we proved ceiling of 300,000 on the number his credit rating plummeted. The con- can ensure that our great tradition of

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S749 citizen soldiers does not fade or stop in administering the USF, does not re- fraud, and abuse. As such, government because of the effect service has on ceive any appropriated funds from Con- waste cannot be used as a valid reason work and family. gress. Rather, the USF is funded by a for opposing this bill. I ask all my colleagues to support regular disbursement, on a more-or- Last fall we undertook a bipartisan this important legislation to help both less monthly basis, of monies derived effort among Members on the commit- military reservists and the small busi- from a surcharge placed on the revenue tees of jurisdiction in both Houses of nesses they are forced to leave when generated from interstate telephone Congress to enact a temporary exemp- they are called up for active duty. calls. The existence of this predictable tion for the USF from unnecessary, revenue stream negates any of the burdensome regulations. In under- By Ms. SNOWE (for herself, Mr. risks and concerns that the Anti-Defi- taking that effort we worked closely ROCKEFELLER, Mr. STEVENS, ciency Act was designed to prevent. with the Federal Communications and Mr. INOUYE): After government accounting rules Commission, and enjoyed widespread S. 241. A bill to amend section 254 of were imposed on USAC last summer, support among the telecom industry, the Communications Act of 1934 to pro- the entire E-Rate program was frozen. educators, and State and local govern- vide that funds received as universal On the eve of the start of the school ments. I am grateful of the continuing service contributions and the universal year, this program—which has enabled bipartisan support of the Chairman and service support programs established 93 percent of schools and libraries in Ranking Member, as well as of Senator pursuant to that section are not sub- the country to hook up to the Inter- ROCKEFELLER, and it is my hope that ject to certain provisions of title 31, net—was unable to review and act upon we can proceed in similar fashion to United States Code, commonly known the funding recommendations of thou- make this exemption permanent. as the Antideficiency Act; to the Com- sands of applicants. Many recipients of mittee on Commerce, Science, and E-Rate funding actually shut off their By Mrs. HUTCHISON (for herself Transportation. Internet connections because they had and Mr. CORNYN): Ms. SNOWE. Mr. President, I rise no money available to maintain serv- S. 242. A bill to establish 4 memorials today along with Senator ROCKEFELLER ice. In order to alleviate this problem, to the Space Shuttle Columbia in the and the distinguished Chairman and Congress decided last fall to exempt State of Texas; to the Committee on Ranking Member of the Committee on the USF from the Anti-Deficiency Act Energy and Natural Resources. Commerce, Science, and Transpor- for one year until a permanent solution Mrs. HUTCHISON. Mr. President, tation, Senators STEVENS and INOUYE, to this problem was found. Senator today in honor of the memory and sac- to introduce legislation to safeguard ROCKEFELLER and I decided to pursue a rifice of seven astronauts whose lives the Universal Service Fund, or ‘‘USF,’’ one-year exemption in order to ensure were tragically cut short two years ago the institution that allows rural and speedy passage of the legislation before in the destruction of the Space Shuttle low-income Americans to obtain af- adjournment, so that schools and li- Columbia, I bring to the floor a bill to fordable telephone service, allows braries could receive their funding authorize the construction of several America’s schools and libraries to pro- again. Today’s legislation provides memorials in communities along the vide Internet access to all segments of that permanent solution: a permanent Space Shuttle Columbia Recovery Cor- society through the E-Rate program, exemption from the Anti-Deficiency ridor; specifically, Lufkin, Hemphill, and permits rural health care providers Act. Nacogdoches, and San Augustine, TX. to obtain telecommunications and Clear precedent exists for such an ex- Each of these communities will me- Internet services at reduced rates. The emption. Numerous other federal pro- morialize the disaster and the indomi- concept of Universal Service has been grams already are exempt from com- table spirit of adventure and courage, with us nearly as long as the telephone plying with the Anti-Deficiency Act, the spirit that defies complacency and itself, and this bill today marks one including the National Park Service accepts challenge, the spirit that each key step in ensuring that this vital pol- and the Conservation Trust. Moreover, of these astronauts and each of these icy remains intact in the 21st Century. an exemption is the rational solution communities showed. The legislation introduced today per- to ensure that this problem does not This search for adventure turned tains specifically to the Universal continue to recur. As I previously men- space travel from dreams to a reality. Service Administration Company, or tioned, an exemption is particularly It is this spirit of challenge which ‘‘USAC,’’ the private, nonprofit cor- appropriate in this instance because fueled the courage and ambition of poration that Congress created to ad- the USF has a funding mechanism dif- seven men and women into the sky on minister the USF. This bill is very ferent from most federal programs. The January 6, 2003. It is also this same similar to S. 2994, a Universal Service USF functioned very well for many spirit that drives these communities to bill that I introduced during the last years utilizing the Generally Accepted permanently commemorate the high session of Congress and that was passed Accounting Principles used by the en- price we sometimes pay for reaching right before adjournment as part of a tire American business world. Trying new horizons. larger telecommunications package, to engraft special government rules Hemphill, TX, where the nose cone of H.R. 5419. That bill temporarily ex- onto USF is akin to forcing a square the Shuttle was found, is also where empted USAC from complying with peg into a round hole. And the result the remains of the crew were recov- new, arbitrarily-imposed accounting would be another stoppage in E-Rate— ered. The VFW post in Hemphill fed rules that had severely disrupted the and likely the USF Rural High Cost thousands of volunteers for weeks E-Rate program and threatened to Fund as well—and also a spike in the without so much as a complaint or a cause huge spikes in consumers’ tele- USF surcharge on consumers’ tele- dime. The men and women of Hemphill phone bills. Many will recall that hun- phone bills. did not take their task lightly, but dreds of millions of dollars in E-Rate Finally, I want to ensure my col- rather with a solemn grace and dig- funding for schools and libraries stayed leagues that a permanent exemption nity. unissued for months because of the ac- from the Anti-Deficiency Act poses no The greatest amount of debris came counting rule change, and immediate risk of increased fraud or abuse in the down in the populated areas of action was necessary to resolve the E-Rate Program or in Universal Serv- Nacogdoches, TX. Backyards and problem. ice as a whole. Some well-publicized streets were littered with debris, per- According to USAC’s Federal regu- abuses of E-Rate did in fact occur, and manently altering the community. The lators, these new accounting rules I will fully support efforts to stamp out citizens of Nacogdoches pulled together needed to be imposed to ensure that such government waste. But the Fed- and focused on the recovery, working the USF was compliant with the fed- eral Communications Commission has day and night with NASA until the job eral Anti-Deficiency Act, a law which repeatedly stated that there is abso- was complete. A spirit of courage filled prevents government agencies from in- lutely no connection between the Anti- the community of Nacogdoches and curring financial obligations beyond Deficiency Act land the ability of the their efforts should never be forgotten. the amount that has been appropriated Inspector General to effectively mon- The population of Lufkin, TX dou- to them by Congress. However, USAC, itor the program to stamp out waste, bled overnight as the retrieval effort

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The community’s residents (4) the parcel of land owned by San Augus- prehensive and integrated United welcomed thousands with hospitality tine County, Texas, located at 1109 Oaklawn States research program that assists and made their civic center NASA’s Co- Street, San Augustine, Texas. the people of the United States and the (c) ADMINISTRATION.—The memorials shall lumbia retrieval command center. be administered by the Secretary. world to understand, assess, and pre- From combing the streets and fields for (d) ADDITIONAL SITES.—The Secretary may dict human-induced and natural proc- debris to making home cooked meals recommend to Congress additional sites in esses of abrupt climate change; to the for the recovery workers, the people of the State of Texas related to the Space Shut- Committee on Commerce, Science, and Lufkin mustered around the Columbia tle Columbia for establishment as memorials Transportation. tragedy. to the Space Shuttle Columbia. Ms. COLLINS. Mr. President, I rise The citizens of San Augustine, TX to introduce the Abrupt Climate were a driving force behind the recov- By Mr. THOMAS: S. 243. A bill to establish a program Change Research Act of 2005. This bill ery effort. Local elected officials and and criteria for National Heritage would authorize $10 million per year countless volunteers opened their Areas in the United States, and for for the next six years for the National hearts and their homes to strangers other purposes; to the Committee on Oceanic and Atmospheric Administra- also affected by the tragedy. Searching Energy and Natural Resources. tion, in partnership with universities the piney woods of deep east Texas on Mr. THOMAS. Mr. President, I rise across the Nation, to conduct research horseback and walking the streets in today to introduce the ‘‘National Her- on abrupt climate change. search of shuttle fragments, the spirit itage Partnership Act,’’ a bill to estab- The subject of climate change re- of San Augustine could not be crushed. lish a program and criteria for Na- mains controversial. Nevertheless, I be- In recent years, America has experi- tional Heritage Areas in the United lieve there is one issue on which al- enced grief with the loss of many he- States. most everyone can agree: A great deal roes. But our collective loss with the Twenty-seven National Heritage more scientific research is necessary in Columbia tragedy still sears our souls Areas currently exist in this country, order to better understand the poten- and the pain is never easy to bear. including 4 new areas designated in ap- tial risk of abrupt climate change. Today, two years after they vanished propriations bills by the 108th Con- Understanding and predicting cli- into the deep blue skies of Texas, we gress. Six occur in the State of Penn- mate change are enormous scientific pause to remember and honor Rick sylvania alone. They range in size from challenges. The challenges are made Husband, Kalpana Chawla, Laurel a 10-mile canal in Augusta, GA, to the even more difficult with the recogni- Clark, Ilan Roman, William McCool, entire State of Tennessee. Specific tion that the climate system is capable David Brown, and Michael Anderson. areas are designated to recognize and And though the families’ losses can- of dramatic and abrupt changes. Sci- preserve the cultural heritage of the oil not be diminished, their pain and grief entists have determined that past glob- industry, coal mining, the evolution of is shared around the world and our al temperatures have swung as much as manned flight, and the Civil War, just ° prayers are with them. This bill will 20 F within a decade, accompanied by to name a few. The National Park memorialize their sacrifice and will drought in some places and cata- Service has responsibility for advising honor the courageous spirit of the com- strophic floods in other places. An ab- heritage area managers and providing munities affected. Their sacrifices will rupt climate change triggered by the Federal funds, but a formal process and never be forgotten. ongoing buildup of greenhouse gases in I ask unanimous consent that the criteria for designating new areas do the atmosphere would also likely re- text of the bill be printed in the not exist. sult in the redistribution of atmos- State delegations are planning to in- RECORD. pheric moisture and rainfall, with sub- There being no objection, the bill was troduce legislation to designate 13 new stantial impact on the world’s food National Heritage Areas and authorize ordered to be printed in the RECORD, as supplies. Unfortunately, we have no follows: studies on an additional 5. Hundreds of satisfactory understanding of what State heritage areas currently exist S. 242 triggers abrupt climate changes. and all could potentially become Na- Be it enacted by the Senate and House of Rep- Both the National Academy of resentatives of the United States of America in tional Heritage Areas under the cur- Sciences and the Administration’s Congress assembled, rent process. This program is out of Strategic Climate Change Science Plan SECTION 1. SHORT TITLE. control. We are continuing to put un- identify abrupt climate change as a This Act may be cited as the ‘‘Columbia necessary fiscal and resource demands key priority for additional research. In Space Shuttle Memorials Act of 2005’’. on the National Park Service at a time a 2002 report, the National Academy of SEC. 2. DEFINITIONS. when a significant maintenance back- Sciences stated that ‘‘Large, abrupt In this Act: log exists in park units throughout the climate changes have repeatedly af- (1) MEMORIAL.—The term ‘‘memorial’’ Nation. We have no established criteria means each of the memorials to the Space fected much or all of the Earth.’’ Fur- to ensure the recognition of truly na- thermore, the report stated that ‘‘ab- Shuttle Columbia established by section 3(a). tionally important areas. (2) SECRETARY.—The term ‘‘Secretary’’ rupt climate changes are not only pos- During the 108th Congress, the Na- means the Secretary of the Interior, acting sible but likely in the future, poten- tional Parks Subcommittee conducted through the Director of the National Park tially with large impacts on eco- two hearings on heritage areas and re- Service. systems and societies.’’ The report ceived a review from the General Ac- SEC. 3. MEMORIALS TO THE SPACE SHUTTLE CO- noted that we’re not doing nearly LUMBIA. counting Office. My legislation com- enough to identify even the threat of (a) ESTABLISHMENT.—There are established, bines the recommendations of the Na- abrupt climate change. My bill would as units of the National Park System, 4 me- tional Park Service, General Account- lay the framework and provide the morials to the Space Shuttle Columbia to be ing Office, and witness testimony by located on the 4 parcels of land in the State funds for the United States to under- establishing criteria such as national of Texas described in subsection (b) on which stand and address abrupt climate large debris from the Space Shuttle Colum- importance, creating a process for studying and reviewing new areas, re- change. bia was recovered. One reason this funding is so urgent (b) DESCRIPTION OF LAND.—The parcels of quiring fiscal accountability and pro- is that we’re rapidly losing one of the land referred to in subsection (a) are— tecting the rights of property owners. (1) the parcel of land owned by the Fre- This legislation is overdue. It pro- greatest sources of information: Ice donia Corporation, located at the southeast vides a balanced approach to National cores from glaciers. The University of corner of the intersection of East Hospital Heritage Area designation, manage- Maine’s Climate Change Institute has Street and North Fredonia Street, ment, and oversight. one of the best abrupt climate change Nacogdoches, Texas; research programs in the world. The (2) the parcel of land owned by Temple In- By Ms. COLLINS (for herself, Ms. Climate Change Institute uses ice cores land Inc., 10 acres of a 61-acre tract bounded from glaciers and ice sheets around the by State Highway 83 and Bayou Bend Road, CANTWELL, Ms. SNOWE, Mrs. Hemphill, Texas; MURRAY, Mr. JEFFORDS, and Mr. world to make discoveries that change (3) the parcel of land owned by the city of DEWINE): the way we think about climate Lufkin, Texas, located at City Hall Park, 301 S. 245. A bill to provide for the devel- change. Unfortunately, numerous gla- Charlton Street, Lufkin, Texas; and opment and coordination of a com- ciers around the world are melting; and

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S751 when they go, we lose the very record I am grateful to my cosponsors, Sen- mon ground through recommendations that has given us so much of this crit- ators CANTWELL, SNOWE, MURRAY, JEF- that could be helpful to all govern- ical climatic history. FORDS, and DEWINE. I look forward to ments and policymakers worldwide for I recently had the opportunity to see working with all of my colleagues over developing solutions to address climate for myself how scientists are able to the coming months in order to address change. use glaciers and ice sheets to under- this important issue. Indeed, our first recommendation stand climate change. In August, I Ms. SNOWE. Mr. President, I rise calls for a long-term objective to pre- traveled with Senators MCCAIN, today to cosponsor the Abrupt Climate vent global average temperature from SUNUNU, and others to the northern- Change Research Act of 2005, legisla- rising more than 2 degrees Centigrade, most community in the world. We vis- tion which will address the critical, or 3.6 degrees Fahrenheit, above the ited Ny-Alesund on the Norwegian is- comprehensive and integrated research pre-industrial level by 2100. This target land of Spitsbergen. Located at 79 de- needed for abrupt climate change. In would limit the extent and magnitude grees north, Ny-Alesund lies well north the 108th, this legislation was passed of the impacts of climate change if all of the Arctic Circle and is much closer by the Senate Commerce Committee. countries take various actions. I will to the North Pole than to Oslo, the Its merits are just as pressing, if not ask unanimous consent to submit the country’s capital. It has even served as more critical, for the 109th Congress as ICCT’s ten recommendations for the a starting point for several polar expe- the legislation calls for developing and RECORD. In the upcoming weeks and ditions, although thankfully, Senator coordinating a research program over 6 months, I will be introducing legisla- tion that reflects these public policy MCCAIN did not include an attempt to years aimed at understanding, assess- reach the North Pole on our itinerary. ing, and predicting both human-in- recommendations. The temperature goal is crucial to The scientists we met with told us duced and natural processes of abrupt the debate on abrupt climate change that the global climate is changing climate change. because, if the earth goes beyond the 2 more rapidly now than at any time The abrupt climate change research degree C level, scientists have sug- since the beginning of civilization. issue is one that the Maine Senate del- gested that risks to both ecosystems They further state that the region of egation has been working on for the and humans increase significantly. As the globe changing most rapidly is the past 31⁄2 years, the genesis of which the risks of accelerated or—as our re- Arctic. The changes are remarkable goes back to a Climate Change Con- port stated—‘‘runaway’’ climate and disturbing. ference in Maine in October 2001, which change increases, a ‘‘tipping point’’ In the last 30 years, the Arctic has was attended by a wide array of stake- could be reached that would include lost sea-ice cover over an area 10 times holders in the State who have been ac- the loss of the West Antarctic and as large as the State of Maine. In the tive in climate change issues for a Greenland ice sheets, leading to the summer, the change is even more dra- number of years. rise of sea levels. matic, with twice as much ice loss. The I believe we all ought to be concerned On this score, abrupt and ice that remains is as much as 40 per- by the picture scientific research is paleoclimate research can greatly en- cent thinner than it was just a few dec- painting, which points to the reality hance the evolving body of scientific ades ago. In addition to disappearing and potential impact of abrupt shifts in evidence, and that is why Senator LAU- sea-ice, Arctic glaciers are also rapidly climate. The December 2001 National TENBERG and I spearheaded the effort retreating. In Ny-Alesund, Senator Academy of Sciences report docu- last year to restore the FY2005 Na- MCCAIN and I witnessed massive blocks mented a growing body of scientific tional Oceanic and Atmospheric Ad- of ice falling off glaciers that had al- evidence that suggests our global cli- ministration, NOAA, research pro- ready retreated well back from the mate can swing abruptly, not gradually grams that will enable us to examine shores where they once rested. over time. Moreover, such sudden past climate change patterns. This in- The melting of glaciers and sea ice, jumps, and I quote from the Acad- formation will guide the development the thawing of permafrost, and the in- emies’ report, ‘‘are not only possible of future models to assist both sci- creases in sea levels resulting from but likely in the future.’’ entists and policymakers to improve warming are already beginning to Rather than dismiss this, as some their understanding of climate change cause environmental, social, and eco- have, as the ‘‘science de jour’’ I prefer through, for instance, the CORC– nomic changes. Indeed, the social and to take this as a serious warning, based ARCHES program and paleo- economic disruption resulting from cli- on the best available evidence and climate research. The University of mate change is already evident in a analysis. The risk of complacency is to Maine, under the direction of Dr. number of regions throughout the Arc- gamble immense environmental and George Denton, has been part of the tic, including Alaska. Some coastal societal consequences. That’s why the decades-long consortium that has been communities in Alaska are facing in- NAS report urged that a new research studying deep ocean currents in the creased exposure to storms and coastal program be initiated to examine the Weddell Sea in Antarctica, and ice core erosion as a reduction in sea ice allows potential impact of a sudden change in samples from northern latitudes, which higher waves and storm surges to reach climate in response to global warming. is helping scientists command a great- shore. In other areas, thawing ground And that’s also why, back in May of er understanding of abrupt climate is disrupting transportation, buildings, 2002, when NOAA’s Admiral change. and other infrastructure. Some indige- Lautenbacher was before the Com- There have also been other, newer nous communities are already facing merce Committee testifying on NOAA’s scientific reports that should give us the prospect of relocating. If these FY 2003 Budget, I raised the need for great pause. Among those reports, the changes were to be compounded with abrupt climate change studies, and the Arctic Climate Impact Assessment an abrupt climate change on the scale Admiral agreed this is a pressing pri- states, ‘‘Arctic average temperature seen in our climatic history, the result ority. Since the introduction of the re- has risen at almost twice the rate as could be devastating. search bill in the 108th Congress, the rest of the world in the past few I know that my colleague, the chair- NOAA, in a January 15, 2004 report, decades. Widespread melting of glaciers man of the Commerce Committee and stated that calendar year 2003 tied 2002 and sea ice and rising permafrost tem- senior Senator from Alaska, is very as the 2nd warmest year on record. peratures present additional evidence concerned about how Arctic climate Mr. President, as co-chair of the of strong arctic warming. These changes are affecting his State. I know independent International Climate changes in the Arctic provide an early he recognizes that more research fund- Change Taskforce, I was pleased to dis- indication of the environmental and so- ing is necessary in order to understand seminate to my colleagues the recently cietal significance of global warming.’’ future climate changes. I look forward published Taskforce report, ‘‘Meeting There is scientific observational evi- to working with Chairman STEVENS, the Climate Challenge.’’ The ICCT in- dence that indicates that regional Ranking Member INOUYE, and other cludes leaders from public service, changes in climate, particularly in- members of the Commerce Committee science, business and civil society, creases in temperature, are already af- to address this extremely important from both developed and developing fecting a diverse set of physical and bi- issue in the 109th Congress. countries. Our goal was to find com- ological systems in many parts of the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S752 CONGRESSIONAL RECORD — SENATE February 1, 2005 world. Off the coast of Canada lies a industrial level, to limit the extent and mag- ease this financial burden, we can en- 150–square mile, 100–foot thick mass of nitude of climate-change impacts. courage the development of more sta- ice that has existed on the coast for 2. A global framework be adopted that ble families and provide a brighter fu- 3,000 years, but it is now disinte- builds on the UNFCCC and the Kyoto Pro- ture for thousands of children. tocol, and enables all countries to be part of These important goals prompted us grating. That melting has been accel- concerted action on climate change at the erating over the past 2 years. In addi- global level in the post-2012 period, on the to act 4 years ago, when we passed tion, coral reefs, an irreplaceable ma- basis of equity and common but differen- adoption tax incentives in the 2001 tax rine resource around the world, are tiated responsibilities. bill. However, they are set to sunset under tremendous stress as coral 3. G8 governments establish national re- and will expire on December 31, 2010. I bleaching is induced by high water newable portfolio standards to generate at believe it is essential that we support temperatures. Indeed, there are reports least 25% of electricity from renewable en- the American family and extend these ergy sources by 2025, with higher targets provisions. of a massive region-wide decline of needed for some G8 governments. coral which supports a huge variety of This bill repeals the sunset for adop- 4. G8 governments increase their spending tion tax credits. Specifically, this will sea life across the entire Caribbean on research, development, and demonstra- Basin. allow those Americans who adopt a tion of advanced technologies for energy-effi- child to continue to receive a credit in As we turn to the future, we should cient and low- and zero-carbon energy supply harbor no illusions that we are looking by two-fold or more by 2010, at the same the amount of their qualified expenses and guarantees the maximum $10,000 at a timetable measured in epochs. We time as adopting near-term strategies for the credit for those who adopt children are talking about tens of thousands of large-scale deployment of existing low- and with special needs. If we fail to act, years. To the contrary, observed no-carbon technologies. 5. The G8 and other major economies, in- these credits would revert to $5,000. changes tell us that the snows of Kili- cluding from the developing world, form a This legislation also continues the ex- manjaro could vanish in 15 years, the G8+ Climate Group, to pursue technology panded eligibility for adoption assist- glaciers in the Bolivian Andes that agreements and related initiatives that will ance programs for those earning up to once appeared indestructible may dis- lead to large emissions reductions. $150,000, rather than allowing it to fall 6. The G8+ Climate Group agree to shift appear in another 10 years, and in Alas- back to $75,000. ka, where the average temperature has their agricultural subsidies from food crops to biofuels, especially those derived from cel- I am pleased that a bipartisan group risen almost 5 and one half degrees of Senators has cosponsored this legis- over the past 30 years, there is evidence lulosic materials, while implementing appro- priate safeguards to ensure sustainable farm- lation, and that it has been endorsed of melting permafrost and dying for- ing methods are encouraged, culturally and by the National Council for Adoption. ests. ecologically sensitive land preserved, and Those children without parents and So my question is, what are we wait- biodiversity protected. those parents without children need ing for? Is this the kind of legacy we 7. All developed countries introduce na- our help to bring them together. We want to leave to future generations and tional mandatory cap-and-trade systems for owe it to them to act now. the next millennium? Why not apply carbon emissions, and construct them to now the lessons of the past and allow for their future integration into a sin- By Mr. DEMINT: present? gle global market. S. 248. A bill to amend title 23, 8. Governments remove barriers to and in- Indeed, if ‘‘past is prologue,’’ and I United States Code, to permit States crease investment in renewable energy and to carry out surface transportation believe it is, this bill will improve our energy efficient technologies and practices understanding of climate change by through such measures as the phase-out of program projects on local roads to ad- calling for research to bolster existing, fossil fuel subsidies and requiring Export dress safety concerns; to the Com- global records of past abrupt climate Credit Agencies and Multilateral Develop- mittee on Environment and Public change, through the study of ice cores, ment Banks to adopt minimum efficiency or Works. for instance. In this manner we can im- carbon intensity standards for projects they Mr. DEMINT. Mr. President, each prove scientific understanding of the support. State has unique road needs and dif- 9. Developed countries honour existing mechanisms of abrupt climate change, ferent transportation priorities. In commitments to provide greater financial order to more effectively leverage lim- and incorporate this knowledge into and technical assistance to help vulnerable current scientific models. Even for ited dollars, State transportation agen- countries adapt to climate change, including cies need increased flexibility to use those who question prevailing sci- the commitments made at the seventh con- Federal funds for projects identified as entific opinion on the climate change ference of the parties to the UNFCCC in 2001, and pursue the establishment of an inter- safety concerns. issue, this bill should hold the appeal Currently, when an urgent need of increasing our stock of knowledge, national compensation fund to support dis- aster mitigation and preparedness. arises, a State must apply to the Sec- wherever it may lead. retary of Transportation for a waiver In the final analysis, we need to 10. Governments committed to action on climate change raise public awareness of the and fill out mountains of paperwork in carry out research that will allow us to problem and build public support for climate order to transfer funds to critical pri- gauge climate change secrets of the policies by pledging to provide substantial orities. We need to empower States to past, so we in turn might develop fu- long-term investment in effective climate make their own decisions when it ture models that will assist both sci- communication activities. comes to meeting their most urgent entists and policymakers in under- safety needs. standing climate change. The reality By Mr. BUNNING (for himself, Today, I introduce legislation called is, there is no doubt our global climate Mr. NELSON of Nebraska, Mr. the Surface Transportation Adapt- has changed in the past. There should DEMINT, Mr. CRAIG, Mr. INHOFE, ability to Ensure Safety Act or similarly be no question that it would Mr. BROWNBACK, Mr. LUGAR, ‘‘STATES Act,’’ which allows States to be beneficial to understand the manner Mr. SANTORUM, Mr. COLEMAN, undertake a surface transportation in which that change has occurred and and Mr. DOMENICI): project on any State-maintained public why, and so I urge my colleague’s sup- S. 246. A bill to repeal the sunset of road if the State determines that the port for this legislation, and will work the Economic Growth and Tax Relief project is necessary to address high fa- for its passage out of the Commerce Reconciliation Act of 2001 with respect tality rates or other safety concerns. Committee and to the Senate floor. to the expansion of the adoption credit This bill empowers States, such as I ask unanimous consent that the and adoption assistance programs; to South Carolina, to respond to serious Summary of Main Recommendations the Committee on Finance. needs quickly, while also allowing be printed in the RECORD. Mr. BUNNING. Mr. President, I rise them to make the most efficient use of There being no objection, the mate- today to introduce the Adoption Tax the transportation dollars they receive. rial was ordered to be printed in the Relief Guarantee Act of 2005. This leg- Under this legislation, a State can de- RECORD, as follows: islation will help American families cide to use its Surface Transportation SUMMARY OF MAIN RECOMMENDATIONS break the financial barriers to success- Program funding on a road function- 1. A long-term objective be established to fully adopting a child, especially those ally classified as a rural or minor col- prevent global average temperature from ris- children with special needs who cannot lector without getting permission from ing more than 2°C (3.6°F) above the pre- take care of themselves. By helping to Washington.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S753 No red tape. No Federal bureaucracy. vada, it encompasses forests of ciated with the Great Basin Heritage Route Just a decision made at the local level bristlecone pine, the oldest living include the social history and living cultural by the people with the best under- things on the earth. In Utah, the Route traditions of a rich diversity of nationalities; standing of the situation. It is time to includes native Bonneville cutthroat (4) the pioneer, Mormon, and other reli- gious settlements, and ranching, timber, and bring safety decisions down to the local trout as well as other distinctive spe- mining activities of the region played and level and give each State the discretion cies and ecological communities. continue to play a significant role in the de- to allocate funds to the most pressing Designation of the corridor as a Her- velopment of the United States, shaped by— safety concerns in its highway pro- itage Route will also ensure long-term (A) the unique geography of the Great gram. protection of key educational and rec- Basin; I ask unanimous consent that the reational opportunities without com- (B) an influx of people of Greek, Chinese, text of the bill be printed in the promising traditional local use of the Basque, Serb, Croat, Italian, and Hispanic descent; and RECORD. land. The Great Basin National Herit- (C) a Native American presence (Western There being no objection, the bill was age Route will provide a framework for Shoshone, Northern and Southern Paiute, ordered to be printed in the RECORD, as celebrating Nevada’s and Utah’s rich and Goshute) that continues in the Great follows: historic, archaeological, cultural, and Basin today; S. 248 natural resources for both visitors and (5) the Great Basin housed internment Be it enacted by the Senate and House of Rep- residents. camps for Japanese-American citizens dur- resentatives of the United States of America in The bill will establish a board of di- ing World War II, 1 of which, Topaz, was lo- Congress assembled, rectors consisting of local officials cated along the Heritage Route; (6) the pioneer heritage of the Heritage SECTION 1. SHORT TITLE. from both counties and tribes to man- Route includes the Pony Express route and This Act may be cited as the ‘‘Surface age the designated route. The board stations, the Overland Stage, and many ex- Transportation Adaptability to Ensure Safe- will develop a management plan within amples of 19th century exploration of the ty (STATES) Act of 2005’’. 3 years of the bill’s passage, and the western United States; SEC. 2. LOCATION OF SURFACE TRANSPOR- Secretary of the Interior will enter (7) the Native American heritage of the TATION PROGRAM PROJECTS. into a memorandum of understanding Heritage Route dates back thousands of Section 133(c) of title 23, United States years and includes— Code, is amended— with the Board of Directors for the (A) archaeological sites; (1) by striking ‘‘Except’’ and inserting the management of the resources of the (B) petroglyphs and pictographs; following: heritage route. Our legislation author- (C) the westernmost village of the Fremont ‘‘(1) IN GENERAL.—Except’’; and izes up to $10 million to carry out the culture; and (2) by adding at the end the following: Act but limits Federal funding to no (D) communities of Western Shoshone, ‘‘(2) SAFETY PROJECTS.—Notwithstanding more than 50 percent of the project’s Paiute, and Goshute tribes; paragraph (1), a State may undertake a sur- cost. The bill allows the Secretary to (8) the Heritage Route contains multiple face transportation program project on any provide assistance for 15 years after the biologically diverse ecological communities State-maintained public road, including a that are home to exceptional species such road functionally classified as a local or bill is enacted. as— rural minor collector, if the State deter- Our bill benefits not just the people (A) bristlecone pines, the oldest living mines that the project is necessary to ad- of Nevada and Utah, but citizens of trees in the world; dress high fatality rates or other safety con- every State in our Union. It highlights (B) wildlife adapted to harsh desert condi- cerns.’’. an area of outstanding cultural and tions; natural value and brings people to- (C) unique plant communities, lakes, and By Mr. REID (for himself, Mr. gether to celebrate common values and streams; and ENSIGN, and Mr. BENNETT): a common history of which we all can (D) native Bonneville cutthroat trout; S. 249. A bill to establish the Great be proud. (9) the air and water quality of the Herit- Basin National Heritage Route in the I was pleased that my distinguished age Route is among the best in the United States of Nevada and Utah; to the colleagues recognized the value of this States, and the clear air permits outstanding Committee on Energy and Natural Re- legislation during the 108th Congress viewing of the night skies; sources. and supported its passage by the En- (10) the Heritage Route includes unique Mr. REID. Mr. President, I rise today and outstanding geologic features such as ergy and Natural Resources Committee numerous limestone caves, classic basin and for myself, Senator ENSIGN and Sen- and by the Senate as a whole. I look range topography with playa lakes, alluvial ator BENNETT to introduce this bill, forward to working with my friends to fans, volcanics, cold and hot springs, and rec- which will establish a National Herit- move this bill in a timely manner dur- ognizable features of ancient Lake Bonne- age Route in eastern Nevada and west- ing the current session. ville; ern Utah. I ask unanimous consent that the (11) the Heritage Route includes an un- National Heritage areas, corridors, text of the bill be printed in the usual variety of open space and recreational and routes are designated regions in RECORD. and educational opportunities because of the which residents and businesses, as well There being no objection, the bill was great quantity of ranching activity and pub- as local and tribal governments join to- lic land (including city, county, and State ordered to be printed in the RECORD, as parks, national forests, Bureau of Land Man- gether in partnership to conserve and follows: agement land, and a national park); celebrate cultural heritage and special S. 249 (12) there are significant archaeological, landscapes. The Great Basin National Be it enacted by the Senate and House of Rep- historical, cultural, natural, scenic, and rec- Heritage Route includes historic min- resentatives of the United States of America in reational resources in the Great Basin to ing camps and ghost towns, Mormon Congress assembled, merit the involvement of the Federal Gov- and other pioneer settlements, as well SECTION 1. SHORT TITLE. ernment in the development, in cooperation as Native American communities. The This Act may be cited as the ‘‘Great Basin with the Great Basin Heritage Route Part- Route passes through classic Great National Heritage Route Act’’. nership and other local and governmental SEC. 2. FINDINGS AND PURPOSES. entities, of programs and projects to— Basin country along the trails of the (A) adequately conserve, protect, and in- Pony Express and the Overland Stage. (a) FINDINGS.—Congress finds that— (1) the natural, cultural, and historic herit- terpret the heritage of the Great Basin for Cultural resources within the route in- age of the North American Great Basin is na- present and future generations; and clude highly valued Native American tionally significant; (B) provide opportunities in the Great archaeological sites dating back to the (2) communities along the Great Basin Basin for education; and Fremont Culture. Heritage Route (including the towns of (13) the Great Basin Heritage Route Part- The creation of this Heritage Route Delta, Utah, Ely, Nevada, and the sur- nership shall serve as the management enti- will bring much deserved attention to rounding communities) are located in a clas- ty for a Heritage Route established in the Great Basin. the Great Basin’s natural wonders. sic western landscape that contains long nat- Passing through Millard County, UT, ural vistas, isolated high desert valleys, (b) PURPOSES.—The purposes of this Act mountain ranges, ranches, mines, historic are— and parts of the Duckwater Reserva- railroads, archaeological sites, and tribal (1) to foster a close working relationship tion and White Pine County in Nevada, communities; with all levels of government, the private the Route contains items of great bio- (3) the Native American, pioneer, ranching, sector, and the local communities within logical and geological interest. In Ne- mining, timber, and railroad heritages asso- White Pine County, Nevada, Millard County,

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S754 CONGRESSIONAL RECORD — SENATE February 1, 2005 Utah, and the Duckwater Shoshone Reserva- volved in developing and implementing the (A) has strong local support from a diver- tion; management plan; and sity of landowners, business interests, non- (2) to enable communities referred to in (5) a description of the role of the States of profit organizations, and governments asso- paragraph (1) to conserve their heritage Nevada and Utah in the management of the ciated with the Heritage Route; while continuing to develop economic oppor- Heritage Route. (B) is consistent with and complements tunities; and (c) ADDITIONAL REQUIREMENTS.—In devel- continued economic activity along the Herit- (3) to conserve, interpret, and develop the oping the terms of the memorandum of un- age Route; archaeological, historical, cultural, natural, derstanding, the Secretary and the manage- (C) has a high potential for effective part- scenic, and recreational resources related to ment entity shall— nership mechanisms; the unique ranching, industrial, and cultural (1) provide opportunities for local partici- (D) avoids infringing on private property heritage of the Great Basin, in a manner pation; and rights; and that promotes multiple uses permitted as of (2) include terms that ensure, to the max- (E) provides methods to take appropriate the date of enactment of this Act, without imum extent practicable, timely implemen- action to ensure that private property rights managing or regulating land use. tation of all aspects of the memorandum of are observed. SEC. 3. DEFINITIONS. understanding. (3) ACTION FOLLOWING DISAPPROVAL.—If the In this Act: (d) AMENDMENTS.— Secretary disapproves a management plan (1) IN GENERAL.—The Secretary shall re- (1) GREAT BASIN.—The term ‘‘Great Basin’’ under paragraph (1), the Secretary shall— means the North American Great Basin. view any amendments of the memorandum (A) advise the management entity in writ- of understanding proposed by the manage- (2) HERITAGE ROUTE.—The term ‘‘Heritage ing of the reasons for the disapproval; Route’’ means the Great Basin National Her- ment entity or the Governor of the State of (B) make recommendations for revisions to itage Route established by section 4(a). Nevada or Utah. the management plan; and (2) USE OF FUNDS.—Funds made available (3) MANAGEMENT ENTITY.—The term ‘‘man- (C) not later than 90 days after the receipt agement entity’’ means the Great Basin Her- under this Act shall not be expended to im- of any proposed revision of the management itage Route Partnership established by sec- plement a change made by a proposed plan from the management entity, approve tion 4(c). amendment described in paragraph (1) until or disapprove the proposed revision. the Secretary approves the amendment. (4) MANAGEMENT PLAN.—The term ‘‘man- (e) IMPLEMENTATION.—On approval of the agement plan’’ means the plan developed by SEC. 6. MANAGEMENT PLAN. management plan as provided in subsection (a) IN GENERAL.—Not later than 3 years the management entity under section 6(a). (d)(1), the management entity, in conjunc- after the date of enactment of this Act, the (5) SECRETARY.—The term ‘‘Secretary’’ tion with the Secretary, shall take appro- management entity shall develop and submit means the Secretary of the Interior, acting priate steps to implement the management to the Secretary for approval a management through the Director of the National Park plan. plan for the Heritage Route that— Service. (1) specifies— (f) AMENDMENTS.— SEC. 4. GREAT BASIN NATIONAL HERITAGE (A) any resources designated by the man- (1) IN GENERAL.—The Secretary shall re- ROUTE. agement entity under section 4(a); and view each amendment to the management (a) ESTABLISHMENT.—There is established (B) the specific boundaries of the Heritage plan that the Secretary determines may the Great Basin National Heritage Route to Route, as determined under section 4(b); and make a substantial change to the manage- provide the public with access to certain his- (2) presents clear and comprehensive rec- ment plan. torical, cultural, natural, scenic, and rec- ommendations for the conservation, funding, (2) USE OF FUNDS.—Funds made available reational resources in White Pine County, management, and development of the Herit- under this Act shall not be expended to im- Nevada, Millard County, Utah, and the age Route. plement an amendment described in para- Duckwater Shoshone Reservation in the (b) CONSIDERATIONS.—In developing the graph (1) until the Secretary approves the State of Nevada, as designated by the man- management plan, the management entity amendment. agement entity. shall— (b) BOUNDARIES.—The management entity SEC. 7. AUTHORITY AND DUTIES OF MANAGE- (1) provide for the participation of local MENT ENTITY. shall determine the specific boundaries of residents, public agencies, and private orga- (a) AUTHORITIES.—The management entity the Heritage Route. nizations located within the counties of Mil- may, for purposes of preparing and imple- (c) MANAGEMENT ENTITY.— lard County, Utah, White Pine County, Ne- menting the management plan, use funds (1) IN GENERAL.—The Great Basin Heritage vada, and the Duckwater Shoshone Reserva- made available under this Act to— Route Partnership shall serve as the man- tion in the protection and development of re- (1) make grants to, and enter into coopera- agement entity for the Heritage Route. sources of the Heritage Route, taking into tive agreements with, a State (including a (2) BOARD OF DIRECTORS.—The Great Basin consideration State, tribal, county, and local political subdivision), an Indian tribe, a pri- Heritage Route Partnership shall be gov- land use plans in existence on the date of en- vate organization, or any person; and erned by a board of directors that consists actment of this Act; (2) hire and compensate staff. of— (2) identify sources of funding; (A) 4 members who are appointed by the (3) include— (b) DUTIES.—In addition to developing the Board of County Commissioners for Millard (A) a program for implementation of the management plan, the management entity County, Utah; management plan by the management enti- shall— (B) 4 members who are appointed by the ty, including— (1) give priority to implementing the Board of County Commissioners for White (i) plans for restoration, stabilization, re- memorandum of understanding and the man- Pine County, Nevada; and habilitation, and construction of public or agement plan, including taking steps to— (C) a representative appointed by each Na- tribal property; and (A) assist units of government, regional tive American Tribe participating in the (ii) specific commitments by the identified planning organizations, and nonprofit orga- Heritage Route. partners referred to in section 5(b)(4) for the nizations in— SEC. 5. MEMORANDUM OF UNDERSTANDING. first 5 years of operation; and (i) establishing and maintaining interpre- (a) IN GENERAL.—In carrying out this Act, (B) an interpretation plan for the Heritage tive exhibits along the Heritage Route; the Secretary, in consultation with the Gov- Route; and (ii) developing recreational resources along ernors of the States of Nevada and Utah and (4) develop a management plan that will the Heritage Route; the tribal government of each Indian tribe not infringe on private property rights with- (iii) increasing public awareness of and ap- participating in the Heritage Route, shall out the consent of the owner of the private preciation for the archaeological, historical, enter into a memorandum of understanding property. cultural, natural, scenic, and recreational re- with the management entity. (c) FAILURE TO SUBMIT.—If the manage- sources and sites along the Heritage Route; (b) INCLUSIONS.—The memorandum of un- ment entity fails to submit a management and derstanding shall include information relat- plan to the Secretary in accordance with (iv) if requested by the owner, restoring, ing to the objectives and management of the subsection (a), the Heritage Route shall no stabilizing, or rehabilitating any private, Heritage Route, including— longer qualify for Federal funding. public, or tribal historical building relating (1) a description of the resources of the (d) APPROVAL AND DISAPPROVAL OF MAN- to the themes of the Heritage Route; Heritage Route; AGEMENT PLAN.— (B) encourage economic viability and di- (2) a discussion of the goals and objectives (1) IN GENERAL.—Not later than 90 days versity along the Heritage Route in accord- of the Heritage Route, including— after receipt of a management plan under ance with the objectives of the management (A) an explanation of the proposed ap- subsection (a), the Secretary, in consultation plan; and proach to conservation, development, and in- with the Governors of the States of Nevada (C) encourage the installation of clear, terpretation; and and Utah, shall approve or disapprove the consistent, and environmentally appropriate (B) a general outline of the anticipated management plan. signage identifying access points and sites of protection and development measures; (2) CRITERIA.—In determining whether to interest along the Heritage Route; (3) a description of the management entity; approve a management plan, the Secretary (2) consider the interests of diverse govern- (4) a list and statement of the financial shall consider whether the management mental, business, and nonprofit groups asso- commitment of the initial partners to be in- plan— ciated with the Heritage Route;

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This approach provides cluding any increase of more than 20 percent Federal share may be in the form of in-kind in the cost estimates for implementation) to contributions, donations, grants, and loans a good platform from which we can bet- the management plan to the Secretary for from individuals and State or local govern- ter coordinate workforce preparation approval by the Secretary; and ments or agencies. policy and training with an emphasis (5) for any year for which Federal funds are SEC. 11. TERMINATION OF AUTHORITY. on lifelong learning. It is essential to received under this Act— The authority of the Secretary to provide facilitate a sequence of career or tech- (A) submit to the Secretary a report that assistance under this Act terminates on the nical education courses that a student describes, for the year— date that is 15 years after the date of enact- can complete before they even get to (i) the accomplishments of the manage- ment of this Act. college, and that they can continue at ment entity; the postsecondary level, whenever they Mr. ENZI (for himself and Mr. (ii) the expenses and income of the man- decide to go on. agement entity; and Kennedy): This legislation introduced today is (iii) each entity to which any loan or grant S. 250. A bill to amend the Carl D. the result of a bipartisan process that was made; Perkins Vocational and Technical Edu- began in the 108th Congress. I’m (B) make available for audit all records cation Act of 1998 to improve the Act; pleased to have worked with the Mem- pertaining to the expenditure of the funds to the Committee on Health, Edu- and any matching funds; and bers of the Committee and stake- cation, Labor, and Pensions. (C) require, for all agreements authorizing holders on a bipartisan bill that will Mr. ENZI: Mr. President, I rise today the expenditure of Federal funds by any enti- improve the Perkins Act to better to introduce the Carl D. Perkins Voca- ty, that the receiving entity make available meet the needs of students, workers, tional and Technical Education Im- for audit all records pertaining to the ex- and business. This legislation will help provement Act of 2005. The Perkins penditure of the funds. strengthen the Perkins program by im- (c) PROHIBITION ON THE ACQUISITION OF Act, together with the Workforce In- proving accountability, involving busi- REAL PROPERTY.—The management entity vestment Act, the Higher Education nesses in career and technical edu- shall not use Federal funds made available Act, and other federal education and cation programs, emphasizing chal- under this Act to acquire real property or programs, provides important re- any interest in real property. lenging academic instruction, and ad- sources that are needed to help ade- (d) PROHIBITION ON THE REGULATION OF vancing the field of career and tech- quately prepare students of all ages for LAND USE.—The management entity shall nical education by linking those pro- jobs in high-wage and highskilled occu- not regulate land use within the Heritage grams to advances in industry. pations. It is part of a group of federal Route. This legislation would also encourage education and programs that are crit- SEC. 8. DUTIES AND AUTHORITIES OF FEDERAL greater collaboration between state AGENCIES. ical to a lifelong of learning. In this agencies responsible for education and (a) TECHNICAL AND FINANCIAL ASSIST- technology driven, global economy, training activities. It requires state ANCE.— school is never out. Everyone is a stu- agencies to work together on identi- (1) IN GENERAL.—The Secretary may, on re- dent who must adapt to the changing fying the needs of the workforce and quest of the management entity, provide needs of their jobs and the workforce technical and financial assistance to develop designing curriculum to match those by continuing to pursue an education and implement the management plan and needs. It also emphasizes the needs of in their chosen field. In turn, Congress memorandum of understanding. nontraditional students and other life- must ensure that education and train- (2) PRIORITY FOR ASSISTANCE.—In providing long learners, who are returning to ing are connected to the needs of busi- assistance under paragraph (1), the Secretary school for the first time, or those who shall, on request of the management entity, ness, including small businesses, now give priority to actions that assist in— are seeking additional skill training. and into the future. This legislation also continues to em- (A) conserving the significant archae- It is my hope that this body will take ological, historical, cultural, natural, scenic, phasize the need to introduce women the necessary action to reauthorize the and girls to high skill, high wage jobs. and recreational resources of the Heritage Carl D. Perkins Vocational and Tech- Route; and It is important that we help expand the (B) providing education, interpretive, and nical Education Act. The Act works to- vision of our students to ensure they recreational opportunities, and other uses gether with a combination of federal consider all the options that are avail- consistent with those resources. education and training programs that able to them, not just the ones that fit (b) APPLICATION OF FEDERAL LAW.—The es- will strengthen our workforce and en- general, and sometimes erroneous, con- tablishment of the Heritage Route shall have able America to compete—and suc- ceptions. no effect on the application of any Federal ceed—in the global economy. I hope our bipartisan efforts will con- law to any property within the Heritage At a hearing held on June 24, 2004, be- Route. tinue to produce results as we move fore the Health, Education, Labor and the bill through the Senate and into SEC. 9. LAND USE REGULATION; APPLICABILITY Pensions Committee, members heard OF FEDERAL LAW. Conference. I do not wish to see an- testimonies from leaders in career and (a) LAND USE REGULATION.—Nothing in this other piece of bipartisan legislation Act— technical training emphasizing the im- lost in the legislative limbo of election (1) modifies, enlarges, or diminishes any portance of constant training, retrain- year politics. An important step that authority of the Federal, State, tribal, or ing and upgrading of the skills today’s the Senate must take is to appoint local government to regulate by law (includ- jobs require. One of the things we conferees to finish the reauthorization ing by regulation) any use of land; or learned at that hearing is that many of the Workforce Investment Act. That (2) grants any power of zoning or land use students leaving high school or college program offers the resources that are to the management entity. and entering the workforce find them- (b) APPLICABILITY OF FEDERAL LAW.—Noth- needed to help adequately prepare ing in this Act— selves unprepared for life because they more than 900,000 unemployed workers (1) imposes on the Heritage Route, as a re- lack the skills they need to succeed in find work each year. It passed the Sen- sult of the designation of the Heritage the workforce. This country created ate unanimously, both in Committee Route, any regulation that is not applicable over 2 million new jobs since January and the floor. Conferees must now be to the area within the Heritage Route as of 2001. That’s great news. Unfortunately, appointed before the August recess. If the date of enactment of this Act; or the complaint heard from employers is we are going to help workers in this (2) authorizes any agency to promulgate a that there are too few skilled workers country, we must send this important regulation that applies to the Heritage to meet their needs. We have a strong Route solely as a result of the designation of legislation to Conference so that it will the Heritage Route under this Act. interest in making sure this is cor- ultimately reach the President and be rected. The Perkins Act would provide SEC. 10. AUTHORIZATION OF APPROPRIATIONS. signed into law. (a) IN GENERAL.—There is authorized to be both strong academic and relevant job I cannot stress enough the impor- appropriated to carry out this Act $10,000,000, skill training to promote and sustain tance of Federal initiatives like the of which not more than $1,000,000 may be the long-term competitiveness of this Carl D. Perkins Vocational and Tech- made available for any fiscal year. country. nical Education Act and the Workforce

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PURPOSE. knowledge, higher-order reasoning and prob- take advantage of the opportunity we Section 2 (20 U.S.C. 2301) is amended— lem-solving skills, work attitudes, general have during this reauthorization proc- (1) by striking ‘‘vocational’’ each place the employability skills, technical skills, and oc- ess to improve the link between edu- term appears and inserting ‘‘career’’; cupation-specific skills, of an individual. cation and relevant academic and (2) in paragraph (1), by striking ‘‘stand- ‘‘(6) CAREER AND TECHNICAL EDUCATION STU- skills preparation. By so doing, we will ards’’ and inserting ‘‘and technical stand- DENT.—The term ‘career and technical edu- create a pathway to prosperity for ards, and to assist students in meeting such cation student’ means a student who enrolls standards, especially in preparation for high in a clearly defined sequence of career and American workers and businesses skill, high wage, or high demand occupations technical education courses leading to at- alike, that both will make good use of in emerging or established professions’’; tainment of technical skill proficiency, a for years to come. (3) in paragraph (2), by inserting ‘‘chal- credential, a certificate, or a degree. I ask unanimous consent that the lenging’’ after ‘‘integrate’’; ‘‘(7) CAREER AND TECHNICAL STUDENT ORGA- text of the bill be printed in the (4) in paragraph (3), by striking ‘‘and’’ NIZATION.— RECORD. after the semicolon; ‘‘(A) IN GENERAL.—The term ‘career and There being no objection, the bill was (5) in paragraph (4)— technical student organization’ means an or- (A) by inserting ‘‘conducting and’’ before ganization for individuals enrolled in a ca- ordered to be printed in the RECORD, as ‘‘disseminating national’’; reer and technical education program that follows: (B) by inserting ‘‘disseminating informa- engages in career and technical education S. 250 tion on best practices,’’ after ‘‘national re- activities as an integral part of the instruc- Be it enacted by the Senate and House of Rep- search,’’; and tional program. resentatives of the United States of America in (C) by striking the period at the end and ‘‘(B) STATE AND NATIONAL UNITS.—An orga- Congress assembled, inserting a semicolon; and nization described in subparagraph (A) may (6) by adding at the end the following: have State and national units that aggregate SECTION 1. SHORT TITLE; TABLE OF CONTENTS. ‘‘(5) promoting leadership and professional the work and purposes of instruction in ca- (a) SHORT TITLE.—This Act may be cited as development at the State and local levels, reer and technical education at the local the ‘‘Carl D. Perkins Career and Technical and developing research and best practices level. Education Improvement Act of 2005’’. for improving the quality of career and tech- ‘‘(8) CAREER GUIDANCE AND ACADEMIC COUN- (b) TABLE OF CONTENTS.—The table of con- nical education teachers, faculty, principals, SELING.—The term ‘career guidance and aca- tents for this Act is as follows: administrators, and counselors; demic counseling’ means providing access to Sec. 1. Short title; table of contents. ‘‘(6) supporting partnerships among sec- information regarding career awareness and Sec. 2. References. ondary schools, postsecondary institutions, planning with respect to an individual’s oc- Sec. 3. Purpose. area career technical centers, business and cupational and academic future that shall Sec. 4. Definitions. industry, professional associations, and involve guidance and counseling with respect Sec. 5. Transition provisions. intermediaries; and to career options, financial aid, and postsec- Sec. 6. Limitation. ‘‘(7) developing a highly skilled workforce ondary options. Sec. 7. Authorization of appropriations. needed to keep America competitive in the ‘‘(9) CAREER PATHWAY.—The term ‘career TITLE I—CAREER AND TECHNICAL EDU- global economy in conjunction with other pathway’ means a coordinated and non- CATION ASSISTANCE TO THE STATES Federal education and training programs, in- duplicative sequence of courses (which may Sec. 101. Career and technical education as- cluding workforce investment programs, include technical learning experiences) and sistance to the States. that provide lifelong learning for the work- associated credits that— Sec. 102. Reservations and State allotment. force of today and tomorrow.’’. ‘‘(A) shall identify both secondary and Sec. 103. Within State allocation. SEC. 4. DEFINITIONS. postsecondary education elements; Sec. 104. Accountability. Section 3 (20 U.S.C. 2302) is amended— ‘‘(B) shall include challenging academic Sec. 105. National activities. (1) in paragraph (2), by inserting ‘‘, includ- and career and technical education content; Sec. 106. Assistance for the outlying areas. ing employment statistics and information ‘‘(C) may include the opportunity for sec- Sec. 107. Native American program. relating to national, regional, and local ondary students to participate in dual or Sec. 108. Tribally controlled postsecondary labor market areas, as provided pursuant to concurrent enrollment programs or other career and technical institu- section 118, and career ladder information, ways to acquire postsecondary credits; and tions. where appropriate’’ after ‘‘to enter’’; ‘‘(D) may culminate in technical skill pro- Sec. 109. Occupational and employment in- (2) in paragraph (3)— ficiency, a credential, a certificate, or a de- formation. (A) in the paragraph heading, by striking gree.’’; Sec. 110. State administration. ‘‘VOCATIONAL’’ and inserting ‘‘CAREER’’; and (6) in paragraph (10) (as redesignated by Sec. 111. State plan. (B) by striking ‘‘vocational’’ each place the paragraph (4) of this section), by striking Sec. 112. Improvement plans. term appears and inserting ‘‘career’’; ‘‘5206’’ and inserting ‘‘5210’’; Sec. 113. State leadership activities. (3) by striking paragraph (4); (7) by redesignating paragraphs (11) Sec. 114. Distribution of funds to secondary (4) by redesignating paragraphs (5) through through (35) (as redesignated by paragraph school programs. (30) as paragraphs (10) through (35), respec- (4) of this section) as paragraphs (12) through Sec. 115. Distribution of funds for postsec- tively; (36), respectively; ondary career and technical (5) by inserting after paragraph (3) the fol- (8) by inserting after paragraph (10) (as re- education programs. lowing: designated by paragraph (4) of this section) Sec. 116. Special rules for career and tech- ‘‘(4) ARTICULATION AGREEMENT.—The term the following: nical education. ‘articulation agreement’ means a written ‘‘(11) COMMUNITY COLLEGE.—The term ‘com- Sec. 117. Local plan for career and technical commitment, approved annually by the rel- munity college’— education programs. evant administrators of the secondary and ‘‘(A) means an institution of higher edu- Sec. 118. Local uses of funds. postsecondary institutions, to a program cation, as defined in section 101 of the Higher Sec. 119. Tech-Prep education. that is designed to provide students with a Education Act of 1965, that provides not less nonduplicative sequence of progressive than a 2-year program that is acceptable for TITLE II—GENERAL PROVISIONS achievement leading to technical skill pro- full credit toward a baccalaureate degree; Sec. 201. Redesignation of title. ficiency, a credential, a certificate, or a de- and Sec. 202. Fiscal requirements. gree, and linked through credit transfer ‘‘(B) includes tribally controlled colleges Sec. 203. Voluntary selection and participa- agreements. or universities.’’; tion. ‘‘(5) CAREER AND TECHNICAL EDUCATION.— (9) in paragraph (12) (as redesignated by Sec. 204. Limitation for certain students. The term ‘career and technical education’ paragraph (7) of this section)— Sec. 205. Authorization of Secretary; partici- means organized educational activities (A) by striking ‘‘method of instruction’’ pation of private school per- that— and inserting ‘‘method’’; and sonnel. ‘‘(A) offer a sequence of courses (which (B) by striking ‘‘vocational’’ and inserting Sec. 206. Student assistance and other Fed- may include technical learning experiences) ‘‘career’’; eral programs. that— (10) by redesignating paragraphs (13) Sec. 207. Table of contents. ‘‘(i) provides individuals with the chal- through (36) (as redesignated by paragraph SEC. 2. REFERENCES. lenging academic and technical knowledge (7) of this section) as paragraphs (14) through Except as otherwise expressly provided, and skills the individuals need to prepare for (37), respectively; wherever in this Act an amendment or repeal further education and for careers in emerg- (11) by inserting after paragraph (12) the is expressed in terms of an amendment to, or ing and established professions; and following:

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‘‘(13) CORE ACADEMIC SUBJECTS.—The term of children in the family, and sub-State geo- TITLE I—CAREER AND TECHNICAL ‘core academic subjects’ has the meaning graphical considerations.’’; EDUCATION ASSISTANCE TO THE STATES given the term in section 9101 of the Elemen- (21) in paragraph (32) (as redesignated by SEC. 101. CAREER AND TECHNICAL EDUCATION tary and Secondary Education Act of 1965, paragraph (19) of this section)— ASSISTANCE TO THE STATES. except that under this Act such subjects in- (A) in subparagraph (C), by striking ‘‘train- Title I (20 U.S.C. 2321 et seq.) is amended cluded in such term shall be only those sub- ing and employment’’ and inserting ‘‘fields’’; by striking the title heading and inserting jects in a secondary school context.’’; and the following: (12) in paragraph (16) (as redesignated by (B) in subparagraph (F), by striking ‘‘indi- paragraph (10) of this section), by striking viduals with other barriers to educational ‘‘TITLE I—CAREER AND TECHNICAL EDU- ‘‘vocational’’ both places the term appears achievement, including’’; CATION ASSISTANCE TO THE STATES’’. and inserting ‘‘career’’; (22) in paragraph (34) (as redesignated by SEC. 102. RESERVATIONS AND STATE ALLOT- (13) in paragraph (17) (as redesignated by paragraph (19) of this section) by striking ‘‘, MENT. paragraph (10) of this section)— and instructional aids and devices’’ and in- Section 111(a) (20 U.S.C. 2321(a)) is amend- (A) in subparagraph (A), by striking ‘‘an serting ‘‘instructional aids, and work sup- ed— institution of higher education’’ and insert- ports’’; (1) in paragraph (1)(C), by striking ‘‘2001 ing ‘‘a public or nonprofit private institution (23) by striking paragraph (35) (as redesig- through 2003,’’ and inserting ‘‘2006 through of higher education that offers career and nated by paragraph (19) of this section) and 2011, not more than’’; technical education courses that lead to inserting the following: (2) in paragraph (2), in the matter pre- technical skill proficiency, an industry-rec- ‘‘(35) TECH-PREP PROGRAM.—The term ceding subparagraph (A), by striking ‘‘para- ognized credential, a certificate, or a de- ‘tech-prep program’ means a program of graph (1)’’ and inserting ‘‘paragraph (1), that gree’’; and study that— are not allotted under paragraph (5),’’; (B) in subparagraph (C), by striking ‘‘voca- ‘‘(A) combines at a minimum 2 years of (3) in paragraph (3)— tional’’ and inserting ‘‘career’’; secondary education (as determined under (A) in subparagraph (B), by striking ‘‘(or in (14) in paragraph (18)(A) (as redesignated State law) with a minimum of 2 years of the case’’ and all that follows through by paragraph (10) of this section), by striking postsecondary education in a nonduplicative, ‘‘1998)’’; and ‘‘agency, an area vocational’’ and inserting sequential course of study; (B) in subparagraph (C)— ‘‘agency (including a public charter school ‘‘(B) integrates academic and career and (i) in clause (i)(I), by striking ‘‘(or in the that operates as a local educational agency), technical education instruction, and utilizes case’’ and all that follows through ‘‘1998)’’; an area career’’; work-based and worksite learning where ap- and (15) by redesignating paragraphs (20) propriate and available; (ii) in clause (ii)(II), by striking ‘‘(or in the through (37) (as redesignated by paragraph ‘‘(C) provides technical preparation in a ca- case’’ and all that follows through ‘‘1998)’’; (10) of this section) as paragraphs (21) reer field, including high skill, high wage, or and through (38), respectively; high demand occupations; (4) by adding at the end the following: (16) by inserting after paragraph (19) (as re- ‘‘(D) builds student competence in tech- ‘‘(5) FORMULA FOR AMOUNTS IN EXCESS OF designated by paragraph (10) of this section) nical skills and in core academic subjects, as THE FISCAL YEAR 2005 FUNDING LEVEL.— the following: appropriate, through applied, contextual, ‘‘(A) IN GENERAL.—For any fiscal year for ‘‘(20) GRADUATION AND CAREER PLAN.—The and integrated instruction, in a coherent se- which the remainder of the sums appro- term ‘graduation and career plan’ means a quence of courses; priated under section 8 and not reserved written plan for a secondary career and tech- ‘‘(E) leads to technical skill proficiency, a under paragraph (1) exceeds the remainder of nical education student, that— credential, a certificate, or a degree, in a the sums appropriated under section 8 and ‘‘(A) is developed with career guidance and specific career field; not reserved under paragraph (1) for fiscal academic counseling or other professional ‘‘(F) leads to placement in appropriate em- year 2005, such excess amount shall be allot- staff, and in consultation with parents, not ployment or to further education; and ted to the States according to the formula later than in the first year of secondary ‘‘(G) utilizes career pathways, to the ex- under subparagraphs (A) through (D) of para- school or upon enrollment in career and graph (2). technical education; tent practicable.’’; ‘‘(B) MINIMUM ALLOTMENT.— ‘‘(B) is reviewed annually and modified as (24) in paragraph (37) (as redesignated by ‘‘(i) IN GENERAL.—Notwithstanding any needed; paragraph (19) of this section)— other provision of law and subject to clause ‘‘(C) includes relevant information on— (A) in the paragraph heading, by striking (ii), no State shall receive for a fiscal year ‘‘(i) secondary school requirements for ‘‘VOCATIONAL’’ and inserting ‘‘CAREER’’; under this paragraph less than 1⁄2 of 1 percent graduating with a diploma; (B) in the matter preceding subparagraph ‘‘(ii) postsecondary education admission (A)— of the excess amount described in subpara- requirements; and (i) by striking ‘‘vocational’’ and inserting graph (A). ‘‘(iii) high skill, high wage, or high demand ‘‘career’’; ‘‘(ii) REQUIREMENT.—No State, by reason of occupations and nontraditional fields in (ii) by striking ‘‘paragraph (2)’’ and insert- the application of clause (i), shall be allotted emerging and established professions, and ing ‘‘subsection (a)(2)’’; and under this paragraph for a fiscal year more labor market indicators; and (iii) by striking ‘‘paragraph (5)(A)’’ and in- than the amount determined by multi- ‘‘(D) states the student’s secondary school serting ‘‘subsection (a)(5)’’; and plying— graduation goals, postsecondary education (C) in subparagraph (F), by striking ‘‘voca- ‘‘(I) the number of individuals in the State and training, or employment goals, and iden- tional’’ and inserting ‘‘career’’; and counted under paragraph (2); by tifies 1 or more career pathways that cor- (25) by striking paragraphs (38) and (39) (as ‘‘(II) 185 percent of the national average respond to the goals.’’; redesignated by paragraph (19) of this sec- per pupil payment made with the excess (17) in paragraph (25) (as redesignated by tion). amount described in subparagraph (A) for that year.’’. paragraph (15) of this section)— SEC. 5. TRANSITION PROVISIONS. (A) in the paragraph heading, by striking SEC. 103. WITHIN STATE ALLOCATION. ‘‘TRAINING AND EMPLOYMENT’’ and inserting Section 4 (20 U.S.C. 2303) is amended by Section 112 (20 U.S.C. 2322) is amended— ‘‘FIELDS’’; and striking ‘‘the Carl D. Perkins Vocational and (1) in subsection (a)— (B) by striking ‘‘training and employment’’ Applied Technology Education Act’’ and all (A) in paragraph (1), by adding ‘‘and’’ after and inserting ‘‘fields’’; that follows through the period and inserting the semicolon; and (18) in paragraph (26) (as redesignated by ‘‘this Act, as this Act was in effect on the (B) by striking paragraphs (2) and (3) and paragraph (15) of this section), by striking day before the date of enactment of the Carl inserting the following: ‘‘the Commonwealth’’ and all that follows D. Perkins Career and Technical Education ‘‘(2) not more than 15 percent for— through the period and inserting ‘‘and the ‘‘(A) State leadership activities described Improvement Act of 2005. Each eligible agen- Commonwealth of the Northern Mariana Is- in section 124, of which— lands.’’; cy shall be assured a full fiscal year for tran- ‘‘(i) an amount determined by the eligible (19) by redesignating paragraphs (31) sition to plan for and implement the require- agency shall be made available to serve indi- through (38) (as redesignated by paragraph ments of this Act.’’. viduals in State institutions, such as State (15) of this section) as paragraphs (32) SEC. 6. LIMITATION. correctional institutions and institutions through (39), respectively; that serve individuals with disabilities; and (20) by inserting after paragraph (30) (as re- Section 6 (20 U.S.C. 2305) is amended by ‘‘(ii) not less than $60,000 shall be available designated by paragraph (15) of this section) striking the second sentence. for services that prepare individuals for non- the following: traditional fields; and SEC. 7. AUTHORIZATION OF APPROPRIATIONS. ‘‘(31) SELF-SUFFICIENCY.—The term ‘self- ‘‘(B) administration of the State plan, sufficiency’ means a standard that is adopt- Section 8 (20 U.S.C. 2307) is amended— which may be used for the costs of— ed, calculated, or commissioned by a local (1) by striking ‘‘title II’’ and inserting ‘‘(i) developing the State plan; area or State, and which adjusts for local ‘‘part D of title I’’; and ‘‘(ii) reviewing the local plans; factors, in specifying the income needs of (2) by striking ‘‘1999 through 2003’’ and in- ‘‘(iii) monitoring and evaluating program families, by family size, the number and ages serting ‘‘2006 through 2011’’. effectiveness;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S758 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(iv) assuring compliance with all applica- ‘‘(V) a certificate; and (bb) by striking ‘‘third program year’’ and ble Federal laws; ‘‘(VI) a degree. inserting ‘‘third and fifth program years’’; ‘‘(v) providing technical assistance; and ‘‘(iv) Placement in postsecondary edu- and ‘‘(vi) supporting and developing State data cation, military service, apprenticeship pro- (cc) by striking ‘‘third, fourth, and fifth’’ systems relevant to the provisions of this grams, or employment. and inserting ‘‘corresponding subsequent’’; Act.’’; ‘‘(v) Student participation in, and comple- (III) in clause (vi)(II), by inserting ‘‘and (2) in subsection (b), by striking ‘‘sub- tion of, career and technical education pro- significant’’ after ‘‘continuous’’; and section (a)(3)’’ both places the term appears grams that lead to employment in nontradi- (IV) in clause (vii), by striking ‘‘or (vi)’’ and inserting ‘‘subsection (a)(2)(B)’’; and tional fields.’’; and inserting ‘‘or (v)’’; and (3) by striking subsection (c) and inserting (ii) by redesignating subparagraphs (B) (iii) in subparagraph (B), by striking the following: through (D) as subparagraphs (C) through ‘‘(2)(B)’’ and inserting ‘‘(2)(C)’’; and ‘‘(c) RESERVE.—From amounts made avail- (E), respectively; (D) by adding at the end the following: ‘‘(4) LOCAL LEVELS OF PERFORMANCE.— able under subsection (a)(1) to carry out this (iii) by inserting after subparagraph (A) ‘‘(A) LOCAL ADJUSTED LEVELS OF PERFORM- subsection, an eligible agency may— the following: ANCE FOR CORE INDICATORS OF PERFORM- ‘‘(1) award grants to eligible recipients, or ‘‘(B) CORE INDICATORS OF PERFORMANCE FOR consortia of eligible recipients, for career ANCE.— POSTSECONDARY CAREER AND TECHNICAL STU- and technical education activities described ‘‘(i) IN GENERAL.—Each eligible recipient DENTS.—Each eligible agency shall identify in section 135 in— shall accept the State adjusted levels of per- in the State plan core indicators of perform- formance established under paragraph (3) as ‘‘(A) rural areas; or ance for postsecondary career and technical ‘‘(B) areas with high percentages or high local adjusted levels of performance, or nego- education students that include, at a min- tiate with the State to reach agreement on numbers of career and technical education imum, measures of each of the following: students; new local adjusted levels of performance, for ‘‘(i) Student achievement on technical as- ‘‘(2) reserve funds, with the approval of each of the core indicators of performance sessments and attainment of career and participating eligible recipients, for— described in subparagraphs (A) and (B) of technical skill proficiencies that are aligned ‘‘(A) innovative statewide initiatives that paragraph (2) for career and technical edu- with nationally recognized industry stand- demonstrate benefits for eligible recipients, cation activities authorized under this title. ards, if available and appropriate. which may include— The levels of performance established under ‘‘(ii) Student attainment of technical skill ‘‘(i) developing and implementing tech- this subparagraph shall, at a minimum— proficiency, a credential, a certificate, or a nical assessments; ‘‘(I) be expressed in a percentage or numer- degree, or retention in postsecondary edu- ‘‘(ii) improving the professional develop- ical form, so as to be objective, quantifiable, cation, including transfer to a baccalaureate ment of career and technical education and measurable; and degree program. teachers, faculty, principals, and administra- ‘‘(II) require the eligible recipient to make tors; and ‘‘(iii) Placement in military service, ap- continuous and significant improvement in ‘‘(iii) establishing, enhancing, and sup- prenticeship programs, or employment. career and technical achievement of career porting systems for accountability data col- ‘‘(iv) Student participation in, and comple- and technical education students. ‘‘(ii) IDENTIFICATION IN THE LOCAL PLAN.— lection or reporting purposes; or tion of, career and technical education pro- Each eligible recipient shall identify, in the ‘‘(B) the development and implementation grams that lead to employment in nontradi- local plan submitted under section 134, levels of career pathways or career clusters; and tional fields. of performance for each of the core indica- ‘‘(3) carry out activities described in para- ‘‘(v) Increase in earnings, where avail- tors of performance for the first 2 program graphs (1) and (2).’’. able.’’; (iv) in subparagraph (C) (as redesignated by years covered by the local plan. SEC. 104. ACCOUNTABILITY. clause (ii) of this subparagraph), by striking ‘‘(iii) AGREEMENT ON LOCAL ADJUSTED LEV- Section 113 (20 U.S.C. 2323) is amended— ‘‘the title.’’ and inserting ‘‘this title, such as ELS OF PERFORMANCE FOR FIRST 2 YEARS.—The (1) by striking ‘‘vocational’’ each place the attainment of self-sufficiency.’’; eligible agency and each eligible recipient term appears and inserting ‘‘career’’; (v) in subparagraph (D) (as redesignated by shall reach agreement on the eligible recipi- (2) in subsection (a)— clause (ii) of this subparagraph), by inserting ent’s levels of performance for each of the (A) by striking ‘‘a State performance ac- ‘‘career and technical education’’ after ‘‘de- core indicators of performance for the first 2 countability system’’ and inserting ‘‘and veloped State’’; program years covered by the local plan, support State and local performance ac- (vi) in subparagraph (E) (as redesignated taking into account the levels identified in countability systems’’; and by clause (ii) of this subparagraph)— the local plan under clause (ii) and the fac- (B) by inserting ‘‘and its eligible recipi- (I) by striking ‘‘this paragraph’’ and insert- tors described in clause (v). The levels of per- ents’’ after ‘‘of the State’’; formance agreed to under this clause shall be ing ‘‘subparagraphs (A) and (B)’’; and (3) in subsection (b)— considered to be the local adjusted levels of (II) by striking ‘‘recipients.’’ and inserting (A) in paragraph (1)— performance for the eligible recipient for ‘‘recipients, and shall meet the requirements (i) in subparagraph (A), by striking ‘‘para- such years and shall be incorporated into the of this section.’’; and graph (2)(A)’’ and inserting ‘‘subparagraphs local plan prior to the approval of such plan. (vii) by adding at the end the following: (A) and (B) of paragraph (2)’’; and ‘‘(iv) AGREEMENT ON LOCAL ADJUSTED LEV- ‘‘(F) ALIGNMENT OF PERFORMANCE INDICA- (ii) in subparagraph (B), by striking ELS OF PERFORMANCE FOR SUBSEQUENT TORS.—In the course of identifying core indi- ‘‘(2)(B)’’ and inserting ‘‘(2)(C)’’; YEARS.—Prior to the third and fifth program (B) in paragraph (2)— cators of performance and additional indica- years covered by the local plan, the eligible (i) by striking subparagraph (A) and insert- tors of performance, States shall, to the agency and each eligible recipient shall ing the following: greatest extent possible, define the indica- reach agreement on the local adjusted levels ‘‘(A) CORE INDICATORS OF PERFORMANCE FOR tors so that substantially similar informa- of performance for each of the core indica- SECONDARY CAREER AND TECHNICAL EDUCATION tion gathered for other State and Federal tors of performance for the corresponding STUDENTS.—Each eligible agency shall iden- programs, or any other purpose, is used to subsequent program years covered by the tify in the State plan core indicators of per- meet the requirements of this section.’’; local plan, taking into account the factors formance for secondary career and technical (C) in paragraph (3)— described in clause (v). The local adjusted education students that include, at a min- (i) in the paragraph heading, by striking levels of performance agreed to under this imum, measures of each of the following: ‘‘LEVELS’’ and inserting ‘‘STATE LEVELS’’; clause shall be considered to be the local ad- ‘‘(i) Student achievement on technical as- (ii) in subparagraph (A)— justed levels of performance for the eligible sessments and attainment of career and (I) in clause (i)— recipient for such years and shall be incor- technical skill proficiencies that are aligned (aa) by striking ‘‘paragraph (2)(A)’’ and in- porated into the local plan. with nationally recognized industry stand- serting ‘‘subparagraphs (A) and (B) of para- ‘‘(v) FACTORS.—The agreement described in ards, if available and appropriate. graph (2)’’; clause (iii) or (iv) shall take into account— ‘‘(ii) Student attainment of challenging (bb) by inserting ‘‘after taking into ac- ‘‘(I) how the levels of performance involved academic content standards and student aca- count the local adjusted levels of perform- compare with the local adjusted levels of demic achievement standards, as adopted by ance and’’ after ‘‘eligible agency,’’; and performance established for other eligible re- the State under section 1111(b)(1) of the Ele- (cc) by striking subclause (II) and inserting cipients, taking into account factors includ- mentary and Secondary Education Act of the following: ing the characteristics of participants when 1965 and measured by the academic assess- ‘‘(II) require the eligible recipients to the participants entered the program and the ments described in section 1111(b)(3) of such make continuous and significant improve- services or instruction to be provided; and Act, consistent with State requirements. ment in career and technical achievement of ‘‘(II) the extent to which the local adjusted ‘‘(iii) Student rates of attainment of— career and technical education students, in- levels of performance involved promote con- ‘‘(I) a secondary school diploma; cluding special populations.’’; tinuous and significant improvement on the ‘‘(II) the recognized equivalent of a sec- (II) in clause (v)— core indicators of performance by the eligi- ondary school diploma; (aa) in the clause heading, by striking ble recipient. ‘‘(III) technical skill proficiency; ‘‘3RD, 4TH, AND 5TH’’ and inserting ‘‘SUBSE- ‘‘(vi) REVISIONS.—If unanticipated cir- ‘‘(IV) a credential; QUENT’’; cumstances arise with respect to an eligible

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recipient resulting in a significant change in ‘‘(C) INDEPENDENT ANALYSIS.—The advisory sortium of such institutions, organizations, the factor described in clause (v)(II), the eli- panel shall transmit to the Secretary and to or agencies, to establish a national research gible recipient may request that the local the relevant committees of Congress an inde- center’’; adjusted levels of performance agreed to pendent analysis of the findings and rec- (II) in clause (i)— under clause (iii) or (iv) be revised. The eligi- ommendations resulting from the assess- (aa) by inserting ‘‘and evaluation’’ after ble agency shall issue objective criteria and ment described in paragraph (3). ‘‘to carry out research’’; and methods for making such revisions. ‘‘(D) FACA.—The Federal Advisory Com- (bb) by inserting ‘‘, including special popu- ‘‘(B) LEVELS OF PERFORMANCE FOR ADDI- mittee Act (5 U.S.C. App.) shall not apply to lations,’’ after ‘‘participants’’; TIONAL INDICATORS.—Each eligible recipient the panel established under this paragraph.’’; (III) by redesignating clauses (ii), (iii), and may identify, in the local plan, local levels (B) in paragraph (3)— (iv), as clauses (iii), (iv), and (v), respec- of performance for any additional indicators (i) by striking subparagraph (A) and insert- tively; of performance described in paragraph (2)(C). ing the following: (IV) by inserting after clause (i) the fol- Such levels shall be considered to be the ‘‘(A) IN GENERAL.—From amounts made lowing: local levels of performance for purposes of available under subsection (d), the Secretary ‘‘(ii) to carry out research for the purpose this title. shall provide for the conduct of an inde- of developing, improving, and identifying the ‘‘(C) REPORT.—Each eligible recipient that pendent evaluation and assessment of career most successful methods for successfully ad- receives an allocation under section 131 shall and technical education programs under this dressing the needs of employers in high skill, publicly report, on an annual basis, its Act, including the implementation of the high wage business and industry, including progress in achieving the local adjusted lev- Carl D. Perkins Career and Technical Edu- evaluation and scientifically based research els of performance on the core indicators of cation Improvement Act of 2005, to the ex- of— performance.’’; and tent practicable, through studies and anal- ‘‘(I) collaboration between career and tech- (4) by striking subsection (c)(1)(B) and in- yses conducted independently through nical education programs and business and serting: grants, contracts, and cooperative agree- industry; ‘‘(B) information on the levels of perform- ments that are awarded on a competitive ‘‘(II) academic and technical skills re- ance achieved by the State with respect to basis.’’; the additional indicators of performance, in- (ii) in subparagraph (B)— quired to respond to the challenge of a global cluding the levels of performance (I) by striking clause (iii) and inserting the economy and rapid technological changes; disaggregated for postsecondary institutions, following: and by special populations, and for secondary in- ‘‘(iii) the preparation and qualifications of ‘‘(III) technical knowledge and skills re- stitutions, by special populations and by the teachers and faculty of career and technical quired to respond to needs of a regional or categories described in section 1111(h)(1)(C)(i) education, as well as shortages of such sectoral workforce, including small busi- of the Elementary and Secondary Education teachers and faculty;’’; ness;’’; Act of 1965, except that such disaggregation (II) by striking clause (v) and inserting the (V) in clause (iii) (as redesignated by sub- shall not be required in a case in which the following: clause (III) of this clause), by inserting ‘‘that number of individuals in a category is insuf- ‘‘(v) academic and career and technical are integrated with challenging academic in- ficient to yield statistically reliable infor- education achievement and employment out- struction’’ before ‘‘, including’’; and mation or the results would reveal person- comes of career and technical education stu- (VI) by striking clause (iv) (as redesignated ally identifiable information about an indi- dents, including analyses of— by subclause (III) of this clause) and insert- vidual.’’. ‘‘(I) the number of career and technical ing the following: SEC. 105. NATIONAL ACTIVITIES. education students and tech-prep students ‘‘(iv) to carry out scientifically based re- Section 114 (20 U.S.C. 2324) is amended— who meet the State adjusted levels of per- search, where appropriate, that can be used (1) by striking ‘‘vocational’’ each place the formance established under section 113; to improve preparation and professional de- term appears and inserting ‘‘career’’; ‘‘(II) the extent and success of integration velopment of teachers, faculty, principals, (2) in subsection (a)(1), by striking ‘‘, in- of challenging academic and career and tech- and administrators and student learning in cluding an analysis of performance data re- nical education for students participating in the career and technical education class- garding special populations’’ and inserting ‘‘, career and technical education programs; room, including— including an analysis of performance data ‘‘(III) the extent to which career and tech- ‘‘(I) effective in-service and pre-service that is disaggregated for postsecondary in- nical education programs prepare students, teacher and faculty education that assists stitutions, by special populations, and for including special populations, for subsequent career and technical education programs in— secondary institutions, by special popu- employment in high skill, high wage occupa- ‘‘(aa) integrating those programs with aca- lations and by the categories described in tions, or participation in postsecondary edu- demic content standards and student aca- section 1111(h)(1)(C)(i) of the Elementary and cation; and demic achievement standards, as adopted by Secondary Education Act of 1965, except that ‘‘(IV) the number of career and technical States under section 1111(b)(1) of the Elemen- such disaggregation shall not be required in education students receiving a high school tary and Secondary Education Act of 1965; a case in which the number of individuals in diploma;’’; and a category is insufficient to yield statis- (III) in clause (vi), by inserting ‘‘, and ca- ‘‘(bb) promoting technical education tically reliable information or the results reer and technical education students’ prepa- aligned with industry-based standards and would reveal personally identifiable informa- ration for employment’’ after ‘‘programs’’; certifications to meet regional industry tion about an individual’’; and needs; (3) in subsection (c)— (IV) in clause (viii), by inserting ‘‘and ‘‘(II) dissemination and training activities (A) by striking paragraph (2) and inserting local’’ after ‘‘State’’ both places such term related to the applied research and dem- the following: appears; and onstration activities described in this sub- ‘‘(2) INDEPENDENT ADVISORY PANEL.— (iii) in subparagraph (C)— section, which may also include serving as a ‘‘(A) IN GENERAL.—The Secretary shall ap- (I) in clause (i)— repository for information on career and point an independent advisory panel to ad- (aa) by striking ‘‘Committee on Edu- technical education skills, State academic vise the Secretary on the implementation of cation’’ and all that follows through ‘‘Sen- standards, and related materials; and the assessment described in paragraph (3), ate’’ and inserting ‘‘relevant committees of ‘‘(III) the recruitment and retention of ca- including the issues to be addressed and the Congress’’; and reer and technical education teachers, fac- methodology of the studies involved to en- (bb) by striking ‘‘2002’’ both places it ap- ulty, counselors, principals, and administra- sure that the assessment adheres to the pears and inserting ‘‘2009’’; and tors, including individuals in groups under- highest standards of quality. (II) in clause (ii), by striking ‘‘Committee represented in the teaching profession; and’’; ‘‘(B) MEMBERS.—The advisory panel shall on Education’’ and all that follows through (ii) in subparagraph (B)— consist of— ‘‘Senate’’ and inserting ‘‘relevant commit- (I) by striking ‘‘or centers’’ both places the ‘‘(i) educators, principals, and administra- tees of Congress’’; term appears; and tors (including State directors of career and (C) in paragraph (4)(B), by striking ‘‘Com- (II) by striking ‘‘Committee on Education’’ technical education), with expertise in the mittee on Education’’ and all that follows and all that follows through ‘‘Senate’’ and integration of academic and career and tech- through ‘‘Senate’’ and inserting ‘‘relevant inserting ‘‘relevant committees of Con- nical education; committees of Congress’’; gress’’; ‘‘(ii) experts in evaluation, research, and (D) in paragraph (5)— (iii) in subparagraph (C), by striking ‘‘or assessment; (i) in subparagraph (A)— centers’’; and ‘‘(iii) representatives of labor organiza- (I) in the matter preceding clause (i), by (iv) by adding at the end the following: tions and businesses, including small busi- striking ‘‘higher education’’ and all that fol- ‘‘(D) INDEPENDENT GOVERNING BOARD.— nesses; lows through ‘‘centers’’ and inserting ‘‘high- ‘‘(i) IN GENERAL.—An institution of higher ‘‘(iv) parents; er education offering comprehensive grad- education that desires a grant, contract, or ‘‘(v) career guidance and academic coun- uate programs in career and technical edu- cooperative agreement under this paragraph seling professionals; and cation that shall be the primary recipient shall identify, in its application, an inde- ‘‘(vi) other individuals and intermediaries and shall collaborate with a public or private pendent governing board for the center es- with relevant expertise. nonprofit organization or agency, or a con- tablished pursuant to this paragraph.

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‘‘(ii) MEMBERS.—The independent gov- (C) in paragraph (3)(C), by striking ‘‘begin- ‘‘(2) CONTENTS.—Each application sub- erning board shall consist of the following: ning’’ and all that follows through the period mitted under paragraph (1) shall include— ‘‘(I) Two representatives of secondary ca- and inserting ‘‘beginning on the date of en- ‘‘(A) a description of how the State entity reer and technical education. actment of the Carl D. Perkins Career and designated in subsection (c) will provide in- ‘‘(II) Two representatives of postsecondary Technical Education Improvement Act of formation based on labor market trends to career and technical education. 2005.’’; inform program development; and ‘‘(III) Two representatives of eligible agen- (4) by redesignating subsections (h) and (i) ‘‘(B) information about the academic con- cies. as subsections (i) and (j), respectively; tent standards and student academic ‘‘(IV) Two representatives of business and (5) by inserting after subsection (g) the fol- achievement standards adopted by the State industry. lowing: under section 1111(b)(1) of the Elementary ‘‘(V) Two representatives of career and ‘‘(h) APPEALS.— and Secondary Education Act of 1965.’’; technical teacher preparation institutions. ‘‘(1) IN GENERAL.—Subject to paragraph (2), (4) in subsection (c) (as redesignated by ‘‘(VI) Two nationally recognized research- the Secretary shall provide a tribally con- paragraph (2) of this section)— ers in the field of career and technical edu- trolled postsecondary career and technical (A) in paragraph (1), by striking ‘‘individ- cation. institution with a hearing on the record be- uals’’ and all that follows through the semi- ‘‘(iii) COORDINATION.—The independent gov- fore an administrative law judge with re- colon and inserting ‘‘students and parents, erning board shall ensure that the research spect to the following determinations: including postsecondary education and train- and dissemination activities carried out by ‘‘(A) A determination that such institution ing, including preparation for high skill, the center are coordinated with the research is not eligible for a grant under this section. high wage, or high demand occupations and activities carried out by the Secretary.’’; ‘‘(B) A determination regarding the cal- nontraditional fields in emerging or estab- (E) in paragraph (6)(B)(ii), by striking ‘‘or culation of the amount of a grant awarded lished professions;’’; centers’’; and under this section. (B) in paragraph (2), by inserting ‘‘aca- (F) by striking paragraph (8); and ‘‘(2) PROCEDURE FOR APPEAL.—To appeal a demic and career and technical’’ after ‘‘re- (4) by adding at the end the following: determination described in paragraph (1), a late’’; ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.— tribally controlled postsecondary career and (C) by striking paragraph (3) and inserting There are authorized to be appropriated to technical institution shall— the following: carry out this section such sums as may be ‘‘(A) in the case of an appeal based on a de- ‘‘(3) to equip teachers, faculty, administra- necessary for each of fiscal years 2006 termination that such institution is not eli- tors, and counselors with the knowledge, through 2011.’’. gible for a grant under this section, file a no- skills, and occupational information needed SEC. 106. ASSISTANCE FOR THE OUTLYING tice of appeal with the Secretary not later to assist parents and all students, especially AREAS. than 30 days after receipt of such determina- special populations underrepresented in cer- Section 115 (20 U.S.C. 2325) is amended— tion; and tain careers, with career exploration, edu- (1) by striking ‘‘vocational’’ each place the ‘‘(B) in the case of an appeal based on a de- cational opportunities, education financing, term appears and inserting ‘‘career’’; termination regarding the calculation of the and exposure to high skill, high wage, or (2) in subsection (b)— amount of a grant awarded under this sec- high demand occupations and nontraditional (A) in the matter preceding paragraph (1), tion— fields;’’; by striking ‘‘the Republic of the Marshall Is- ‘‘(i) file a notice of appeal with the Sec- (D) in paragraph (4), by striking ‘‘such en- lands, the Federated States of Micronesia,’’; retary not later than 30 days after receipt of tities;’’ and inserting ‘‘such entities, with an (B) in paragraph (1), by striking ‘‘training the Secretary’s notification of the grant emphasis on high skill, high wage, or high and retraining;’’ and inserting ‘‘prepara- amount; and demand occupations in emerging or estab- tion;’’; ‘‘(ii) identify the amount of funding that lished professions;’’; (C) by redesignating paragraphs (2) and (3) gives rise to such appeal. (E) in paragraph (5), by striking ‘‘and’’ as paragraphs (3) and (4), respectively; and ‘‘(3) WITHHOLDING OF AMOUNT.—If a tribally after the semicolon; (D) by inserting after paragraph (1) the fol- controlled postsecondary career and tech- (F) in paragraph (6), by striking the period lowing: nical institution appeals a determination de- and inserting ‘‘; and’’; and ‘‘(2) professional development for teachers, scribed in paragraph (1), the Secretary shall (G) by adding at the end the following: faculty, principals, and administrators;’’; withhold the amount in dispute from the ‘‘(7) to provide information, if available, and award of grant funds under this section until for each occupation, on— (3) in subsection (d)— such time as the administrative law judge ‘‘(A) the average earnings of an individual (A) by striking ‘‘the Republic of the Mar- has issued a written decision on the appeal.’’; in the occupation at entry level and after 5 shall Islands, the Federated States of Micro- and years of employment; nesia, and’’; and (6) by striking subsection (j) (as redesig- ‘‘(B) the expected lifetime earnings; and (B) by striking ‘‘2001’’ and inserting ‘‘2007’’. nated by paragraph (4) of this section) and ‘‘(C) the expected future demand for the oc- SEC. 107. NATIVE AMERICAN PROGRAM. inserting the following: cupation, based on employment projec- Section 116 (20 U.S.C. 2326) is amended— ‘‘(j) AUTHORIZATION OF APPROPRIATIONS.— tions.’’; (1) by striking ‘‘vocational’’ each place the There are authorized to be appropriated to (5) in subsection (d)(1) (as redesignated by term appears and inserting ‘‘career’’; carry out this section $10,000,000 for fiscal paragraph (2) of this section), by striking (2) in subsection (a)(5), by adding a period year 2006 and such sums as may be necessary ‘‘(b)’’ both places it appears and inserting at the end; for each of the 5 succeeding fiscal years.’’. ‘‘(c)’’; (3) in subsection (b)— (6) in subsection (e)(1) (as redesignated by (A) in paragraph (1), by striking ‘‘(d)’’ and SEC. 109. OCCUPATIONAL AND EMPLOYMENT IN- paragraph (2) of this section), by striking inserting ‘‘(c)’’; and FORMATION. ‘‘(b)’’ and inserting ‘‘(c)’’; (B) in paragraph (2), by striking ‘‘(other Section 118 (20 U.S.C. 2328) is amended— (7) in subsection (f)(1) (as redesignated by than in subsection (i))’’; (1) in subsection (a)— paragraph (2) of this section), by striking (4) in subsection (d), by striking ‘‘section (A) in the matter preceding paragraph (1), ‘‘an identification’’ and inserting ‘‘a descrip- an’’ and inserting ‘‘section, an’’; by striking ‘‘(f)’’ and inserting ‘‘(g)’’; tion’’; and (5) in subsection (e), by striking ‘‘para- (B) in paragraph (1)— (8) in subsection (g) (as redesignated by graph’’ and inserting ‘‘section’’; and (i) in subparagraph (A), by striking ‘‘(b)’’ paragraph (2) of this section), by striking (6) in subsection (h), by striking ‘‘which both places it appears and inserting ‘‘(c)’’; ‘‘1999 through 2003’’ and inserting ‘‘2006 are recognized by the Governor of the State (ii) in subparagraph (B), by striking ‘‘(b)’’ through 2011’’. of Hawaii’’. and inserting ‘‘(c)’’; and SEC. 110. STATE ADMINISTRATION. SEC. 108. TRIBALLY CONTROLLED POSTSEC- (iii) in subparagraph (C), by striking ‘‘(b)’’ ONDARY CAREER AND TECHNICAL and inserting ‘‘(c)’’; and Section 121 (20 U.S.C. 2341) is amended— INSTITUTIONS. (C) in paragraph (2), by striking ‘‘(b)’’ both (1) by redesignating subsection (a)(2) as Section 117 (20 U.S.C. 2327) is amended— places it appears and inserting ‘‘(c)’’; subsection (b) and indenting appropriately; (1) by striking the section heading and in- (2) by redesignating subsections (b) (2) by redesignating subparagraphs (A) serting the following: through (f) as subsections (c) through (g), re- through (D) of subsection (a)(1) as para- ‘‘SEC. 117. TRIBALLY CONTROLLED POSTSEC- spectively; graphs (1) through (4), respectively, and in- ONDARY CAREER AND TECHNICAL (3) by inserting after subsection (a) the fol- denting appropriately; INSTITUTIONS.’’; lowing: (3) by redesignating clauses (i) and (ii) of (2) by striking ‘‘vocational’’ each place the ‘‘(b) STATE APPLICATION.— paragraph (4) (as redesignated by paragraph term appears and inserting ‘‘career’’; ‘‘(1) IN GENERAL.—Each State desiring as- (2) of this section) as subparagraphs (A) and (3) in subsection (g)— sistance under this section shall submit an (B), respectively, and indenting appro- (A) in paragraph (1), by striking ‘‘The Sec- application to the Secretary at the same priately; retary’’ and inserting ‘‘On an annual basis, time the State submits its State plan under (4) by striking the following: the Secretary’’; section 122, in such manner, and accom- ‘‘(a) ELIGIBLE AGENCY RESPONSIBILITIES.— (B) in paragraph (2)(B), by striking ‘‘2000’’ panied by such additional information, as ‘‘(1) IN GENERAL.—The responsibilities’’ and and inserting ‘‘2007’’; and the Secretary may reasonably require. inserting the following:

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‘‘(a) ELIGIBLE AGENCY RESPONSIBILITIES.— ‘‘(C) the criteria that will be used by the ulty, counselors, principals, and administra- The responsibilities’’; eligible agency to approve eligible recipients tors, including individuals in groups under- (5) in subsection (a)(1) (as redesignated by for funds under this title, including criteria represented in the teaching profession; and paragraph (2) of this section), by striking to assess the extent to which the local plan ‘‘(B) the transition to teaching from busi- ‘‘training and employment’’ and inserting will— ness and industry, including small business; ‘‘fields’’; ‘‘(i) promote higher levels of academic ‘‘(4) describes efforts to improve the capac- (6) in subsection (a)(2) (as redesignated by achievement; ity of programs and faculty at postsecondary paragraph (2) of this section)— ‘‘(ii) promote higher levels of technical institutions to effectively prepare career and (A) by inserting ‘‘teacher and faculty prep- skill attainment; and technical education personnel, including, as aration programs,’’ after ‘‘teachers,’’; and ‘‘(iii) identify and address workforce needs; appropriate, through electronically delivered (B) by inserting ‘‘all types and sizes of’’ ‘‘(D) how programs at the secondary level distance education, and articulation agree- after ‘‘representatives of’’; and will prepare career and technical education ments between 2-year technical programs (7) in subsection (b) (as redesignated by students, including special populations to and postsecondary education programs; paragraph (1) of this section), by striking graduate from high school with a diploma; ‘‘(5) describes how the eligible agency will ‘‘paragraph (1)’’ and inserting ‘‘subsection ‘‘(E) how such programs will prepare career actively involve parents, academic and ca- (a)’’. and technical education students, including reer and technical education teachers, fac- SEC. 111. STATE PLAN. special populations, both academically and ulty, principals, and administrators, career Section 122 (20 U.S.C. 2342) is amended— technically, for opportunities in postsec- guidance and academic counselors, local ondary education or entry into high skill, (1) by striking ‘‘vocational’’ each place the businesses (including small- and medium- high wage, or high demand occupations in term appears and inserting ‘‘career’’; sized businesses and business inter- (2) in subsection (a)— emerging or established occupations, and mediaries), and labor organizations in the (A) in paragraph (1)— how participating students will be made planning, development, implementation, and (i) by striking ‘‘5’’ and inserting ‘‘6’’; and aware of such opportunities; and evaluation of such career and technical edu- (ii) by adding at the end the following: ‘‘(F) how funds will be used to improve or cation programs; ‘‘Each eligible agency may submit a transi- develop new career and technical education ‘‘(6) describes how funds received by the el- tion plan during the first full year of imple- courses in high skill, high wage, or high de- igible agency through the allotment made mentation of this Act after the date of en- mand occupations that are aligned with busi- under section 111 will be allocated— actment of the Carl D. Perkins Career and ness needs and industry standards, as appro- ‘‘(A) among secondary school career and Technical Education Improvement Act of priate— technical education, or postsecondary and 2005. The transition plan shall fulfill the eli- ‘‘(i) at the secondary level that are aligned gible agency’s State plan submission obliga- with challenging academic content stand- adult career and technical education, or tion under this section.’’; and ards and student academic achievement both, including the rationale for such alloca- (B) in paragraph (2)(B), by striking ‘‘5 year standards adopted by the State under section tion; and State plan’’ and inserting ‘‘6-year period’’; 1111(b)(1) of the Elementary and Secondary ‘‘(B) among any consortia that will be (3) by striking subsection (b)(1) and insert- Education Act of 1965; and formed among secondary schools and eligible ing the following: ‘‘(ii) at the postsecondary level that are institutions, and how funds will be allocated ‘‘(1) IN GENERAL.—The eligible agency shall relevant and challenging; among the members of the consortia, includ- develop the State plan in consultation with ‘‘(2) describes how career and technical ing the rationale for such allocation; academic and career and technical education education teachers, faculty, principals, ad- ‘‘(7) describes how the eligible agency teachers, faculty, principals, and administra- ministrators, and career guidance and aca- will— tors, career guidance and academic coun- demic counselors will be provided com- ‘‘(A) use funds to improve or develop new selors, eligible recipients, parents, students, prehensive initial preparation and profes- career and technical education courses in the State tech-prep coordinator and rep- sional development, including through pro- high skill, high wage, or high demand occu- resentatives of tech-prep consortia (if appli- grams and activities that— pations— cable), interested community members (in- ‘‘(A) promote the integration of chal- ‘‘(i) at the secondary level that are aligned cluding parent and community organiza- lenging academic and career and technical with challenging academic content stand- tions), representatives of special popu- education curriculum development, includ- ards and student academic achievement lations, representatives of business (includ- ing opportunities for teachers to jointly de- standards adopted by the State under section ing small business) and industry, and rep- velop and implement curriculum and peda- 1111(b)(1) of the Elementary and Secondary resentatives of labor organizations in the gogical strategies with appropriate academic Education Act of 1965; and State, and shall consult the Governor of the teachers; ‘‘(ii) at the postsecondary level that are State with respect to such development.’’; ‘‘(B) increase the academic and career and challenging and aligned with business needs (4) by striking subsection (c) and inserting technical education knowledge of career and and industry standards, as appropriate; the following: technical education teachers and faculty; ‘‘(B) improve the academic and technical ‘‘(c) PLAN CONTENTS.—The State plan shall ‘‘(C) are high-quality, sustained, intensive, skills of students participating in career and include information that— focused on instruction, directly related to in- technical education programs, including ‘‘(1) describes the career and technical edu- dustry standards, and includes structured in- strengthening the academic, and career and cation activities to be assisted that are de- duction and mentoring components for new technical, components of career and tech- signed to meet or exceed the State adjusted personnel, with an emphasis on identifying nical education programs through the inte- levels of performance, including a descrip- and addressing the needs of local businesses, gration of academics with career and tech- tion of— including small businesses; nical education to ensure learning in the ‘‘(A) how the eligible agency will support ‘‘(D) ensure an increasing number of career core academic subjects and career and tech- eligible recipients in developing or imple- and technical education teachers and faculty nical education subjects, and provide stu- menting career pathways for career and meet teacher certification and licensing re- dents with strong experience in, and under- technical education content areas that are quirements reflecting the needs of their sub- standing of, all aspects of an industry; designed to meet relevant workforce needs, ject area or areas; ‘‘(C) ensure that students who participate including how the eligible agency will— ‘‘(E) equip them with the knowledge and in such career and technical education pro- ‘‘(i) support eligible recipients in devel- skills needed to work with and improve in- grams are taught to the same challenging oping articulation agreements between sec- struction for special populations; academic proficiencies as are taught to all ondary and postsecondary institutions; ‘‘(F) assist in accessing and utilizing data, other students; and ‘‘(ii) support eligible recipients in using including labor market indicators, student ‘‘(D) encourage secondary school students labor market information to identify career achievement, and assessments; who participate in such career and technical pathways that prepare individuals for high ‘‘(G) enhance the leadership capacity of education programs to enroll in challenging skill, high wage, or high demand occupa- principals and administrators; courses in core academic subjects; tions; ‘‘(H) are integrated with professional de- ‘‘(8) describes how the eligible agency will ‘‘(iii) make available information about ca- velopment activities that the State carries annually evaluate the effectiveness of such reer pathways offered by eligible recipients; out under title II of the Elementary and Sec- career and technical education programs, and ondary Education Act of 1965 and title II of and describes, to the extent practicable, how ‘‘(iv) consult with business and industry the Higher Education Act of 1965; and the eligible agency is coordinating such pro- and use industry-recognized standards and ‘‘(I) include strategies to expose all career grams to promote relevant lifelong learning assessments, if appropriate; and technical education students to com- and ensure nonduplication with other exist- ‘‘(B) the secondary and postsecondary ca- prehensive information regarding career op- ing Federal programs; reer and technical education programs to be tions that lead to high skill, high wage, or ‘‘(9) describes the eligible agency’s pro- carried out, including programs that will be high demand occupations and nontraditional gram strategies for special populations, in- carried out by the eligible agency to develop, fields; cluding a description of how individuals who improve, and expand access to quality tech- ‘‘(3) describes efforts to improve— are members of the special populations— nology in career and technical education ‘‘(A) the recruitment and retention of ca- ‘‘(A) will be provided with equal access to programs; reer and technical education teachers, fac- activities assisted under this title;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00081 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S762 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(B) will not be discriminated against on ‘‘(19) describes how funds will be used to tional or uncontrollable circumstances such the basis of their status as members of the promote preparation for high skill, high as a natural disaster or a precipitous and un- special populations; and wage, or high demand occupations and non- foreseen decline in financial resources of the ‘‘(C) will be provided with programs de- traditional fields in emerging and estab- State. signed to enable the special populations to lished professions; ‘‘(4) FUNDS RESULTING FROM REDUCED AL- meet or exceed State adjusted levels of per- ‘‘(20) describes how funds will be used to LOTMENTS.— formance, and prepare special populations serve individuals in State correctional insti- ‘‘(A) IN GENERAL.—The Secretary shall use for further learning and for high skill, high tutions; funds withheld under paragraph (3) for a wage, or high demand occupations; ‘‘(21) describes how the eligible agency will State served by an eligible agency, to pro- ‘‘(10) how the eligible agency will collabo- ensure that the data reported to the eligible vide (through alternative arrangements) rate in developing the State plan with— agency from local educational agencies and services and activities within the State to ‘‘(A) the entity within the State with re- eligible institutions under this title and the meet the purposes of this Act. sponsibility for elementary and secondary data the eligible agency reports to the Sec- ‘‘(B) REDISTRIBUTION.—If the Secretary education; retary are complete, accurate, and reliable; cannot satisfactorily use funds withheld ‘‘(B) the entity within the State with re- and under paragraph (3), then the amount of sponsibility for public institutions engaged ‘‘(22) contains the description and informa- funds retained by the Secretary as a result of in postsecondary education; tion specified in sections 112(b)(8) and 121(c) a reduction in an allotment made under ‘‘(C) State institutions such as State cor- of the Workforce Investment Act of 1998 (29 paragraph (3) shall be redistributed to other rectional institutions and institutions that U.S.C. 2822(b)(8) and 2841(c)) concerning the eligible agencies in accordance with section serve individuals with disabilities; and provision of services only for postsecondary 111. ‘‘(D) all other relevant State agencies with students and school dropouts.’’; ‘‘(b) LOCAL PROGRAM IMPROVEMENT.— responsibility for career and technical edu- (5) by striking subsection (d) and inserting ‘‘(1) LOCAL EVALUATION.—Each eligible cation and training and workforce develop- the following: agency shall evaluate annually, using the ment; ‘‘(d) PLAN OPTIONS.— local adjusted levels of performance de- ‘‘(11) describes what steps the eligible ‘‘(1) SINGLE PLAN.—The eligible agency scribed in section 113(b)(4), the career and agency will take to involve representatives may fulfill the plan or application submis- of eligible recipients in the development of technical education activities of each eligi- sion requirements of this section, section ble recipient receiving funds under this title. the State adjusted levels of performance; 118(b), and section 141(c) by submitting a sin- ‘‘(12) provides assurances that the eligible ‘‘(2) PLAN.— gle State plan. In such plan, the eligible ‘‘(A) IN GENERAL.—If, after reviewing the agency will comply with the requirements of agency may allow eligible recipients to ful- this title and the provisions of the State evaluation, the eligible agency determines fill the plan or application submission re- that an eligible recipient is not making sub- plan, including the provision of a financial quirements of section 134 and subsections (a) audit of funds received under this title which stantial progress in achieving the local ad- and (b) of section 143 by submitting a single justed levels of performance, the eligible may be included as part of an audit of other local plan. Federal or State programs; agency shall— ‘‘(2) PLAN SUBMITTED AS PART OF 501 PLAN.— ‘‘(i) conduct an assessment of the edu- ‘‘(13) provides assurances that none of the The eligible agency may submit the plan re- funds expended under this title will be used cational needs that the eligible recipient quired under this section as part of the plan shall address to overcome local performance to acquire equipment (including computer submitted under section 501 of the Workforce software) in any instance in which such ac- deficiencies, including the performance of Investment Act of 1998 (20 U.S.C. 9271), pro- special populations; quisition results in a direct financial benefit vided that the plan submitted pursuant to to any organization representing the inter- ‘‘(ii) enter into an improvement plan with the requirement of this section meets the re- ests of the purchasing entity, the employees an eligible recipient based on the results of quirements of this Act.’’; and of the purchasing entity, or any affiliate of the assessment, for the first program year (6) by striking subsection (f). such an organization; succeeding the program year in which the el- ‘‘(14) describes how the eligible agency will SEC. 112. IMPROVEMENT PLANS. igible recipient failed to meet the local ad- measure and report data relating to students Section 123 (20 U.S.C. 2343) is amended to justed levels of performance, which plan participating in and completing career and read as follows: shall demonstrate how the local performance technical education within specific career ‘‘SEC. 123. IMPROVEMENT PLANS. deficiencies will be corrected and include in- clusters in order to adequately measure the ‘‘(a) STATE PROGRAM IMPROVEMENT PLAN.— structional and other programmatic innova- progress of the students, including special ‘‘(1) PLAN.—If a State fails to meet the tions of demonstrated effectiveness, and, populations, at— State adjusted levels of performance de- where necessary, strategies for appropriate ‘‘(A) the secondary level, disaggregated by scribed in the report submitted under section staffing and professional development; and the categories described in section 113(c), the eligible agency shall develop and ‘‘(iii) conduct regular evaluations of the 1111(h)(1)(C)(i) of the Elementary and Sec- implement a program improvement plan in progress being made toward reaching the ondary Education Act of 1965, except that consultation with the appropriate agencies, local adjusted levels of performance, as de- such disaggregation shall not be required in individuals, and organizations for the first scribed in section 113(b)(4), and progress on a case in which the number of individuals in program year succeeding the program year implementing the improvement plan. a category is insufficient to yield statis- in which the eligible agency failed to meet ‘‘(B) CONSULTATION.—The eligible agency tically reliable information or the results the State adjusted levels of performance, in shall conduct the activities described in sub- would reveal personally identifiable informa- order to avoid a sanction under paragraph paragraph (A) in consultation with teachers, tion about an individual; and (3). principals, administrators, faculty, parents, ‘‘(B) the postsecondary level, ‘‘(2) TECHNICAL ASSISTANCE.—If the Sec- other school staff, appropriate agencies, and disaggregated by special populations and the retary determines that an eligible agency is other appropriate individuals and organiza- categories described in section 1111(h)(1)(C)(i) not properly implementing the eligible agen- tions. of the Elementary and Secondary Education cy’s responsibilities under section 122, or is ‘‘(3) TECHNICAL ASSISTANCE.—If the eligible Act of 1965, except that such disaggregation not making substantial progress in meeting agency determines that an eligible recipient shall not be required in a case in which the the purpose of this Act, based on the State’s is not properly implementing the eligible re- number of individuals in a category is insuf- adjusted levels of performance, the Sec- cipient’s responsibilities under section 134, ficient to yield statistically reliable infor- retary shall work with the eligible agency to or is not making substantial progress in mation or the results would reveal person- implement improvement activities con- meeting the purpose of this Act, based on the ally identifiable information about an indi- sistent with the requirements of this Act. local adjusted levels of performance, the eli- vidual; ‘‘(3) FAILURE.— gible agency shall provide technical assist- ‘‘(15) describes how the eligible agency will ‘‘(A) IN GENERAL.—If an eligible agency ance to the eligible recipient to assist the el- adequately address the needs of students in fails to meet the State adjusted levels of per- igible recipient in carrying out the improve- alternative education programs, if appro- formance, has not implemented an improve- ment activities consistent with the require- priate; ment plan as described in paragraph (1), has ments of this Act. An eligible recipient, in ‘‘(16) describes how the eligible agency will shown no improvement within 1 year after collaboration with the eligible agency, may provide local educational agencies, area ca- implementing an improvement plan as de- request that the Secretary provide addi- reer and technical education schools, and eli- scribed in paragraph (1), or has failed to tional technical assistance. gible institutions in the State with technical meet the State adjusted levels of perform- ‘‘(4) FAILURE.— assistance; ance for 2 or more consecutive years, the ‘‘(A) IN GENERAL.—If an eligible recipient ‘‘(17) describes how career and technical Secretary may, after notice and opportunity fails to meet the local adjusted levels of per- education relates to State and regional occu- for a hearing, withhold from the eligible formance as described in section 113(b)(4) and pational opportunities; agency all, or a portion of, the eligible agen- has not implemented an improvement plan ‘‘(18) describes the methods proposed for cy’s allotment under this title. as described in paragraph (2), has shown no the joint planning and coordination of pro- ‘‘(B) WAIVER FOR EXCEPTIONAL CIR- improvement within 1 year after imple- grams carried out under this title with other CUMSTANCES.—The Secretary may waive the menting an improvement plan as described Federal education programs; sanction in subparagraph (A) due to excep- in paragraph (2), or has failed to meet more

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00082 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S763 than 1 of the local adjusted levels of perform- ‘‘(iii) develop a higher level of academic ‘‘(10) providing career and technical edu- ance for 2 or more consecutive years, the eli- and industry knowledge and skills in career cation programs for adults and school drop- gible agency may, after notice and oppor- and technical education; and outs to complete their secondary school edu- tunity for a hearing, withhold from the eligi- ‘‘(D) are integrated with the teacher cer- cation; ble recipient all, or a portion of, the eligible tification or licensing and professional devel- ‘‘(11) providing assistance to individuals, recipient’s allotment under this title. opment activities that the State carries out who have participated in services and activi- ‘‘(B) WAIVER FOR EXCEPTIONAL CIR- under title II of the Elementary and Sec- ties under this title, in finding an appro- CUMSTANCES.—The eligible agency may waive ondary Education Act of 1965 and title II of priate job and continuing their education or the sanction under this paragraph due to ex- the Higher Education Act of 1965;’’; training through collaboration with the ceptional or uncontrollable circumstances (D) in paragraph (4), by striking ‘‘support workforce investment system established such as organizational structure, or a nat- for’’ and inserting ‘‘supporting’’; under the Workforce Investment Act of 1998 ural disaster or a precipitous and unforeseen (E) in paragraph (5), by striking ‘‘nontradi- (29 U.S.C. 2801 et seq.); decline in financial resources of the eligible tional training and employment’’ and insert- ‘‘(12) developing valid and reliable assess- recipient. ing ‘‘nontraditional fields in emerging and ments of technical skills that are integrated ‘‘(5) FUNDS RESULTING FROM REDUCED AL- established professions, and other activities with industry certification assessments that expose students, including special popu- where available; LOTMENTS.—The eligible agency shall use funds withheld under paragraph (4) to pro- lations, to high skill, high wage occupa- ‘‘(13) developing and enhancing data sys- vide (through alternative arrangements) tions’’; tems to collect and analyze data on sec- services and activities to students within the (F) in paragraph (6)— ondary and postsecondary academic and em- area served by such recipient to meet the (i) by inserting ‘‘intermediaries,’’ after ployment outcomes; ‘‘labor organizations,’’; and ‘‘(14) improving— purpose of this Act.’’. (ii) by inserting ‘‘, or complete career path- ‘‘(A) the recruitment and retention of ca- SEC. 113. STATE LEADERSHIP ACTIVITIES. ways, as described in section 122(c)(1)(A)’’ reer and technical education teachers, fac- after ‘‘skills’’; ulty, principals, administrators, and career Section 124 (20 U.S.C. 2344) is amended— (G) in paragraph (7), by striking ‘‘and’’ guidance and academic counselors, including (1) by striking ‘‘vocational’’ each place the after the semicolon; individuals in groups underrepresented in term appears and inserting ‘‘career’’; (H) in paragraph (8), by striking ‘‘wage ca- the teaching profession; and (2) in subsection (a), by striking ‘‘112(a)(2)’’ reers.’’ and inserting ‘‘wage, or high demand ‘‘(B) the transition to teaching from busi- and inserting ‘‘112(a)(2)(A)’’; occupations; and’’; and ness and industry, including small business; (3) in subsection (b)— (I) by adding at the end the following: and (A) in paragraph (1), by striking ‘‘further ‘‘(9) technical assistance for eligible recipi- ‘‘(15) adopting, calculating, or commis- learning’’ and all that follows through the ents.’’; sioning a self-sufficiency standard.’’; and semicolon and inserting ‘‘further education, (4) by striking subsection (c) and inserting (5) in subsection (d), by striking ‘‘112(a)(2)’’ further training, or for high skill, high wage, the following: and inserting ‘‘112(a)(2)(A)’’. or high demand occupations;’’; ‘‘(c) PERMISSIBLE USES OF FUNDS.—The SEC. 114. DISTRIBUTION OF FUNDS TO SEC- (B) in paragraph (2), by striking subpara- leadership activities described in subsection ONDARY SCHOOL PROGRAMS. graphs (A) through (C) and inserting the fol- (a) may include— Section 131 (20 U.S.C. 2351) is amended— lowing: ‘‘(1) improvement of career guidance and (1) by striking ‘‘vocational’’ each place the ‘‘(A) training of career and technical edu- academic counseling programs that assist term appears and inserting ‘‘career’’; cation teachers, faculty, principals, career students in making informed academic, and (2) by striking subsection (a); guidance and academic counselors, and ad- career and technical education, decisions, in- (3) by redesignating subsections (b) ministrators to use technology, including cluding encouraging secondary and postsec- through (i) as subsections (a) through (h), re- distance learning; ondary students to graduate with a diploma spectively; ‘‘(B) encouraging schools to work with or degree, and expose students to high skill, (4) in subsection (a) (as redesignated by technology industries to offer voluntary in- high wage occupations and nontraditional paragraph (3) of this section)— ternships and mentoring programs; or fields in emerging and established profes- (A) in the subsection heading, by striking ‘‘(C) encouraging lifelong learning, includ- sions; ‘‘SPECIAL DISTRIBUTION RULES FOR SUC- ing through partnerships that may involve ‘‘(2) establishment of agreements, includ- CEEDING FISCAL YEARS’’ and inserting ‘‘DIS- institutions of higher education, organiza- ing articulation agreements, between sec- TRIBUTION RULES’’; and tions providing career and technical edu- ondary and postsecondary career and tech- (B) by striking ‘‘for fiscal year 2000 and cation, businesses, and communications en- nical education programs in order to provide succeeding fiscal years’’; tities;’’; postsecondary education and training oppor- (5) in subsection (b) (as redesignated by (C) by striking paragraph (3) and inserting tunities for students participating in such paragraph (3) of this section)— the following: career and technical education programs, (A) by striking ‘‘subsection (b)’’ and insert- ‘‘(3) professional development programs, such as tech-prep programs; ing ‘‘subsection (a)’’; and including providing comprehensive profes- ‘‘(3) support for career and technical stu- (B) in paragraph (1), by striking ‘‘9902(2))’’ sional development (including initial teacher dent organizations, especially with respect and inserting ‘‘9902(2)))’’; preparation) for career and technical edu- to efforts to increase the participation of (6) in subsection (e) (as redesignated by cation teachers, faculty, principals, adminis- students who are members of special popu- paragraph (3) of this section), in the sub- trators, and career guidance and academic lations; section heading, by striking ‘‘VOCATIONAL’’ counselors at the secondary and postsec- ‘‘(4) support for public charter schools op- and inserting ‘‘CAREER’’; and ondary levels, that support activities de- erating secondary career and technical edu- (7) in subsection (g) (as redesignated by scribed in section 122 and— cation programs; paragraph (3) of this section), by striking ‘‘(A) provide in-service and pre-service ‘‘(5) support for career and technical edu- ‘‘subsections (a), (b), (c), and (d)’’ and insert- training in career and technical education cation programs that offer experience in, and ing ‘‘subsections (a), (b), and (c)’’. programs and techniques, effective teaching understanding of, all aspects of an industry SEC. 115. DISTRIBUTION OF FUNDS FOR POST- skills based on promising practices and, for which students are preparing to enter; SECONDARY CAREER AND TECH- where available and appropriate, scientif- ‘‘(6) support for family and consumer NICAL EDUCATION PROGRAMS. ically based research, and effective practices sciences programs; Section 132 (20 U.S.C. 2352) is amended by to improve parental and community involve- ‘‘(7) support for partnerships between edu- striking the section heading and inserting ment; cation and business or business inter- the following: ‘‘(B) improve student achievement in order mediaries, including cooperative education ‘‘SEC. 132. DISTRIBUTION OF FUNDS FOR POST- to meet the State adjusted levels of perform- and adjunct faculty arrangements at the sec- SECONDARY CAREER AND TECH- NICAL EDUCATION PROGRAMS.’’. ance established under section 113; ondary and postsecondary levels; SEC. 116. SPECIAL RULES FOR CAREER AND ‘‘(C) support education programs for teach- ‘‘(8) support to improve or develop new ca- TECHNICAL EDUCATION. ers and faculty of career and technical edu- reer and technical education courses and ini- Section 133 (20 U.S.C. 2353) is amended— cation in public schools and other public tiatives, including career clusters, career (1) by striking the section heading and in- school personnel who are involved in the di- academies, and distance learning, that pre- serting the following: rect delivery of educational services to ca- pare individuals academically and tech- ‘‘SEC. 133. SPECIAL RULES FOR CAREER AND reer and technical education students to en- nically for high skill, high wage, or high de- TECHNICAL EDUCATION.’’; sure that such personnel— mand occupations; and ‘‘(i) stay current with the needs, expecta- ‘‘(9) awarding incentive grants to eligible (2) by striking ‘‘vocational’’ each place tions, and methods of industry; recipients for exemplary performance in car- such term appears and inserting ‘‘career’’. ‘‘(ii) can effectively develop challenging, rying out programs under this Act, which SEC. 117. LOCAL PLAN FOR CAREER AND TECH- integrated academic and career and tech- awards shall be based on local performance NICAL EDUCATION PROGRAMS. nical education curriculum jointly with aca- indicators, as described in section 113, in ac- Section 134 (20 U.S.C. 2354) is amended— demic teachers, to the extent practicable; cordance with previously publicly disclosed (1) by striking the section heading and in- and priorities; serting the following:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00083 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S764 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘SEC. 134. LOCAL PLAN FOR CAREER AND TECH- ‘‘(11) describe how career guidance and aca- cluding an assessment of how the needs of NICAL EDUCATION PROGRAMS.’’; demic counseling will be provided to all ca- special populations are being met; and reer and technical education students; and ‘‘(7) initiate, improve, expand, and mod- (2) in subsection (b), by striking para- ‘‘(12) describe efforts to improve the re- ernize quality career and technical edu- graphs (1) through (10) and inserting the fol- cruitment and retention of career and tech- cation programs, including relevant tech- lowing: nical education teachers, faculty, coun- nology; ‘‘(1) describe how the career and technical selors, principals, and administrators, in- ‘‘(8) provide services and activities that are education programs required under section cluding individuals in groups underrep- of sufficient size, scope, and quality to be ef- 135(b) will be carried out with funds received resented in the teaching profession, and the fective; and under this title; transition to teaching from business and in- ‘‘(9) provide activities to prepare special ‘‘(2) describe how the career and technical dustry.’’. populations, including single parents and education activities will be carried out with SEC. 118. LOCAL USES OF FUNDS. displaced homemakers, for high skill, high respect to meeting State and local adjusted Section 135 (20 U.S.C. 2355) is amended— wage, or high demand occupations, including levels of performance established under sec- (1) in subsection (a), by striking ‘‘voca- those that will lead to self-sufficiency.’’; and tion 113; tional’’ and inserting ‘‘career’’; (3) in subsection (c)— ‘‘(3) describe how the eligible recipient (A) in paragraph (1), by striking ‘‘voca- will— (2) in subsection (b)— tional’’ and inserting ‘‘career’’; and ‘‘(A) offer the appropriate courses of not (A) in the matter preceding paragraph (1), less than 1 of the career pathways described by striking ‘‘vocational’’ and inserting ‘‘ca- (B) by striking paragraphs (2) through (15) in section 122(c)(1)(A); reer’’; and and inserting the following: ‘‘(B) improve the academic and technical (B) by striking paragraphs (1) through (8) ‘‘(2) to provide career guidance and aca- skills of students participating in career and and inserting the following: demic counseling that is based on current technical education programs by strength- ‘‘(1) strengthen the academic and career labor market indicators, as provided pursu- ening the academic and career and technical and technical education skills of students ant to section 118, for students participating education components of such programs participating in career and technical edu- in career and technical education programs through the integration of challenging aca- cation programs by strengthening the aca- that— demics with career and technical education demic and career and technical education ‘‘(A) improves graduation rates and pro- programs through a coherent sequence of components of such programs through the vides information on postsecondary and ca- courses to ensure learning in the core aca- integration of academics with career and reer options for secondary students, which demic subjects, and career and technical technical education programs through a co- activities may include the use of graduation education subjects; herent sequence of courses, such as career and career plans; and ‘‘(C) provide students with strong experi- pathways described in section 122(c)(1)(A), to ‘‘(B) provides assistance for postsecondary ence in and understanding of all aspects of ensure learning in the core academic sub- students, including for adult students who an industry; and jects and career and technical education sub- are changing careers or updating skills; ‘‘(D) ensure that students who participate jects; ‘‘(3) for partnerships between the eligible in such career and technical education pro- ‘‘(2) link secondary career and technical recipient and businesses, including small grams are taught to the same challenging education and postsecondary career and businesses and business intermediaries, in- academic proficiencies as are taught for all technical education, including by— cluding for— other students; ‘‘(A) offering the relevant elements of not ‘‘(A) work-related experience for students, ‘‘(4) describe how comprehensive profes- less than 1 career pathway described in sec- such as internships, cooperative education, sional development will be provided that is tion 122(c)(1)(A); school-based enterprises, entrepreneurship, consistent with section 122; ‘‘(B) developing and supporting articula- and job shadowing that are related to career ‘‘(5) describe how parents, students, aca- tion agreements between secondary and and technical education programs; demic and career and technical education postsecondary institutions; or ‘‘(B) adjunct faculty arrangements at the teachers, faculty, principals, administrators, ‘‘(C) supporting tech-prep programs and secondary and postsecondary levels; and career guidance and academic counselors, consortia; ‘‘(C) industry experience for teachers and representatives of tech-prep consortia (if ap- ‘‘(3) provide students with strong experi- faculty; plicable), representatives of business (includ- ence in and understanding of all aspects of ‘‘(4) to provide programs for special popu- ing small business) and industry, labor orga- an industry; lations; nizations, representatives of special popu- ‘‘(4) develop, improve, or expand the use of ‘‘(5) to assist career and technical student lations, and other interested individuals are technology in career and technical edu- organizations; involved in the development, implementa- cation, which may include— ‘‘(6) for mentoring and support services; tion, and evaluation of career and technical ‘‘(A) training of career and technical edu- ‘‘(7) for leasing, purchasing, upgrading, or education programs assisted under this title, cation teachers, faculty, principals, and ad- adapting instructional equipment; and how such individuals and entities are ef- ministrators to use technology, including ‘‘(8) for teacher preparation programs that fectively informed about, and assisted in, un- distance learning; or address the integration of academic and ca- derstanding, the requirements of this title, ‘‘(B) encouraging schools to collaborate reer and technical education and that assist including career pathways; with technology industries to offer vol- individuals who are interested in becoming ‘‘(6) provide assurances that the eligible re- untary internships and mentoring programs; career and technical education teachers and cipient will provide a career and technical ‘‘(5) provide professional development pro- faculty, including individuals with experi- education program that is of such size, grams that are consistent with section 122 to ence in business and industry; scope, and quality to bring about improve- secondary and postsecondary teachers, fac- ‘‘(9) to develop and expand postsecondary ment in the quality of career and technical ulty, principals, administrators, and career program offerings at times and in formats education programs; guidance and academic counselors who are that are convenient and accessible for work- ‘‘(7) describe the process that will be used involved in integrated career and technical ing students, including through the use of to evaluate and continuously improve the education programs, including— distance education; performance of the eligible recipient; ‘‘(A) in-service and pre-service training— ‘‘(10) for improving or developing new ca- ‘‘(8) describe how the eligible recipient— ‘‘(i) in career and technical education pro- reer and technical education courses, includ- ‘‘(A) will review career and technical edu- grams and techniques; ing development of new career pathways; cation programs, and identify and adopt ‘‘(ii) in effective integration of challenging ‘‘(11) to develop and support small, person- strategies to overcome barriers that result academic and career and technical education alized career-themed learning communities; in lowering rates of access to or lowering jointly with academic teachers, to the extent ‘‘(12) to provide support for family and con- success in the programs, for special popu- practicable; sumer sciences programs; lations; and ‘‘(iii) in effective teaching skills based on ‘‘(13) to provide career and technical edu- ‘‘(B) will provide programs that are de- research that includes promising practices; cation programs for adults and school drop- signed to enable the special populations to and outs to complete their secondary school edu- meet the local adjusted levels of perform- ‘‘(iv) in effective practices to improve pa- cation or upgrade their technical skills; ance and prepare for high skill, high wage, or rental and community involvement; ‘‘(14) to provide assistance to individuals high demand occupations, including those ‘‘(B) support of education programs that who have participated in services and activi- that will lead to self-sufficiency; provide information on all aspects of an in- ties under this title in finding an appropriate ‘‘(9) describe how individuals who are dustry; job and continuing their education or train- members of special populations will not be ‘‘(C) internship programs that provide rel- ing through collaboration with the work- discriminated against on the basis of their evant business experience; and force investment system established under status as members of the special popu- ‘‘(D) programs dedicated to the effective the Workforce Investment Act of 1998 (29 lations; use of instructional technology; U.S.C. 2801 et seq.); ‘‘(10) describe how funds will be used to ‘‘(6) develop and implement evaluations of ‘‘(15) to support activities in nontradi- promote preparation for nontraditional the career and technical education programs tional fields, such as mentoring and out- fields; carried out with funds under this title, in- reach; and

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00084 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S765 ‘‘(16) to support other career and technical (D) in paragraph (5)— ‘‘TITLE II—GENERAL PROVISIONS’’. education activities that are consistent with (i) by striking ‘‘training’’ and inserting SEC. 202. FISCAL REQUIREMENTS. the purpose of this Act.’’. ‘‘professional development’’; Section 211 (as redesignated by section 201 SEC. 119. TECH-PREP EDUCATION. (ii) in subparagraph (B), by inserting ‘‘, of this Act) is amended— (a) REDESIGNATION.—Title II (20 U.S.C. 2371 which may include through the use of grad- (1) by striking ‘‘vocational’’ each place the et seq.) is amended— uation and career plans’’ after ‘‘programs’’; term appears and inserting ‘‘career’’; and (1) by striking the title heading and insert- (iii) in subparagraph (D), by striking (2) in subsection (b)— ing the following: ‘‘and’’; (A) by striking paragraph (1) and inserting ‘‘PART D—TECH-PREP EDUCATION’’; (iv) in subparagraph (E), by inserting the following: ‘‘and’’ after the semicolon; and (2) by striking sections 201, 202, 206, and ‘‘(1) DETERMINATION.— (v) by adding at the end the following: 207; and ‘‘(A) IN GENERAL.—Except as provided in ‘‘(F) provide comprehensive career guid- (3) by redesignating sections 203, 204, 205, subparagraphs (B) and (C), no payments shall ance and academic counseling to partici- and 208, as sections 141, 142, 143, and 144, re- be made under this Act for any fiscal year to pating students, including special popu- spectively. a State for career and technical education lations;’’; (b) STATE ALLOTMENT AND APPLICATION.— programs or tech-prep programs unless the Section 141 (as redesignated by subsection (a) (E) in paragraph (6)— Secretary determines that the average fiscal of this section) is amended— (i) by inserting ‘‘(including pre-apprentice- effort per student or the aggregate expendi- (1) in subsection (a), by striking ‘‘section ship programs)’’ after ‘‘programs’’; and tures of such State for career and technical 206’’ and inserting ‘‘section 144’’; and (ii) by striking ‘‘and’’ after the semicolon; education programs for the 3 fiscal years pre- (2) by striking subsection (c) and inserting (F) in paragraph (7), by striking the period ceding the fiscal year for which the deter- the following: at the end and inserting ‘‘; and’’; and mination is made, equaled or exceeded such ‘‘(c) STATE APPLICATION.—Each eligible (G) by adding at the end the following: effort or expenditures for career and tech- agency desiring assistance under this part ‘‘(8) coordinate with activities conducted nical education programs, for the 3 fiscal shall submit an application to the Secretary under this title.’’; and years preceding the fiscal year for which the at such time, in such manner, and accom- (3) in subsection (d)— determination is made. panied by such information as the Secretary (A) in paragraph (2), by striking ‘‘and’’ ‘‘(B) COMPUTATION.—In computing the av- may require. Such application shall describe after the semicolon; erage fiscal effort or aggregate expenditures how activities under this part will be coordi- (B) in paragraph (3), by striking the period pursuant to subparagraph (A), the Secretary nated, to the extent practicable, with activi- at the end and inserting a semicolon; and shall exclude capital expenditures, special ties described in section 122.’’. (C) by adding at the end the following: one-time project costs, and the cost of pilot (c) TECH-PREP EDUCATION.—Section 142 (as ‘‘(4) improve career guidance and academic programs. redesignated by subsection (a) of this sec- counseling for participating students ‘‘(C) DECREASE IN FEDERAL SUPPORT.—If the tion) is amended— through the development and implementa- amount made available for career and tech- (1) in subsection (a)— tion of graduation and career plans; and nical education programs under this Act for (A) in paragraph (1)— ‘‘(5) develop curriculum that supports ef- a fiscal year is less than the amount made (i) by striking ‘‘section 203’’ and inserting fective transitions between secondary and available for career and technical education ‘‘section 141’’; postsecondary career and technical edu- programs under this Act for the preceding (ii) by striking ‘‘title’’ and inserting cation programs.’’. fiscal year, then the average fiscal effort per ‘‘part’’; (d) CONSORTIUM APPLICATIONS.—Section 143 student or the aggregate expenditures of a (iii) by striking ‘‘vocational’’ both places (as redesignated by subsection (a) of this sec- State required by subparagraph (A) for the 3 the term appears and inserting ‘‘career’’; and tion) is amended— preceding fiscal years shall be decreased by (iv) in subparagraph (A), by inserting ‘‘, (1) in subsection (a), by striking ‘‘title’’ the same percentage as the percentage de- educational service agency,’’ after ‘‘inter- and inserting ‘‘part’’; crease in the amount so made available.’’; mediate educational agency’’; and (2) in subsection (b)— and (B) in paragraph (2)— (A) by striking ‘‘5’’ and inserting ‘‘6’’; and (B) in paragraph (2), by striking ‘‘fiscal ef- (i) in subparagraph (A), by striking ‘‘and’’; (B) by striking ‘‘title’’ and inserting fort’’ both places the term appears and in- (ii) in subparagraph (B), by striking the pe- ‘‘part’’; serting ‘‘average fiscal effort’’. riod at the end and inserting a semicolon; (3) in subsection (d)— SEC. 203. VOLUNTARY SELECTION AND PARTICI- and (A) in paragraph (1), by inserting ‘‘or ad- PATION. (iii) by adding at the end the following: vanced’’ after ‘‘baccalaureate’’; Section 214 (as redesignated by section 201 ‘‘(C) employers, including small businesses, (B) by striking paragraph (4) and inserting of this Act) is amended by striking ‘‘voca- or business intermediaries; and the following: tional’’ both places the term appears and in- ‘‘(D) labor organizations.’’; ‘‘(4) provide education and training in serting ‘‘career’’. (2) in subsection (c)— areas or skills, including emerging tech- SEC. 204. LIMITATION FOR CERTAIN STUDENTS. (A) by striking paragraph (2) and inserting nology, in which there are significant work- Section 215 (as redesignated by section 201 the following: force shortages based on the data provided of this Act) is amended by striking ‘‘voca- ‘‘(2) consist of not less than 2 years of sec- by the entity in the State under section tional’’ and inserting ‘‘career’’. 118;’’; ondary school with a common core of tech- SEC. 205. AUTHORIZATION OF SECRETARY; PAR- nical skills and core academic subjects pre- (C) in paragraph (5), by striking the period TICIPATION OF PRIVATE SCHOOL ceding graduation and 2 years or more of at the end and inserting ‘‘; and’’; and PERSONNEL. higher education, or an apprenticeship pro- (D) by adding at the end the following: Part A of title II (as redesignated by sec- gram of not less than 2 years following sec- ‘‘(6) demonstrate success in, or provide as- tion 201 of this Act) is amended— ondary instruction, designed to lead to tech- surances of, coordination and integration (1) by striking section 217; nical skill proficiency, a credential, a certifi- with eligible recipients described in part C.’’; (2) by redesignating section 218 as section cate, or a degree, in a specific career field;’’; and 217; and (B) in paragraph (3)(B), by inserting ‘‘in- (4) in subsection (e), by striking ‘‘title’’ (3) in section 217 (as redesignated by para- cluding through the use of articulation and inserting ‘‘part’’. graph (2) of this section)— agreements, and’’ after ‘‘career fields,’’; (e) AUTHORIZATION OF APPROPRIATIONS.— (A) by inserting ‘‘principals,’’ after ‘‘for vo- (C) by striking paragraph (4) and inserting Section 144 (as redesignated by subsection (a) cational and technical education teachers,’’; the following: of this section) is amended— (B) by inserting ‘‘principals,’’ after ‘‘of vo- ‘‘(4) include in-service professional devel- (1) by striking ‘‘title (other than section cational and technical education teachers,’’; opment for teachers, faculty, principals, and 207)’’ and inserting ‘‘part’’; and and administrators that— (2) by striking ‘‘1999 and each of the 4’’ and (C) by striking ‘‘vocational’’ each place the ‘‘(A) supports effective implementation of inserting ‘‘2006 and each of the 5’’. term appears and inserting ‘‘career’’. tech-prep programs; TITLE II—GENERAL PROVISIONS SEC. 206. STUDENT ASSISTANCE AND OTHER FED- ‘‘(B) supports joint training in the tech- SEC. 201. REDESIGNATION OF TITLE. ERAL PROGRAMS. prep consortium; (a) FEDERAL ADMINISTRATIVE PROVISIONS.— Section 225(c) (as redesignated by section ‘‘(C) supports the needs, expectations, and Title III (20 U.S.C. 2391 et seq.) is amended by 201 of this Act) is amended— methods of business and all aspects of an in- redesignating sections 311 through 318 as sec- (1) in the subsection heading, by striking dustry; tions 211 through 218, respectively. ‘‘VOCATIONAL’’ and inserting ‘‘CAREER’’; and ‘‘(D) supports the use of contextual and ap- (b) STATE ADMINISTRATIVE PROVISIONS.— (2) by striking ‘‘vocational’’ both places plied curricula, instruction, and assessment; Title III (20 U.S.C. 2391 et seq.) is amended by the term appears and inserting ‘‘career’’. ‘‘(E) supports the use and application of redesignating sections 321 through 325 as sec- SEC. 207. TABLE OF CONTENTS. technology; and tions 221 through 225, respectively. Section 1(b) (20 U.S.C. 2301 note) is amend- ‘‘(F) assists in accessing and utilizing data, (c) TITLE HEADING.—The title heading of ed to read as follows: including labor market indicators, achieve- title III (20 U.S.C. 2391 et seq.) is amended to ‘‘(b) TABLE OF CONTENTS.—The table of ment, and assessments;’’; read as follows: contents for this Act is as follows:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00085 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S766 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘Sec. 1. Short title; table of contents. Park Transfer Act on behalf of myself Act represent obstacles to such an ar- ‘‘Sec. 2. Purpose. and Senator ENSIGN. This bill will rangement. ‘‘Sec. 3. Definitions. transfer an important tract of land in Truckee Meadows Community Col- ‘‘Sec. 4. Transition provisions. lege and the Northern Nevada Science ‘‘Sec. 5. Privacy. Washoe County, NV, to the University ‘‘Sec. 6. Limitation. and Community College System of Ne- Center are exceptional assets of the ‘‘Sec. 7. Special rule. vada. scientific and educational community ‘‘Sec. 8. Authorization of appropriations. The University of Nevada holds two in the Truckee Meadows. The Center ‘‘TITLE I—CAREER AND TECHNICAL EDU- patents from the Bureau of Land Man- serves not only the citizens of Washoe CATION ASSISTANCE TO THE STATES agement for approximately 467 acres of County, but the needs of all Nevadans ‘‘PART A—ALLOTMENT AND ALLOCATION public land located north of downtown and the western United States as well. It deserves the opportunity to grow ‘‘Sec. 111. Reservations and State allot- Reno. In the early 1970s, the land was ment. patented to the university pursuant to and prosper with the community—one ‘‘Sec. 112. Within State allocation. the Recreation and Public Purposes of the fastest-growing communities in ‘‘Sec. 113. Accountability. Act. Now known as the Dandini Re- the Nation. ‘‘Sec. 114. National activities. search Park, it is the home of Truckee The bill Senator ENSIGN and I present ‘‘Sec. 115. Assistance for the outlying Meadows Community College and the to you today simply directs the Sec- areas. Desert Research Institute’s Northern retary of the Interior to convey this ‘‘Sec. 116. Native American program. property from the Bureau of Land Man- ‘‘Sec. 117. Tribally controlled postsec- Nevada Science Center. Truckee Meadows Community Col- agement to the University and Commu- ondary career and technical in- nity College System of Nevada. Be- stitutions. lege and its predecessor, Western Ne- ‘‘Sec. 118. Occupational and employment vada Community College, have pro- cause of the overwhelming public ben- information. vided educational programs and oppor- efit provided by the Center, we ask ‘‘PART B—STATE PROVISIONS tunities to the residents of Reno, that the land be conveyed for free, but that the University cover the costs of ‘‘Sec. 121. State administration. Sparks, and the surrounding commu- ‘‘Sec. 122. State plan. nities for over 30 years. Construction of the transaction. ‘‘Sec. 123. Improvement plans. the College’s facilities on the Dandini During the 108th Congress this legis- ‘‘Sec. 124. State leadership activities. campus began in 1975, shortly after lation received strong support from my ‘‘PART C—LOCAL PROVISIONS conveyance of the original patents. colleagues and was passed by both the ‘‘Sec. 131. Distribution of funds to sec- For over 25 years the Desert Re- Energy and Natural Resources Com- ondary school programs. search Institute has excelled in applied mittee and the Senate as a whole. I ‘‘Sec. 132. Distribution of funds for post- scientific research and the application look forward to working with my fel- secondary career and technical of technologies to improve people’s low senators during this session to education programs. lives in Nevada and throughout the usher this important legislation to- ‘‘Sec. 133. Special rules for career and world. Its three core divisions of At- wards final passage. technical education. mospheric, Hydrologic, and Earth and I ask unanimous consent that the ‘‘Sec. 134. Local plan for career and tech- text of the bill be printed in the nical education programs. Ecosystem Sciences cooperate with two interdisciplinary centers to pro- RECORD. ‘‘Sec. 135. Local uses of funds. There being no objection, the bill was vide innovative solutions to pressing ‘‘PART D—TECH-PREP EDUCATION ordered to be printed in the RECORD, as environmental problems. The Center ‘‘Sec. 141. State allotment and applica- follows: for Arid Lands Environmental Manage- tion. S. 252 ‘‘Sec. 142. Tech-prep education. ment and the Center for Watersheds ‘‘Sec. 143. Consortium applications. and Environmental Sustainability Be it enacted by the Senate and House of Rep- resentatives of the United States of America in ‘‘Sec. 144. Authorization of appropria- apply scientific understanding to the tions. Congress assembled, effective management of natural re- SECTION 1. SHORT TITLE. ‘‘TITLE II—GENERAL PROVISIONS sources while addressing our needs for This Act may be cited as the ‘‘Dandini Re- ‘‘PART A—FEDERAL ADMINISTRATIVE economic diversification and science- search Park Conveyance Act’’. PROVISIONS based educational opportunities. In SEC. 2. DEFINITIONS. ‘‘Sec. 211. Fiscal requirements. doing so, DRI undertakes fundamental In this Act: ‘‘Sec. 212. Authority to make payments. scientific research in Nevada and (1) BOARD OF REGENTS.—The term ‘‘Board ‘‘Sec. 213. Construction. around the globe. For example, as a of Regents’’ means the Board of Regents of ‘‘Sec. 214. Voluntary selection and par- key participant in the U.S. Geological the University and Community College Sys- ticipation. tem of Nevada. ‘‘Sec. 215. Limitation for certain stu- Survey Water Research Program, DRI (2) SECRETARY.—The term ‘‘Secretary’’ dents. plays a critical role in identifying and means the Secretary of the Interior. ‘‘Sec. 216. Federal laws guaranteeing helping protect the region’s scarce SEC. 3. CONVEYANCE TO THE UNIVERSITY AND civil rights. water resources. COMMUNITY COLLEGE SYSTEM OF ‘‘Sec. 217. Participation of private school DRI shares its facility with the West- NEVADA. personnel. ern Regional Climate Center, one of six (a) CONVEYANCE.— (1) IN GENERAL.—The Secretary shall con- ‘‘PART B—STATE ADMINISTRATIVE PROVISIONS regional climate centers operating vey to the Board of Regents, without consid- ‘‘Sec. 221. Joint funding. under the National Oceanic and Atmos- eration, all right, title, and interest of the ‘‘Sec. 222. Prohibition on use of funds to pheric Administration’s climate pro- United States in and to the approximately induce out-of-State relocation gram. The Western Regional Climate 467 acres of land located in Washoe County, of businesses. Center conducts applied research and Nevada, patented to the University of Ne- ‘‘Sec. 223. State administrative costs. provides high quality climate data and vada under the Act of June 14, 1926 (com- ‘‘Sec. 224. Limitation on Federal regula- monly known as the ‘‘Recreation and Public tions. information pertaining to the western United States. Purposes Act’’) (43 U.S.C. 869 et seq.), and de- ‘‘Sec. 225. Student assistance and other scribed in paragraph (2). Federal programs.’’. The Desert Research Institute wishes to expand its Northern Nevada Science (2) DESCRIPTION OF LAND.—The land re- ferred to in paragraph (1) is— By Mr. REID (for himself and Mr. Center. DRI is considering an innova- (A) the parcel of land consisting of approxi- ENSIGN): tive means of financing the expansion, mately 309.11 acres and more particularly de- S. 252. A bill to direct the Secretary which would involve a private devel- scribed as T. 20 N., R. 19 E., Sec. 25, lots 1, 2, of the Interior to convey certain land oper who would build and finance the 3, 4, 5, and 11, SE1⁄4NW1⁄4, NE1⁄4SW1⁄4, Mount in Washoe County, Nevada, to the expansion and lease it back to DRI. Diablo Meridian, Nevada; and Board of Regents of the University and The private developers with whom DRI (B) the parcel of land consisting of approxi- Community College System of Nevada; has discussed the proposal, as well as mately 158.22 acres and more particularly de- to the Committee on Energy and Nat- the Institute’s counsel, however, have scribed as T. 20 N., R. 19 E., Sec. 25, lots 6 and 7, SW1⁄4NE1⁄4, NW1⁄4SE1⁄4, Mount Diablo Me- ural Resources. pointed out that the terms of the pat- ridian, Nevada. Mr. REID. Mr. President, I rise today ents and the restrictions imposed by (b) COSTS.—The Board of Regents shall pay to introduce the Dandini Research the Recreation and Public Purposes to the United States an amount equal to the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00086 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S767 costs of the Secretary associated with the either. All across the United States, (c) CONDITION ON USE OF LAND.— conveyance under subsection (a)(1). the American Legion is deservedly fa- (1) IN GENERAL.—Post No. 22 and any suc- (c) CONDITIONS.—If the Board of Regents mous for supporting community activi- cessors of Post No. 22 shall use the parcel of sells any portion of the land conveyed to the ties like the Boy Scouts and Girl land described in section (b) for the construc- Board of Regents under subsection (a)(1)— tion and operation of a post building and me- (1) the amount of consideration for the sale Scouts, as well as the National Oratori- morial park for use by Post No. 22, other vet- shall reflect fair market value, as deter- cal Contest, American Legion Baseball, erans groups, and the local community for mined by an appraisal; and Girls and Boys State, and other activi- events and activities. (2) the Board of Regents shall pay to the ties for young people. All of these wor- (2) REVERSION.—Except as provided in para- Secretary an amount equal to the net pro- thy groups and projects would benefit graph (3), if the Secretary, after notice to ceeds of the sale, for use by the Director of from the construction of a new post Post No. 22 and an opportunity for a hearing, the Bureau of Land Management in the home, and from the conveyance of this makes a finding that Post No. 22 has used or State of Nevada, without further appropria- small parcel of federal land. In sum, permitted the use of the parcel for any pur- tion. this bill is good for veterans, good for pose other than the purpose specified in paragraph (1) and Post No. 22 fails to dis- By Mr. REID (for himself and Mr. kids, and good for hard-working Ne- continue that use, title to the parcel shall ENSIGN): vada families. revert to the United States, to be adminis- S. 253. A bill to direct the Secretary Our bill simply directs the Secretary tered by the Secretary. of the Interior to convey certain land of the Interior to convey this property (3) WAIVER.—The Secretary may waive the to the Edward H. McDaniel American from the Bureau of Land Management requirements of paragraph (2) if the Sec- Legion Post No. 22 in Pahrump, Ne- to American Legion ‘‘Edward H retary determines that a waiver would be in vada, for the construction of a post McDaniel’’ Post No. 22 in Pahrump. Be- the best interests of the United States. cause of the great public benefit such a building and memorial park for use by By Mr. REID (for himself and Mr. the American Legion, other veterans’ facility will provide, we ask that the land be conveyed for free, but that the ENSIGN): groups, and the local community; to S. 254. A bill to direct the Secretary American Legion cover the costs of the the Committee on Energy and Natural of the Interior to convey certain land transaction. Resources. to Lander County, Nevada, and the Mr. REID. Mr. President, I rise today I was pleased that my distinguished colleagues recognized the value of this Secretary of the Interior to convey cer- to introduce the Pahrump American tain land to Eureka County, Nevada, Legion Post Land Conveyance Act for legislation during the 108th Congress and supported its passage by the En- for continued use as cemeteries; to the myself and Senator ENSIGN. This Act Committee on Energy’ and Natural Re- will transfer approximately 5 acres of ergy and Natural Resources Committee and by the Senate as a whole. I look sources. BLM land in Pahrump, NV, to the Mr. REID. Mr. President, I rise today forward to working with my friends to American Legion for the purpose of for myself and Senator ENSIGN to in- move this bill in a timely manner dur- constructing a post home and other fa- troduce this bill, which will address a cilities that will benefit veterans’ ing the current session. I ask unanimous consent that the long standing public land issue in cen- groups and the local community. text of the bill be printed in the tral Nevada. As you may know, the The American Legion and other non- Federal Government controls over 87 RECORD. profit organizations that represent our There being no objection, the bill was percent of the lands in the State of Ne- Nation’s veterans in the vicinity of ordered to be printed in the RECORD, as vada. This means that Nevadans must Pahrump have tripled in size over the follows: frequently seek the assistance of Con- last 10 years. The local memberships of S. 253 gress to deal with land issues that the American Legion, the Veterans of Be it enacted by the Senate and House of Rep- would otherwise be relatively uncom- Foreign Wars, and the Disabled Amer- resentatives of the United States of America in plicated. Today we offer a bill to ad- ican Veterans will soon exceed 1,000 Congress assembled, dress a simple land ownership issue in members, and these groups will con- SECTION 1. SHORT TITLE. Lander and Eureka Counties. tinue to expand as Pahrump draws This Act may be cited as the ‘‘Edward H. This bill would convey two small more and more new residents. McDaniel American Legion Post No. 22 Land cemeteries in central Nevada from fed- The existing facility used by the vet- Conveyance Act’’. eral control back to the local commu- erans in Pahrump was built by the Vet- SEC. 2. DEFINITIONS. nities to which they should belong. The erans of Foreign Wars in the 1960s. It is In this Act: cemeteries in question the Kingston much too small and not at all adequate (1) POST NO. 22.—The term ‘‘Post No. 22’’ Cemetery in Lander County and the for the veterans’ current needs. The means the Edward H. McDaniel American Maiden’s Grave Cemetery in Eureka Legion Post No. 22 in Pahrump, Nevada. nearest facility that can accommodate (2) SECRETARY.—The term ‘‘Secretary’’ County—were first established by pio- them is located in Las Vegas more means the Secretary of the Interior, acting neers and immigrants who settled the than 60 miles away. through the Director of the Bureau of Land isolated high desert valleys of the The Pahrump American Legion Management. Great Basin in the mid-1800s. These would like to build a post building, vet- SEC. 3. CONVEYANCE OF LAND TO EDWARD H. same pioneers created the Kingston erans’ garden, and memorial park. MCDANIEL AMERICAN LEGION POST and Maiden’s Grave cemeteries to serve These new facilities would benefit not NO. 22. as sacred resting places for friends and (a) CONVEYANCE ON CONDITION SUBSE- only the local veterans, but would be QUENT.—Not later than 180 days after the family. Unfortunately, years after made available—at no cost—for com- date of enactment of this Act, subject to their founding, the private nature of munity activities. The American Le- valid existing rights and the condition stated these lands was overlooked and the gion has tried for over six years to ac- in subsection (c) and in accordance with the cemeteries were placed in the hands of quire a suitable tract of land to provide Act of June 14, 1926 (commonly known as the federal land management agencies. a home for a new veterans center. The ‘‘Recreation and Public Purposes Act’’) (43 Today much of the original Kingston Legion started a pledge campaign and U.S.C. 869 et seq.), the Secretary shall con- Cemetery is on land managed by the raised over $16,000 for the building fund vey to Post No. 22, for no consideration, all U.S. Forest Service and the Maiden’s right, title, and interest of the United States before the parcel of land they sought to in and to the parcel of land described in sub- Grave Cemetery in Beowawe sits on acquire was removed from consider- section (b). land managed by the Bureau of Land ation by the BLM. Unfortunately, (b) DESCRIPTION OF LAND.—The parcel of Management. other tracts of land that might rep- land referred to in subsection (b) is the par- Under current law, these agencies resent alternative sites in Pahrump are cel of Bureau of Land Management land must sell the cemeteries back to the not suitable. that— communities at fair market value. This situation is truly regrettable. (1) is bounded by Route 160, Bride Street, However, these historic cemeteries Without a home, the Pahrump Amer- and Dandelion Road in Nye County, Nevada; were established prior to the designa- (2) consists of approximately 4.5 acres of ican Legion Post can’t offer the kind of land; and tion of the Federal agencies that now services and programs that the vet- (3) is more particularly described as a por- manage them. For years, Lander Coun- erans in the area deserve. Our veterans tion of the S 1⁄4 of section 29, T. 20 S., R. 54 ty has been required to lease much of aren’t the only ones who are suffering, E., Mount Diablo and Base Meridian. the Kingston Cemetery from the Forest

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00087 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S768 CONGRESSIONAL RECORD — SENATE February 1, 2005 Service. The Forest Service previously this Act, shall convey to Lander County, Ne- (1) IN GENERAL.—The county (including its sold approximately 1 acre to the Town vada (referred to in this section as the successors) shall continue the use of the par- of Kingston, but this land transfer did ‘‘county’’), for no consideration, all right, cel conveyed under subsection (b) as a ceme- not allow for the protection of un- title, and interest of the United States in tery. and to the parcel of land described in sub- (2) REVERSION.—If the Secretary, after no- charted graves or for the implementa- section (c). tice to the county and an opportunity for a tion of the communty’ s original site (c) DESCRIPTION OF LAND.—The parcel of hearing, makes a finding that the county has plan. land referred to in subsection (b) is the par- used or permitted the use of the parcel for Because the people of Beowawe and cel of National Forest System land (includ- any purpose other than the purpose specified Kingston should not have to buy or ing any improvements on the land) known as in paragraph (1), and the county fails to dis- lease cemeteries that are rightfully ‘‘Kingston Cemetery’’, consisting of approxi- continue that use— theirs, our bill provides for the simple mately 10 acres and more particularly de- (A) title to the parcel shall revert to the 1 1 1 conveyance of the Maiden’s Grave scribed as SW ⁄4SE ⁄4SE ⁄4 of section 36, T. Secretary, to be administered by the Sec- 16N., R. 43E., Mount Diablo Meridian. retary; and Cemetery to Eureka County and the (d) EASEMENT.—At the time of the convey- (B) the easement granted to the county balance of the original location of the ance under subsection (b), subject to sub- under subsection (d) shall be revoked. Kingston Cemetery to Lander County, section (e)(2), the Secretary shall grant the (3) WAIVER.—The Secretary may waive the NV. The conveyances provided by this county an easement allowing access for per- application of subparagraph (A) or (B) of bill will benefit our federal land man- sons desiring to visit the cemetery and other paragraph (2) if the Secretary determines agers as well as our rural communities. cemetery purposes over Forest Development that a waiver would be in the best interests The disposal of these small parcels of Road #20307B, notwithstanding any future of the United States. closing of the road for other use. land for no consideration will benefit (e) CONDITION ON USE OF LAND.— By Mr. GRASSLEY (for himself, the United States because they rep- (1) IN GENERAL.—The county (including its Mr. HATCH, Mr. SESSIONS, Mr. resent isolated tracts that prove dif- successors) shall continue the use of the par- THUNE, Mr. CARPER, Mr. NEL- ficult to manage for public use. cel conveyed under subsection (b) as a ceme- SON of Nebraska, Mr. SHELBY, In the 108th Congress I was pleased tery. (2) REVERSION.—If the Secretary, after no- and Mr. ENZI): that this bill received approval from S. 256. A bill to amend title 11 of the the Energy and Natural Resources tice to the county and an opportunity for a hearing, makes a finding that the county has United States Code, and for other pur- Committee and from the Senate as a used or permitted the use of the parcel for poses; to the Committee on the Judici- whole. I look forward to working with any purpose other than the purpose specified ary. my colleagues to complete this small in paragraph (1), and the county fails to dis- Mr. GRASSLEY. Mr. President, I ask conveyance during the current Con- continue that use— unanimous consent that the text of (A) title to the parcel shall revert to the gress. It is time that we restore owner- this bill be printed in the RECORD. ship of these two small rural ceme- Secretary, to be administered by the Sec- There being no objection, the bill was teries to the communities to which retary; and (B) the easement granted to the county ordered to be printed in the RECORD, as they rightfully belong. follows: I ask unanimous consent that the under subsection (d) shall be revoked. (3) WAIVER.—The Secretary may waive the text of the bill be printed in the S. 256 application of subparagraph (A) or (B) of Be it enacted by the Senate and House of RECORD. paragraph (2) if the Secretary determines There being no objection, the bill was Representatives of the United States of America that a waiver would be in the best interests in Congress assembled, ordered to be printed in the RECORD, as of the United States. SECTION 1. SHORT TITLE; REFERENCES; TABLE follows: SEC. 3. CONVEYANCE TO EUREKA COUNTY, NE- OF CONTENTS. S. 254 VADA. (a) SHORT TITLE.—This Act may be cited as (a) FINDINGS.—Congress finds that— Be it enacted by the Senate and House of Rep- the ‘‘Bankruptcy Abuse Prevention and Con- (1) the historical use by settlers and trav- resentatives of the United States of America in sumer Protection Act of 2005’’. elers since the late 1800’s of the cemetery Congress assembled, (b) TABLE OF CONTENTS.—The table of con- known as ‘‘Maiden’s Grave Cemetery’’ in tents for this Act is as follows: SECTION 1. SHORT TITLE. Beowawe, Nevada, predates incorporation of Sec. 1. Short title; references; table of This Act may be cited as the ‘‘Central Ne- the land within the jurisdiction of the Bu- contents. vada Rural Cemeteries Act’’. reau of Land Management on which the cem- SEC. 2. CONVEYANCE TO LANDER COUNTY, NE- etery is situated; and TITLE I—NEEDS-BASED BANKRUPTCY VADA. (2) it is appropriate that that use be con- Sec. 101. Conversion. (a) FINDINGS.—Congress finds that— tinued through local public ownership of the Sec. 102. Dismissal or conversion. (1) the historical use by settlers and trav- parcel rather than through the permitting Sec. 103. Sense of Congress and study. elers since the late 1800’s of the cemetery process of the Federal agency. Sec. 104. Notice of alternatives. Sec. 105. Debtor financial management known as ‘‘Kingston Cemetery’’ in Kingston, (b) CONVEYANCE ON CONDITION SUBSE- training test program. Nevada, predates incorporation of the land QUENT.—Subject to valid existing rights and Sec. 106. Credit counseling. within the jurisdiction of the Forest Service the condition stated in subsection (e), the on which the cemetery is situated; Sec. 107. Schedules of reasonable and nec- Secretary of the Interior, acting through the essary expenses. (2) it is appropriate that that use be con- Director of the Bureau of Land Management tinued through local public ownership of the (referred to in this section as the ‘‘Sec- TITLE II—ENHANCED CONSUMER parcel rather than through the permitting retary’’), not later than 90 days after the PROTECTION process of the Federal agency; date of enactment of this Act, shall convey Subtitle A—Penalties for Abusive Creditor (3) in accordance with Public Law 85–569 to Eureka County, Nevada (referred to in Practices (commonly known as the ‘‘Townsite Act’’) this section as the ‘‘county’’), for no consid- Sec. 201. Promotion of alternative dispute (16 U.S.C. 478a), the Forest Service has con- eration, all right, title, and interest of the resolution. veyed to the Town of Kingston 1.25 acres of United States in and to the parcel of land de- Sec. 202. Effect of discharge. the land on which historic gravesites have scribed in subsection (c). Sec. 203. Discouraging abuse of reaffirma- been identified; and (c) DESCRIPTION OF LAND.—The parcel of tion agreement practices. (4) to ensure that all areas that may have land referred to in subsection (b) is the par- Sec. 204. Preservation of claims and defenses unmarked gravesites are included, and to en- cel of public land (including any improve- upon sale of predatory loans. sure the availability of adequate gravesite ments on the land) known as ‘‘Maiden’s Sec. 205. GAO study and report on reaffirma- space in future years, an additional parcel Grave Cemetery’’, consisting of approxi- tion agreement process. consisting of approximately 8.75 acres should mately 10 acres and more particularly de- Subtitle B—Priority Child Support be conveyed to the county so as to include scribed as S1⁄2NE1⁄4SW1⁄4SW1⁄4, Sec. 211. Definition of domestic support obli- the total amount of the acreage included in N1⁄2SE1⁄4SW1⁄4SW1⁄4 of section 10, T.31N., gation. the original permit issued by the Forest R.49E., Mount Diablo Meridian. Sec. 212. Priorities for claims for domestic Service for the cemetery. (d) EASEMENT.—At the time of the convey- support obligations. (b) CONVEYANCE ON CONDITION SUBSE- ance under subsection (b), subject to sub- Sec. 213. Requirements to obtain confirma- QUENT.—Subject to valid existing rights and section (e)(2), the Secretary shall grant the tion and discharge in cases in- the condition stated in subsection (e), the county an easement allowing access for per- volving domestic support obli- Secretary of Agriculture, acting through the sons desiring to visit the cemetery and other gations. Chief of the Forest Service (referred to in cemetery purposes over an appropriate ac- Sec. 214. Exceptions to automatic stay in this section as the ‘‘Secretary’’), not later cess route consistent with current access. domestic support obligation than 90 days after the date of enactment of (e) CONDITION ON USE OF LAND.— proceedings.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00088 Fmt 0624 Sfmt 0655 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S769 Sec. 215. Nondischargeability of certain Sec. 326. Sharing of compensation. Sec. 603. Audit procedures. debts for alimony, mainte- Sec. 327. Fair valuation of collateral. Sec. 604. Sense of Congress regarding avail- nance, and support. Sec. 328. Defaults based on nonmonetary ob- ability of bankruptcy data. Sec. 216. Continued liability of property. ligations. TITLE VII—BANKRUPTCY TAX Sec. 217. Protection of domestic support Sec. 329. Clarification of postpetition wages PROVISIONS claims against preferential and benefits. Sec. 701. Treatment of certain liens. transfer motions. Sec. 330. Delay of discharge during pendency Sec. 702. Treatment of fuel tax claims. Sec. 218. Disposable income defined. of certain proceedings. Sec. 703. Notice of request for a determina- Sec. 219. Collection of child support. TITLE IV—GENERAL AND SMALL tion of taxes. Sec. 220. Nondischargeability of certain edu- BUSINESS BANKRUPTCY PROVISIONS Sec. 704. Rate of interest on tax claims. cational benefits and loans. Subtitle A—General Business Bankruptcy Sec. 705. Priority of tax claims. Subtitle C—Other Consumer Protections Provisions Sec. 706. Priority property taxes incurred. Sec. 707. No discharge of fraudulent taxes in Sec. 221. Amendments to discourage abusive Sec. 401. Adequate protection for investors. chapter 13. bankruptcy filings. Sec. 402. Meetings of creditors and equity se- Sec. 222. Sense of Congress. Sec. 708. No discharge of fraudulent taxes in curity holders. Sec. 223. Additional amendments to title 11, chapter 11. Sec. 403. Protection of refinance of security United States Code. Sec. 709. Stay of tax proceedings limited to interest. Sec. 224. Protection of retirement savings in prepetition taxes. Sec. 404. Executory contracts and unexpired bankruptcy. Sec. 710. Periodic payment of taxes in chap- leases. Sec. 225. Protection of education savings in ter 11 cases. Sec. 405. Creditors and equity security hold- bankruptcy. Sec. 711. Avoidance of statutory tax liens ers committees. Sec. 226. Definitions. prohibited. Sec. 227. Restrictions on debt relief agen- Sec. 406. Amendment to section 546 of title Sec. 712. Payment of taxes in the conduct of cies. 11, United States Code. business. Sec. 228. Disclosures. Sec. 407. Amendments to section 330(a) of Sec. 713. Tardily filed priority tax claims. Sec. 229. Requirements for debt relief agen- title 11, United States Code. Sec. 714. Income tax returns prepared by tax cies. Sec. 408. Postpetition disclosure and solici- authorities. Sec. 230. GAO study. tation. Sec. 715. Discharge of the estate’s liability Sec. 231. Protection of personally identifi- Sec. 409. Preferences. for unpaid taxes. able information. Sec. 410. Venue of certain proceedings. Sec. 716. Requirement to file tax returns to Sec. 232. Consumer privacy ombudsman. Sec. 411. Period for filing plan under chapter confirm chapter 13 plans. Sec. 233. Prohibition on disclosure of name 11. Sec. 717. Standards for tax disclosure. of minor children. Sec. 412. Fees arising from certain owner- Sec. 718. Setoff of tax refunds. ship interests. TITLE III—DISCOURAGING BANKRUPTCY Sec. 719. Special provisions related to the Sec. 413. Creditor representation at first ABUSE treatment of State and local meeting of creditors. taxes. Sec. 301. Reinforcement of the fresh start. Sec. 414. Definition of disinterested person. Sec. 720. Dismissal for failure to timely file Sec. 302. Discouraging bad faith repeat fil- Sec. 415. Factors for compensation of profes- tax returns. ings. sional persons. Sec. 303. Curbing abusive filings. TITLE VIII—ANCILLARY AND OTHER Sec. 416. Appointment of elected trustee. CROSS-BORDER CASES Sec. 304. Debtor retention of personal prop- Sec. 417. Utility service. erty security. Sec. 418. Bankruptcy fees. Sec. 801. Amendment to add chapter 15 to Sec. 305. Relief from the automatic stay Sec. 419. More complete information regard- title 11, United States Code. Sec. 802. Other amendments to titles 11 and when the debtor does not com- ing assets of the estate. plete intended surrender of con- 28, United States Code. Subtitle B—Small Business Bankruptcy sumer debt collateral. TITLE IX—FINANCIAL CONTRACT Provisions Sec. 306. Giving secured creditors fair treat- PROVISIONS Sec. 431. Flexible rules for disclosure state- ment in chapter 13. Sec. 901. Treatment of certain agreements ment and plan. Sec. 307. Domiciliary requirements for ex- by conservators or receivers of Sec. 432. Definitions. emptions. insured depository institutions. Sec. 433. Standard form disclosure state- Sec. 308. Reduction of homestead exemption Sec. 902. Authority of the FDIC and NCUAB ment and plan. for fraud. with respect to failed and fail- Sec. 434. Uniform national reporting re- Sec. 309. Protecting secured creditors in ing institutions. quirements. chapter 13 cases. Sec. 903. Amendments relating to transfers Sec. 435. Uniform reporting rules and forms Sec. 310. Limitation on luxury goods. of qualified financial contracts. Sec. 311. Automatic stay. for small business cases. Sec. 904. Amendments relating to Sec. 312. Extension of period between bank- Sec. 436. Duties in small business cases. disaffirmance or repudiation of ruptcy discharges. Sec. 437. Plan filing and confirmation dead- qualified financial contracts. Sec. 313. Definition of household goods and lines. Sec. 905. Clarifying amendment relating to antiques. Sec. 438. Plan confirmation deadline. master agreements. Sec. 314. Debt incurred to pay nondischarge- Sec. 439. Duties of the United States trustee. Sec. 906. Federal Deposit Insurance Corpora- able debts. Sec. 440. Scheduling conferences. tion Improvement Act of 1991. Sec. 315. Giving creditors fair notice in Sec. 441. Serial filer provisions. Sec. 907. Bankruptcy law amendments. chapters 7 and 13 cases. Sec. 442. Expanded grounds for dismissal or Sec. 908. Recordkeeping requirements. Sec. 316. Dismissal for failure to timely file conversion and appointment of Sec. 909. Exemptions from contemporaneous schedules or provide required trustee. execution requirement. information. Sec. 443. Study of operation of title 11, Sec. 910. Damage measure. Sec. 317. Adequate time to prepare for hear- United States Code, with re- Sec. 911. SIPC stay. spect to small businesses. ing on confirmation of the plan. TITLE X—PROTECTION OF FAMILY Sec. 444. Payment of interest. Sec. 318. Chapter 13 plans to have a 5-year FARMERS AND FAMILY FISHERMEN duration in certain cases. Sec. 445. Priority for administrative ex- Sec. 319. Sense of Congress regarding expan- penses. Sec. 1001. Permanent reenactment of chap- sion of rule 9011 of the Federal Sec. 446. Duties with respect to a debtor who ter 12. Rules of Bankruptcy Procedure. is a plan administrator of an Sec. 1002. Debt limit increase. Sec. 320. Prompt relief from stay in indi- employee benefit plan. Sec. 1003. Certain claims owed to govern- vidual cases. Sec. 447. Appointment of committee of re- mental units. Sec. 321. Chapter 11 cases filed by individ- tired employees. Sec. 1004. Definition of family farmer. Sec. 1005. Elimination of requirement that uals. TITLE V—MUNICIPAL BANKRUPTCY family farmer and spouse re- Sec. 322. Limitations on homestead exemp- PROVISIONS tion. ceive over 50 percent of income Sec. 501. Petition and proceedings related to Sec. 323. Excluding employee benefit plan from farming operation in year petition. participant contributions and prior to bankruptcy. Sec. 502. Applicability of other sections to Sec. 1006. Prohibition of retroactive assess- other property from the estate. chapter 9. Sec. 324. Exclusive jurisdiction in matters ment of disposable income. Sec. 1007. Family fishermen. involving bankruptcy profes- TITLE VI—BANKRUPTCY DATA sionals. Sec. 601. Improved bankruptcy statistics. TITLE XI—HEALTH CARE AND Sec. 325. United States trustee program fil- Sec. 602. Uniform rules for the collection of EMPLOYEE BENEFITS ing fee increase. bankruptcy data. Sec. 1101. Definitions.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00089 Fmt 0624 Sfmt 0655 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S770 CONGRESSIONAL RECORD — SENATE February 1, 2005 Sec. 1102. Disposal of patient records. Sec. 1402. Fraudulent transfers and obliga- ‘‘(II) In addition, the debtor’s monthly ex- Sec. 1103. Administrative expense claim for tions. penses may include, if applicable, the con- costs of closing a health care Sec. 1403. Payment of insurance benefits to tinuation of actual expenses paid by the business and other administra- retired employees. debtor that are reasonable and necessary for tive expenses. Sec. 1404. Effective date; application of care and support of an elderly, chronically Sec. 1104. Appointment of ombudsman to act amendments. ill, or disabled household member or member as patient advocate. TITLE XV—GENERAL EFFECTIVE DATE; of the debtor’s immediate family (including Sec. 1105. Debtor in possession; duty of APPLICATION OF AMENDMENTS parents, grandparents, siblings, children, and trustee to transfer patients. Sec. 1501. Effective date; application of grandchildren of the debtor, the dependents Sec. 1106. Exclusion from program participa- amendments. of the debtor, and the spouse of the debtor in tion not subject to automatic Sec. 1502. Technical corrections. a joint case who is not a dependent) and who stay. is unable to pay for such reasonable and nec- TITLE I—NEEDS-BASED BANKRUPTCY TITLE XII—TECHNICAL AMENDMENTS essary expenses. SEC. 101. CONVERSION. ‘‘(III) In addition, for a debtor eligible for Sec. 1201. Definitions. Section 706(c) of title 11, United States Sec. 1202. Adjustment of dollar amounts. chapter 13, the debtor’s monthly expenses Code, is amended by inserting ‘‘or consents may include the actual administrative ex- Sec. 1203. Extension of time. to’’ after ‘‘requests’’. Sec. 1204. Technical amendments. penses of administering a chapter 13 plan for SEC. 102. DISMISSAL OR CONVERSION. Sec. 1205. Penalty for persons who neg- the district in which the debtor resides, up (a) IN GENERAL.—Section 707 of title 11, ligently or fraudulently prepare to an amount of 10 percent of the projected United States Code, is amended— bankruptcy petitions. plan payments, as determined under sched- (1) by striking the section heading and in- Sec. 1206. Limitation on compensation of ules issued by the Executive Office for serting the following: professional persons. United States Trustees. Sec. 1207. Effect of conversion. ‘‘§ 707. Dismissal of a case or conversion to a ‘‘(IV) In addition, the debtor’s monthly ex- Sec. 1208. Allowance of administrative ex- case under chapter 11 or 13’’; penses may include the actual expenses for penses. and each dependent child less than 18 years of Sec. 1209. Exceptions to discharge. (2) in subsection (b)— age, not to exceed $1,500 per year per child, Sec. 1210. Effect of discharge. (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; to attend a private or public elementary or Sec. 1211. Protection against discriminatory (B) in paragraph (1), as so redesignated by secondary school if the debtor provides docu- treatment. subparagraph (A) of this paragraph— mentation of such expenses and a detailed Sec. 1212. Property of the estate. (i) in the first sentence— explanation of why such expenses are reason- Sec. 1213. Preferences. (I) by striking ‘‘but not at the request or able and necessary, and why such expenses Sec. 1214. Postpetition transactions. suggestion of’’ and inserting ‘‘trustee (or are not already accounted for in the Na- Sec. 1215. Disposition of property of the es- bankruptcy administrator, if any), or’’; tional Standards, Local Standards, or Other tate. (II) by inserting ‘‘, or, with the debtor’s Necessary Expenses referred to in subclause Sec. 1216. General provisions. consent, convert such a case to a case under (I). Sec. 1217. Abandonment of railroad line. chapter 11 or 13 of this title,’’ after ‘‘con- ‘‘(V) In addition, the debtor’s monthly ex- Sec. 1218. Contents of plan. sumer debts’’; and penses may include an allowance for housing Sec. 1219. Bankruptcy cases and proceedings. (III) by striking ‘‘a substantial abuse’’ and and utilities, in excess of the allowance spec- Sec. 1220. Knowing disregard of bankruptcy inserting ‘‘an abuse’’; and ified by the Local Standards for housing and law or rule. (ii) by striking the next to last sentence; utilities issued by the Internal Revenue Sec. 1221. Transfers made by nonprofit char- and Service, based on the actual expenses for itable corporations. (C) by adding at the end the following: home energy costs if the debtor provides doc- Sec. 1222. Protection of valid purchase ‘‘(2)(A)(i) In considering under paragraph umentation of such actual expenses and dem- money security interests. (1) whether the granting of relief would be an onstrates that such actual expenses are rea- Sec. 1223. Bankruptcy Judgeships. abuse of the provisions of this chapter, the sonable and necessary. Sec. 1224. Compensating trustees. court shall presume abuse exists if the debt- ‘‘(iii) The debtor’s average monthly pay- Sec. 1225. Amendment to section 362 of title or’s current monthly income reduced by the ments on account of secured debts shall be 11, United States Code. amounts determined under clauses (ii), (iii), calculated as the sum of— Sec. 1226. Judicial education. and (iv), and multiplied by 60 is not less than ‘‘(I) the total of all amounts scheduled as Sec. 1227. Reclamation. the lesser of— contractually due to secured creditors in Sec. 1228. Providing requested tax docu- ‘‘(I) 25 percent of the debtor’s nonpriority each month of the 60 months following the ments to the court. unsecured claims in the case, or $6,000, date of the petition; and Sec. 1229. Encouraging creditworthiness. whichever is greater; or ‘‘(II) any additional payments to secured Sec. 1230. Property no longer subject to re- ‘‘(II) $10,000. creditors necessary for the debtor, in filing a demption. ‘‘(ii)(I) The debtor’s monthly expenses plan under chapter 13 of this title, to main- Sec. 1231. Trustees. shall be the debtor’s applicable monthly ex- tain possession of the debtor’s primary resi- Sec. 1232. Bankruptcy forms. pense amounts specified under the National dence, motor vehicle, or other property nec- Sec. 1233. Direct appeals of bankruptcy mat- Standards and Local Standards, and the essary for the support of the debtor and the ters to courts of appeals. debtor’s actual monthly expenses for the cat- debtor’s dependents, that serves as collateral Sec. 1234. Involuntary cases. egories specified as Other Necessary Ex- for secured debts; Sec. 1235. Federal election law fines and pen- penses issued by the Internal Revenue Serv- divided by 60. alties as nondischargeable debt. ice for the area in which the debtor resides, ‘‘(iv) The debtor’s expenses for payment of TITLE XIII—CONSUMER CREDIT as in effect on the date of the order for relief, all priority claims (including priority child DISCLOSURE for the debtor, the dependents of the debtor, support and alimony claims) shall be cal- and the spouse of the debtor in a joint case, culated as the total amount of debts entitled Sec. 1301. Enhanced disclosures under an if the spouse is not otherwise a dependent. to priority, divided by 60. open end credit plan. Notwithstanding any other provision of this ‘‘(B)(i) In any proceeding brought under Sec. 1302. Enhanced disclosure for credit ex- clause, the monthly expenses of the debtor this subsection, the presumption of abuse tensions secured by a dwelling. shall not include any payments for debts. In may only be rebutted by demonstrating spe- Sec. 1303. Disclosures related to ‘‘introduc- addition, the debtor’s monthly expenses cial circumstances that justify additional tory rates’’. shall include the debtor’s reasonably nec- expenses or adjustments of current monthly Sec. 1304. Internet-based credit card solici- essary expenses incurred to maintain the income for which there is no reasonable al- tations. safety of the debtor and the family of the ternative. Sec. 1305. Disclosures related to late pay- debtor from family violence as identified ‘‘(ii) In order to establish special cir- ment deadlines and penalties. under section 309 of the Family Violence cumstances, the debtor shall be required to Sec. 1306. Prohibition on certain actions for Prevention and Services Act, or other appli- itemize each additional expense or adjust- failure to incur finance charges. cable Federal law. The expenses included in ment of income and to provide— Sec. 1307. Dual use debit card. the debtor’s monthly expenses described in ‘‘(I) documentation for such expense or ad- Sec. 1308. Study of bankruptcy impact of the preceding sentence shall be kept con- justment to income; and credit extended to dependent fidential by the court. In addition, if it is ‘‘(II) a detailed explanation of the special students. demonstrated that it is reasonable and nec- circumstances that make such expenses or Sec. 1309. Clarification of clear and con- essary, the debtor’s monthly expenses may adjustment to income necessary and reason- spicuous. also include an additional allowance for food able. TITLE XIV—PREVENTING CORPORATE and clothing of up to 5 percent of the food ‘‘(iii) The debtor shall attest under oath to BANKRUPTCY ABUSE and clothing categories as specified by the the accuracy of any information provided to Sec. 1401. Employee wage and benefit prior- National Standards issued by the Internal demonstrate that additional expenses or ad- ities. Revenue Service. justments to income are required.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00090 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S771 ‘‘(iv) The presumption of abuse may only a debtor all reasonable costs (including rea- ‘‘(ii) the debtor files a statement under be rebutted if the additional expenses or ad- sonable attorneys’ fees) in contesting a mo- penalty of perjury— justments to income referred to in clause (i) tion filed by a party in interest (other than ‘‘(I) specifying that the debtor meets the cause the product of the debtor’s current a trustee or United States trustee (or bank- requirement of subclause (I) or (II) of clause monthly income reduced by the amounts de- ruptcy administrator, if any)) under this (i); and termined under clauses (ii), (iii), and (iv) of subsection if— ‘‘(II) disclosing the aggregate, or best esti- subparagraph (A) when multiplied by 60 to be ‘‘(i) the court does not grant the motion; mate of the aggregate, amount of any cash less than the lesser of— and or money payments received from the debt- ‘‘(I) 25 percent of the debtor’s nonpriority ‘‘(ii) the court finds that— or’s spouse attributed to the debtor’s current unsecured claims, or $6,000, whichever is ‘‘(I) the position of the party that filed the monthly income.’’. greater; or motion violated rule 9011 of the Federal (b) DEFINITION.—Section 101 of title 11, ‘‘(II) $10,000. Rules of Bankruptcy Procedure; or United States Code, is amended by inserting ‘‘(C) As part of the schedule of current in- ‘‘(II) the attorney (if any) who filed the after paragraph (10) the following: come and expenditures required under sec- motion did not comply with the require- ‘‘(10A) ‘current monthly income’— tion 521, the debtor shall include a statement ments of clauses (i) and (ii) of paragraph ‘‘(A) means the average monthly income of the debtor’s current monthly income, and (4)(C), and the motion was made solely for from all sources that the debtor receives (or the calculations that determine whether a the purpose of coercing a debtor into waiving in a joint case the debtor and the debtor’s presumption arises under subparagraph a right guaranteed to the debtor under this spouse receive) without regard to whether (A)(i), that show how each such amount is title. such income is taxable income, derived dur- ‘‘(B) A small business that has a claim of calculated. ing the 6-month period ending on— an aggregate amount less than $1,000 shall ‘‘(3) In considering under paragraph (1) ‘‘(i) the last day of the calendar month im- not be subject to subparagraph (A)(ii)(I). whether the granting of relief would be an mediately preceding the date of the com- abuse of the provisions of this chapter in a ‘‘(C) For purposes of this paragraph— ‘‘(i) the term ‘small business’ means an un- mencement of the case if the debtor files the case in which the presumption in subpara- schedule of current income required by sec- graph (A)(i) of such paragraph does not arise incorporated business, partnership, corpora- tion, association, or organization that— tion 521(a)(1)(B)(ii); or or is rebutted, the court shall consider— ‘‘(ii) the date on which current income is ‘‘(A) whether the debtor filed the petition ‘‘(I) has fewer than 25 full-time employees as determined on the date on which the mo- determined by the court for purposes of this in bad faith; or title if the debtor does not file the schedule ‘‘(B) the totality of the circumstances (in- tion is filed; and ‘‘(II) is engaged in commercial or business of current income required by section cluding whether the debtor seeks to reject a 521(a)(1)(B)(ii); and personal services contract and the financial activity; and ‘‘(ii) the number of employees of a wholly ‘‘(B) includes any amount paid by any enti- need for such rejection as sought by the ty other than the debtor (or in a joint case debtor) of the debtor’s financial situation owned subsidiary of a corporation includes the employees of— the debtor and the debtor’s spouse), on a reg- demonstrates abuse. ular basis for the household expenses of the ‘‘(4)(A) The court, on its own initiative or ‘‘(I) a parent corporation; and ‘‘(II) any other subsidiary corporation of debtor or the debtor’s dependents (and in a on the motion of a party in interest, in ac- joint case the debtor’s spouse if not other- cordance with the procedures described in the parent corporation. ‘‘(6) Only the judge or United States trust- wise a dependent), but excludes benefits re- rule 9011 of the Federal Rules of Bankruptcy ee (or bankruptcy administrator, if any) may ceived under the Social Security Act, pay- Procedure, may order the attorney for the file a motion under section 707(b), if the cur- ments to victims of war crimes or crimes debtor to reimburse the trustee for all rea- rent monthly income of the debtor, or in a against humanity on account of their status sonable costs in prosecuting a motion filed joint case, the debtor and the debtor’s as victims of such crimes, and payments to under section 707(b), including reasonable at- spouse, as of the date of the order for relief, victims of international terrorism (as de- torneys’ fees, if— when multiplied by 12, is equal to or less fined in section 2331 of title 18) or domestic ‘‘(i) a trustee files a motion for dismissal than— terrorism (as defined in section 2331 of title or conversion under this subsection; and ‘‘(A) in the case of a debtor in a household 18) on account of their status as victims of ‘‘(ii) the court— of 1 person, the median family income of the such terrorism;’’. ‘‘(I) grants such motion; and applicable State for 1 earner; (c) UNITED STATES TRUSTEE AND BANK- ‘‘(II) finds that the action of the attorney ‘‘(B) in the case of a debtor in a household RUPTCY ADMINISTRATOR DUTIES.—Section 704 for the debtor in filing a case under this of 2, 3, or 4 individuals, the highest median of title 11, United States Code, is amended— chapter violated rule 9011 of the Federal family income of the applicable State for a (1) by inserting ‘‘(a)’’ before ‘‘The trustee Rules of Bankruptcy Procedure. family of the same number or fewer individ- ‘‘(B) If the court finds that the attorney for shall—’’; and uals; or (2) by adding at the end the following: the debtor violated rule 9011 of the Federal ‘‘(C) in the case of a debtor in a household Rules of Bankruptcy Procedure, the court, ‘‘(b)(1) With respect to a debtor who is an exceeding 4 individuals, the highest median individual in a case under this chapter— on its own initiative or on the motion of a family income of the applicable State for a party in interest, in accordance with such ‘‘(A) the United States trustee (or the family of 4 or fewer individuals, plus $525 per bankruptcy administrator, if any) shall re- procedures, may order— month for each individual in excess of 4. ‘‘(i) the assessment of an appropriate civil view all materials filed by the debtor and, ‘‘(7)(A) No judge, United States trustee (or not later than 10 days after the date of the penalty against the attorney for the debtor; bankruptcy administrator, if any), trustee, first meeting of creditors, file with the court and or other party in interest may file a motion a statement as to whether the debtor’s case ‘‘(ii) the payment of such civil penalty to under paragraph (2) if the current monthly would be presumed to be an abuse under sec- the trustee, the United States trustee (or the income of the debtor and the debtor’s spouse tion 707(b); and bankruptcy administrator, if any). combined, as of the date of the order for re- ‘‘(C) The signature of an attorney on a pe- lief when multiplied by 12, is equal to or less ‘‘(B) not later than 5 days after receiving a tition, pleading, or written motion shall con- than— statement under subparagraph (A), the court stitute a certification that the attorney ‘‘(i) in the case of a debtor in a household shall provide a copy of the statement to all has— of 1 person, the median family income of the creditors. ‘‘(i) performed a reasonable investigation applicable State for 1 earner; ‘‘(2) The United States trustee (or bank- into the circumstances that gave rise to the ‘‘(ii) in the case of a debtor in a household ruptcy administrator, if any) shall, not later petition, pleading, or written motion; and of 2, 3, or 4 individuals, the highest median than 30 days after the date of filing a state- ‘‘(ii) determined that the petition, plead- family income of the applicable State for a ment under paragraph (1), either file a mo- ing, or written motion— family of the same number or fewer individ- tion to dismiss or convert under section ‘‘(I) is well grounded in fact; and uals; or 707(b) or file a statement setting forth the ‘‘(II) is warranted by existing law or a good ‘‘(iii) in the case of a debtor in a household reasons the United States trustee (or the faith argument for the extension, modifica- exceeding 4 individuals, the highest median bankruptcy administrator, if any) does not tion, or reversal of existing law and does not family income of the applicable State for a consider such a motion to be appropriate, if constitute an abuse under paragraph (1). family of 4 or fewer individuals, plus $525 per the United States trustee (or the bankruptcy ‘‘(D) The signature of an attorney on the month for each individual in excess of 4. administrator, if any) determines that the petition shall constitute a certification that ‘‘(B) In a case that is not a joint case, cur- debtor’s case should be presumed to be an the attorney has no knowledge after an in- rent monthly income of the debtor’s spouse abuse under section 707(b) and the product of quiry that the information in the schedules shall not be considered for purposes of sub- the debtor’s current monthly income, multi- filed with such petition is incorrect. paragraph (A) if— plied by 12 is not less than— ‘‘(5)(A) Except as provided in subparagraph ‘‘(i)(I) the debtor and the debtor’s spouse ‘‘(A) in the case of a debtor in a household (B) and subject to paragraph (6), the court, are separated under applicable nonbank- of 1 person, the median family income of the on its own initiative or on the motion of a ruptcy law; or applicable State for 1 earner; or party in interest, in accordance with the pro- ‘‘(II) the debtor and the debtor’s spouse are ‘‘(B) in the case of a debtor in a household cedures described in rule 9011 of the Federal living separate and apart, other than for the of 2 or more individuals, the highest median Rules of Bankruptcy Procedure, may award purpose of evading subparagraph (A); and family income of the applicable State for a

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00091 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S772 CONGRESSIONAL RECORD — SENATE February 1, 2005 family of the same number or fewer individ- ‘‘(3) Amounts reasonably necessary to be SEC. 103. SENSE OF CONGRESS AND STUDY. uals.’’. expended under paragraph (2) shall be deter- (a) SENSE OF CONGRESS.—It is the sense of (d) NOTICE.—Section 342 of title 11, United mined in accordance with subparagraphs (A) Congress that the Secretary of the Treasury States Code, is amended by adding at the end and (B) of section 707(b)(2), if the debtor has has the authority to alter the Internal Rev- the following: current monthly income, when multiplied by enue Service standards established to set ‘‘(d) In a case under chapter 7 of this title 12, greater than— guidelines for repayment plans as needed to in which the debtor is an individual and in ‘‘(A) in the case of a debtor in a household accommodate their use under section 707(b) which the presumption of abuse arises under of 1 person, the median family income of the of title 11, United States Code. section 707(b), the clerk shall give written applicable State for 1 earner; (b) STUDY.— notice to all creditors not later than 10 days ‘‘(B) in the case of a debtor in a household (1) IN GENERAL.—Not later than 2 years after the date of the filing of the petition of 2, 3, or 4 individuals, the highest median after the date of enactment of this Act, the that the presumption of abuse has arisen.’’. family income of the applicable State for a Director of the Executive Office for United (e) NONLIMITATION OF INFORMATION.—Noth- family of the same number or fewer individ- States Trustees shall submit a report to the ing in this title shall limit the ability of a uals; or Committee on the Judiciary of the Senate creditor to provide information to a judge ‘‘(C) in the case of a debtor in a household and the Committee on the Judiciary of the (except for information communicated ex exceeding 4 individuals, the highest median House of Representatives containing the parte, unless otherwise permitted by applica- family income of the applicable State for a findings of the Director regarding the utili- ble law), United States trustee (or bank- family of 4 or fewer individuals, plus $525 per zation of Internal Revenue Service standards ruptcy administrator, if any), or trustee. month for each individual in excess of 4.’’. for determining— (f) DISMISSAL FOR CERTAIN CRIMES.—Sec- (i) SPECIAL ALLOWANCE FOR HEALTH INSUR- (A) the current monthly expenses of a tion 707 of title 11, United States Code, is ANCE.—Section 1329(a) of title 11, United debtor under section 707(b) of title 11, United amended by adding at the end the following: States Code, is amended— States Code; and ‘‘(c)(1) In this subsection— (1) in paragraph (2) by striking ‘‘or’’ at the (B) the impact that the application of such ‘‘(A) the term ‘crime of violence’ has the end; standards has had on debtors and on the meaning given such term in section 16 of (2) in paragraph (3) by striking the period bankruptcy courts. title 18; and at the end and inserting ‘‘; or’’; and (2) RECOMMENDATION.—The report under ‘‘(B) the term ‘drug trafficking crime’ has (3) by adding at the end the following: paragraph (1) may include recommendations the meaning given such term in section ‘‘(4) reduce amounts to be paid under the for amendments to title 11, United States 924(c)(2) of title 18. plan by the actual amount expended by the Code, that are consistent with the findings of ‘‘(2) Except as provided in paragraph (3), debtor to purchase health insurance for the the Director under paragraph (1). after notice and a hearing, the court, on a debtor (and for any dependent of the debtor SEC. 104. NOTICE OF ALTERNATIVES. motion by the victim of a crime of violence if such dependent does not otherwise have Section 342(b) of title 11, United States or a drug trafficking crime, may when it is health insurance coverage) if the debtor doc- Code, is amended to read as follows: in the best interest of the victim dismiss a uments the cost of such insurance and dem- ‘‘(b) Before the commencement of a case voluntary case filed under this chapter by a onstrates that— under this title by an individual whose debts debtor who is an individual if such individual ‘‘(A) such expenses are reasonable and nec- are primarily consumer debts, the clerk shall was convicted of such crime. essary; give to such individual written notice con- ‘‘(3) The court may not dismiss a case ‘‘(B)(i) if the debtor previously paid for taining— under paragraph (2) if the debtor establishes health insurance, the amount is not materi- ‘‘(1) a brief description of— by a preponderance of the evidence that the ally larger than the cost the debtor pre- ‘‘(A) chapters 7, 11, 12, and 13 and the gen- filing of a case under this chapter is nec- viously paid or the cost necessary to main- eral purpose, benefits, and costs of pro- essary to satisfy a claim for a domestic sup- tain the lapsed policy; or ceeding under each of those chapters; and port obligation.’’. ‘‘(ii) if the debtor did not have health in- ‘‘(B) the types of services available from (g) CONFIRMATION OF PLAN.—Section 1325(a) surance, the amount is not materially larger credit counseling agencies; and of title 11, United States Code, is amended— than the reasonable cost that would be in- ‘‘(2) statements specifying that— (1) in paragraph (5), by striking ‘‘and’’ at curred by a debtor who purchases health in- ‘‘(A) a person who knowingly and fraudu- the end; surance, who has similar income, expenses, lently conceals assets or makes a false oath (2) in paragraph (6), by striking the period age, and health status, and who lives in the or statement under penalty of perjury in and inserting a semicolon; and same geographical location with the same connection with a case under this title shall (3) by inserting after paragraph (6) the fol- number of dependents who do not otherwise be subject to fine, imprisonment, or both; lowing: have health insurance coverage; and and ‘‘(7) the action of the debtor in filing the ‘‘(C) the amount is not otherwise allowed ‘‘(B) all information supplied by a debtor petition was in good faith;’’. for purposes of determining disposable in- in connection with a case under this title is (h) APPLICABILITY OF MEANS TEST TO CHAP- come under section 1325(b) of this title; subject to examination by the Attorney Gen- TER 13.—Section 1325(b) of title 11, United and upon request of any party in interest, eral.’’. States Code, is amended— files proof that a health insurance policy was (1) in paragraph (1)(B), by inserting ‘‘to un- purchased.’’. SEC. 105. DEBTOR FINANCIAL MANAGEMENT TRAINING TEST PROGRAM. secured creditors’’ after ‘‘to make pay- (j) ADJUSTMENT OF DOLLAR AMOUNTS.—Sec- ments’’; and tion 104(b) of title 11, United States Code, is (a) DEVELOPMENT OF FINANCIAL MANAGE- (2) by striking paragraph (2) and inserting amended by striking ‘‘and 523(a)(2)(C)’’ each MENT AND TRAINING CURRICULUM AND MATE- the following: place it appears and inserting ‘‘523(a)(2)(C), RIALS.—The Director of the Executive Office ‘‘(2) For purposes of this subsection, the 707(b), and 1325(b)(3)’’. for United States Trustees (in this section term ‘disposable income’ means current (k) DEFINITION OF ‘MEDIAN FAMILY IN- referred to as the ‘‘Director’’) shall consult monthly income received by the debtor COME’.—Section 101 of title 11, United States with a wide range of individuals who are ex- (other than child support payments, foster Code, is amended by inserting after para- perts in the field of debtor education, includ- care payments, or disability payments for a graph (39) the following: ing trustees who serve in cases under chapter dependent child made in accordance with ap- ‘‘(39A) ‘median family income’ means for 13 of title 11, United States Code, and who plicable nonbankruptcy law to the extent any year— operate financial management education reasonably necessary to be expended for such ‘‘(A) the median family income both cal- programs for debtors, and shall develop a fi- child) less amounts reasonably necessary to culated and reported by the Bureau of the nancial management training curriculum be expended— Census in the then most recent year; and and materials that can be used to educate ‘‘(A)(i) for the maintenance or support of ‘‘(B) if not so calculated and reported in debtors who are individuals on how to better the debtor or a dependent of the debtor, or the then current year, adjusted annually manage their finances. for a domestic support obligation, that first after such most recent year until the next (b) TEST.— becomes payable after the date the petition year in which median family income is both (1) SELECTION OF DISTRICTS.—The Director is filed; and calculated and reported by the Bureau of the shall select 6 judicial districts of the United ‘‘(ii) for charitable contributions (that Census, to reflect the percentage change in States in which to test the effectiveness of meet the definition of ‘charitable contribu- the Consumer Price Index for All Urban Con- the financial management training cur- tion’ under section 548(d)(3) to a qualified re- sumers during the period of years occurring riculum and materials developed under sub- ligious or charitable entity or organization after such most recent year and before such section (a). (as defined in section 548(d)(4)) in an amount current year;’’. (2) USE.—For an 18-month period beginning not to exceed 15 percent of gross income of (k) CLERICAL AMENDMENT.—The table of not later than 270 days after the date of the the debtor for the year in which the con- sections for chapter 7 of title 11, United enactment of this Act, such curriculum and tributions are made; and States Code, is amended by striking the item materials shall be, for the 6 judicial districts ‘‘(B) if the debtor is engaged in business, relating to section 707 and inserting the fol- selected under paragraph (1), used as the in- for the payment of expenditures necessary lowing: structional course concerning personal fi- for the continuation, preservation, and oper- ‘‘707. Dismissal of a case or conversion to a nancial management for purposes of section ation of such business. case under chapter 11 or 13.’’. 111 of title 11, United States Code.

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(c) EVALUATION.— days after the debtor files a petition, except ‘‘(2) instructional courses concerning per- (1) IN GENERAL.—During the 18-month pe- that the court, for cause, may order an addi- sonal financial management currently ap- riod referred to in subsection (b), the Direc- tional 15 days.’’. proved by the United States trustee (or the tor shall evaluate the effectiveness of— (b) CHAPTER 7 DISCHARGE.—Section 727(a) bankruptcy administrator, if any), as appli- (A) the financial management training of title 11, United States Code, is amended— cable. curriculum and materials developed under (1) in paragraph (9), by striking ‘‘or’’ at the ‘‘(b) The United States trustee (or bank- subsection (a); and end; ruptcy administrator, if any) shall only ap- (B) a sample of existing consumer edu- (2) in paragraph (10), by striking the period prove a nonprofit budget and credit coun- cation programs such as those described in and inserting ‘‘; or’’; and seling agency or an instructional course con- the Report of the National Bankruptcy Re- (3) by adding at the end the following: cerning personal financial management as view Commission (October 20, 1997) that are ‘‘(11) after filing the petition, the debtor follows: representative of consumer education pro- failed to complete an instructional course ‘‘(1) The United States trustee (or bank- grams carried out by the credit industry, by concerning personal financial management ruptcy administrator, if any) shall have trustees serving under chapter 13 of title 11, described in section 111, except that this thoroughly reviewed the qualifications of the United States Code, and by consumer coun- paragraph shall not apply with respect to a nonprofit budget and credit counseling agen- seling groups. debtor who resides in a district for which the cy or of the provider of the instructional (2) REPORT.—Not later than 3 months after United States trustee (or the bankruptcy ad- course under the standards set forth in this concluding such evaluation, the Director ministrator, if any) determines that the ap- section, and the services or instructional shall submit a report to the Speaker of the proved instructional courses are not ade- courses that will be offered by such agency House of Representatives and the President quate to service the additional individuals or such provider, and may require such agen- pro tempore of the Senate, for referral to the who would otherwise be required to complete cy or such provider that has sought approval appropriate committees of the Congress, such instructional courses under this section to provide information with respect to such containing the findings of the Director re- (The United States trustee (or the bank- review. garding the effectiveness of such curriculum, ruptcy administrator, if any) who makes a ‘‘(2) The United States trustee (or bank- such materials, and such programs and their determination described in this paragraph ruptcy administrator, if any) shall have de- costs. shall review such determination not later termined that such agency or such instruc- SEC. 106. CREDIT COUNSELING. than 1 year after the date of such determina- tional course fully satisfies the applicable standards set forth in this section. (a) WHO MAY BEADEBTOR.—Section 109 of tion, and not less frequently than annually ‘‘(3) If a nonprofit budget and credit coun- title 11, United States Code, is amended by thereafter.).’’. seling agency or instructional course did not adding at the end the following: (c) CHAPTER 13 DISCHARGE.—Section 1328 of appear on the approved list for the district ‘‘(h)(1) Subject to paragraphs (2) and (3), title 11, United States Code, is amended by under subsection (a) immediately before ap- and notwithstanding any other provision of adding at the end the following: proval under this section, approval under this section, an individual may not be a ‘‘(g)(1) The court shall not grant a dis- this subsection of such agency or such in- debtor under this title unless such individual charge under this section to a debtor unless structional course shall be for a proba- has, during the 180-day period preceding the after filing a petition the debtor has com- tionary period not to exceed 6 months. date of filing of the petition by such indi- pleted an instructional course concerning ‘‘(4) At the conclusion of the applicable vidual, received from an approved nonprofit personal financial management described in probationary period under paragraph (3), the budget and credit counseling agency de- section 111. United States trustee (or bankruptcy admin- scribed in section 111(a) an individual or ‘‘(2) Paragraph (1) shall not apply with re- istrator, if any) may only approve for an ad- group briefing (including a briefing con- spect to a debtor who resides in a district for ditional 1-year period, and for successive 1- ducted by telephone or on the Internet) that which the United States trustee (or the year periods thereafter, an agency or in- outlined the opportunities for available cred- bankruptcy administrator, if any) deter- structional course that has demonstrated it counseling and assisted such individual in mines that the approved instructional during the probationary or applicable subse- performing a related budget analysis. courses are not adequate to service the addi- quent period of approval that such agency or ‘‘(2)(A) Paragraph (1) shall not apply with tional individuals who would otherwise be instructional course— respect to a debtor who resides in a district required to complete such instructional ‘‘(A) has met the standards set forth under for which the United States trustee (or the course by reason of the requirements of para- this section during such period; and bankruptcy administrator, if any) deter- graph (1). ‘‘(B) can satisfy such standards in the fu- mines that the approved nonprofit budget ‘‘(3) The United States trustee (or the ture. and credit counseling agencies for such dis- bankruptcy administrator, if any) who ‘‘(5) Not later than 30 days after any final trict are not reasonably able to provide ade- makes a determination described in para- decision under paragraph (4), an interested quate services to the additional individuals graph (2) shall review such determination person may seek judicial review of such deci- who would otherwise seek credit counseling not later than 1 year after the date of such sion in the appropriate district court of the from such agencies by reason of the require- determination, and not less frequently than annually thereafter.’’. United States. ments of paragraph (1). ‘‘(c)(1) The United States trustee (or the ‘‘(B) The United States trustee (or the (d) DEBTOR’S DUTIES.—Section 521 of title 11, United States Code, is amended— bankruptcy administrator, if any) shall only bankruptcy administrator, if any) who approve a nonprofit budget and credit coun- makes a determination described in subpara- (1) by inserting ‘‘(a)’’ before ‘‘The debtor shall—’’; and seling agency that demonstrates that it will graph (A) shall review such determination provide qualified counselors, maintain ade- not later than 1 year after the date of such (2) by adding at the end the following: ‘‘(b) In addition to the requirements under quate provision for safekeeping and payment determination, and not less frequently than of client funds, provide adequate counseling annually thereafter. Notwithstanding the subsection (a), a debtor who is an individual shall file with the court— with respect to client credit problems, and preceding sentence, a nonprofit budget and deal responsibly and effectively with other credit counseling agency may be disapproved ‘‘(1) a certificate from the approved non- profit budget and credit counseling agency matters relating to the quality, effective- by the United States trustee (or the bank- ness, and financial security of the services it ruptcy administrator, if any) at any time. that provided the debtor services under sec- tion 109(h) describing the services provided provides. ‘‘(3)(A) Subject to subparagraph (B), the re- ‘‘(2) To be approved by the United States to the debtor; and quirements of paragraph (1) shall not apply trustee (or the bankruptcy administrator, if ‘‘(2) a copy of the debt repayment plan, if with respect to a debtor who submits to the any), a nonprofit budget and credit coun- court a certification that— any, developed under section 109(h) through seling agency shall, at a minimum— ‘‘(i) describes exigent circumstances that the approved nonprofit budget and credit ‘‘(A) have a board of directors the majority merit a waiver of the requirements of para- counseling agency referred to in paragraph of which— graph (1); (1).’’. ‘‘(i) are not employed by such agency; and (e) GENERAL PROVISIONS.— ‘‘(ii) states that the debtor requested cred- ‘‘(ii) will not directly or indirectly benefit (1) IN GENERAL.—Chapter 1 of title 11, it counseling services from an approved non- financially from the outcome of the coun- United States Code, is amended by adding at profit budget and credit counseling agency, seling services provided by such agency; the end the following: but was unable to obtain the services re- ‘‘(B) if a fee is charged for counseling serv- ferred to in paragraph (1) during the 5-day ‘‘§ 111. Nonprofit budget and credit coun- ices, charge a reasonable fee, and provide period beginning on the date on which the seling agencies; financial management in- services without regard to ability to pay the debtor made that request; and structional courses fee; ‘‘(iii) is satisfactory to the court. ‘‘(a) The clerk shall maintain a publicly ‘‘(C) provide for safekeeping and payment ‘‘(B) With respect to a debtor, an exemp- available list of— of client funds, including an annual audit of tion under subparagraph (A) shall cease to ‘‘(1) nonprofit budget and credit counseling the trust accounts and appropriate employee apply to that debtor on the date on which agencies that provide 1 or more services de- bonding; the debtor meets the requirements of para- scribed in section 109(h) currently approved ‘‘(D) provide full disclosures to a client, in- graph (1), but in no case may the exemption by the United States trustee (or the bank- cluding funding sources, counselor qualifica- apply to that debtor after the date that is 30 ruptcy administrator, if any); and tions, possible impact on credit reports, and

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00093 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S774 CONGRESSIONAL RECORD — SENATE February 1, 2005 any costs of such program that will be paid course is no longer approved, in which case ‘‘(A) the creditor unreasonably refused to by such client and how such costs will be the clerk shall remove it from the list main- consider the debtor’s proposal; and paid; tained under subsection (a). ‘‘(B) the proposed alternative repayment ‘‘(E) provide adequate counseling with re- ‘‘(g)(1) No nonprofit budget and credit schedule was made prior to expiration of the spect to a client’s credit problems that in- counseling agency may provide to a credit 60-day period specified in paragraph cludes an analysis of such client’s current fi- reporting agency information concerning (1)(B)(i).’’. nancial condition, factors that caused such whether a debtor has received or sought in- (b) LIMITATION ON AVOIDABILITY.—Section financial condition, and how such client can struction concerning personal financial man- 547 of title 11, United States Code, is amend- develop a plan to respond to the problems agement from such agency. ed by adding at the end the following: without incurring negative amortization of ‘‘(2) A nonprofit budget and credit coun- ‘‘(h) The trustee may not avoid a transfer debt; seling agency that willfully or negligently if such transfer was made as a part of an al- ‘‘(F) provide trained counselors who re- fails to comply with any requirement under ternative repayment schedule between the ceive no commissions or bonuses based on this title with respect to a debtor shall be debtor and any creditor of the debtor created the outcome of the counseling services pro- liable for damages in an amount equal to the by an approved nonprofit budget and credit sum of— vided by such agency, and who have ade- counseling agency.’’. ‘‘(A) any actual damages sustained by the quate experience, and have been adequately SEC. 202. EFFECT OF DISCHARGE. debtor as a result of the violation; and trained to provide counseling services to in- Section 524 of title 11, United States Code, ‘‘(B) any court costs or reasonable attor- dividuals in financial difficulty, including is amended by adding at the end the fol- neys’ fees (as determined by the court) in- the matters described in subparagraph (E); lowing: curred in an action to recover those dam- ‘‘(G) demonstrate adequate experience and ‘‘(i) The willful failure of a creditor to ages.’’. credit payments received under a plan con- background in providing credit counseling; (2) CLERICAL AMENDMENT.—The table of firmed under this title, unless the order con- and sections for chapter 1 of title 11, United firming the plan is revoked, the plan is in de- ‘‘(H) have adequate financial resources to States Code, is amended by adding at the end fault, or the creditor has not received pay- provide continuing support services for budg- the following: ments required to be made under the plan in eting plans over the life of any repayment ‘‘111. Nonprofit budget and credit counseling the manner required by the plan (including plan. crediting the amounts required under the ‘‘(d) The United States trustee (or the agencies; financial manage- plan), shall constitute a violation of an in- bankruptcy administrator, if any) shall only ment instructional courses.’’. junction under subsection (a)(2) if the act of approve an instructional course concerning (f) LIMITATION.—Section 362 of title 11, the creditor to collect and failure to credit personal financial management— United States Code, is amended by adding at payments in the manner required by the plan ‘‘(1) for an initial probationary period the end the following: ‘‘(i) If a case commenced under chapter 7, caused material injury to the debtor. under subsection (b)(3) if the course will pro- ‘‘(j) Subsection (a)(2) does not operate as 11, or 13 is dismissed due to the creation of a vide at a minimum— an injunction against an act by a creditor debt repayment plan, for purposes of sub- ‘‘(A) trained personnel with adequate expe- that is the holder of a secured claim, if— section (c)(3), any subsequent case com- rience and training in providing effective in- ‘‘(1) such creditor retains a security inter- menced by the debtor under any such chap- struction and services; est in real property that is the principal resi- ter shall not be presumed to be filed not in ‘‘(B) learning materials and teaching dence of the debtor; methodologies designed to assist debtors in good faith. ‘‘(j) On request of a party in interest, the ‘‘(2) such act is in the ordinary course of understanding personal financial manage- business between the creditor and the debt- ment and that are consistent with stated ob- court shall issue an order under subsection (c) confirming that the automatic stay has or; and jectives directly related to the goals of such ‘‘(3) such act is limited to seeking or ob- instructional course; been terminated.’’. SEC. 107. SCHEDULES OF REASONABLE AND NEC- taining periodic payments associated with a ‘‘(C) adequate facilities situated in reason- valid security interest in lieu of pursuit of in ably convenient locations at which such in- ESSARY EXPENSES. For purposes of section 707(b) of title 11, rem relief to enforce the lien.’’. structional course is offered, except that United States Code, as amended by this Act, SEC. 203. DISCOURAGING ABUSE OF REAFFIRMA- such facilities may include the provision of the Director of the Executive Office for TION AGREEMENT PRACTICES. such instructional course by telephone or United States Trustees shall, not later than (a) IN GENERAL.—Section 524 of title 11, through the Internet, if such instructional 180 days after the date of enactment of this United States Code, as amended section 202, course is effective; and Act, issue schedules of reasonable and nec- is amended— ‘‘(D) the preparation and retention of rea- essary administrative expenses of admin- (1) in subsection (c), by striking paragraph sonable records (which shall include the istering a chapter 13 plan for each judicial (2) and inserting the following: debtor’s bankruptcy case number) to permit district of the United States. ‘‘(2) the debtor received the disclosures de- evaluation of the effectiveness of such in- scribed in subsection (k) at or before the TITLE II—ENHANCED CONSUMER structional course, including any evaluation time at which the debtor signed the agree- PROTECTION of satisfaction of instructional course re- ment;’’; and quirements for each debtor attending such Subtitle A—Penalties for Abusive Creditor (2) by adding at the end the following: instructional course, which shall be avail- Practices ‘‘(k)(1) The disclosures required under sub- able for inspection and evaluation by the Ex- SEC. 201. PROMOTION OF ALTERNATIVE DISPUTE section (c)(2) shall consist of the disclosure ecutive Office for United States Trustees, RESOLUTION. statement described in paragraph (3), com- the United States trustee (or the bankruptcy (a) REDUCTION OF CLAIM.—Section 502 of pleted as required in that paragraph, to- administrator, if any), or the chief bank- title 11, United States Code, is amended by gether with the agreement specified in sub- ruptcy judge for the district in which such adding at the end the following: section (c), statement, declaration, motion instructional course is offered; and ‘‘(k)(1) The court, on the motion of the and order described, respectively, in para- ‘‘(2) for any 1-year period if the provider debtor and after a hearing, may reduce a graphs (4) through (8), and shall be the only thereof has demonstrated that the course claim filed under this section based in whole disclosures required in connection with en- meets the standards of paragraph (1) and, in on an unsecured consumer debt by not more tering into such agreement. addition— than 20 percent of the claim, if— ‘‘(2) Disclosures made under paragraph (1) ‘‘(A) has been effective in assisting a sub- ‘‘(A) the claim was filed by a creditor who shall be made clearly and conspicuously and stantial number of debtors to understand unreasonably refused to negotiate a reason- in writing. The terms ‘Amount Reaffirmed’ personal financial management; and able alternative repayment schedule pro- and ‘Annual Percentage Rate’ shall be dis- ‘‘(B) is otherwise likely to increase sub- posed on behalf of the debtor by an approved closed more conspicuously than other terms, stantially the debtor’s understanding of per- nonprofit budget and credit counseling agen- data or information provided in connection sonal financial management. cy described in section 111; with this disclosure, except that the phrases ‘‘(e) The district court may, at any time, ‘‘(B) the offer of the debtor under subpara- ‘Before agreeing to reaffirm a debt, review investigate the qualifications of a nonprofit graph (A)— these important disclosures’ and ‘Summary budget and credit counseling agency referred ‘‘(i) was made at least 60 days before the of Reaffirmation Agreement’ may be equally to in subsection (a), and request production date of the filing of the petition; and conspicuous. Disclosures may be made in a of documents to ensure the integrity and ef- ‘‘(ii) provided for payment of at least 60 different order and may use terminology dif- fectiveness of such agency. The district percent of the amount of the debt over a pe- ferent from that set forth in paragraphs (2) court may, at any time, remove from the ap- riod not to exceed the repayment period of through (8), except that the terms ‘Amount proved list under subsection (a) a nonprofit the loan, or a reasonable extension thereof; Reaffirmed’ and ‘Annual Percentage Rate’ budget and credit counseling agency upon and must be used where indicated. finding such agency does not meet the quali- ‘‘(C) no part of the debt under the alter- ‘‘(3) The disclosure statement required fications of subsection (b). native repayment schedule is nondischarge- under this paragraph shall consist of the fol- ‘‘(f) The United States trustee (or the able. lowing: bankruptcy administrator, if any) shall no- ‘‘(2) The debtor shall have the burden of ‘‘(A) The statement: ‘Part A: Before agree- tify the clerk that a nonprofit budget and proving, by clear and convincing evidence, ing to reaffirm a debt, review these impor- credit counseling agency or an instructional that— tant disclosures:’;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00094 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S775 ‘‘(B) Under the heading ‘Summary of Reaf- Truth in Lending Act, by stating ‘The inter- ‘‘ ‘6. If you were represented by an attorney firmation Agreement’, the statement: ‘This est rate on your loan may be a variable in- during the negotiation of your reaffirmation Summary is made pursuant to the require- terest rate which changes from time to time, agreement, your reaffirmation agreement ments of the Bankruptcy Code’; so that the annual percentage rate disclosed becomes effective upon filing with the court ‘‘(C) The ‘Amount Reaffirmed’, using that here may be higher or lower.’. unless the reaffirmation is presumed to be an term, which shall be— ‘‘(G) If the debt is secured by a security in- undue hardship as explained in Part D. ‘‘(i) the total amount of debt that the debt- terest which has not been waived in whole or ‘‘ ‘7. If you were not represented by an at- or agrees to reaffirm by entering into an in part or determined to be void by a final torney during the negotiation of your reaf- agreement of the kind specified in subsection order of the court at the time of the disclo- firmation agreement, it will not be effective (c), and sure, by disclosing that a security interest or unless the court approves it. The court will ‘‘(ii) the total of any fees and costs accrued lien in goods or property is asserted over notify you of the hearing on your reaffirma- as of the date of the disclosure statement, some or all of the debts the debtor is re- tion agreement. You must attend this hear- related to such total amount. affirming and listing the items and their ing in bankruptcy court where the judge will ‘‘(D) In conjunction with the disclosure of original purchase price that are subject to review your reaffirmation agreement. The the ‘Amount Reaffirmed’, the statements— the asserted security interest, or if not a bankruptcy court must approve your reaffir- ‘‘(i) ‘The amount of debt you have agreed purchase-money security interest then list- mation agreement as consistent with your to reaffirm’; and ing by items or types and the original best interests, except that no court approval ‘‘(ii) ‘Your credit agreement may obligate amount of the loan. is required if your reaffirmation agreement you to pay additional amounts which may ‘‘(H) At the election of the creditor, a is for a consumer debt secured by a mort- come due after the date of this disclosure. statement of the repayment schedule using 1 gage, deed of trust, security deed, or other Consult your credit agreement.’. or a combination of the following— lien on your real property, like your home. ‘‘(E) The ‘Annual Percentage Rate’, using ‘‘(i) by making the statement: ‘Your first ‘‘ ‘Your right to rescind (cancel) your reaf- that term, which shall be disclosed as— payment in the amount of $lll is due on firmation agreement. You may rescind (can- ‘‘(i) if, at the time the petition is filed, the lll but the future payment amount may cel) your reaffirmation agreement at any debt is an extension of credit under an open be different. Consult your reaffirmation time before the bankruptcy court enters a end credit plan, as the terms ‘credit’ and agreement or credit agreement, as applica- discharge order, or before the expiration of ‘open end credit plan’ are defined in section ble.’, and stating the amount of the first the 60-day period that begins on the date 103 of the Truth in Lending Act, then— payment and the due date of that payment your reaffirmation agreement is filed with ‘‘(I) the annual percentage rate determined in the places provided; the court, whichever occurs later. To rescind under paragraphs (5) and (6) of section 127(b) ‘‘(ii) by making the statement: ‘Your pay- (cancel) your reaffirmation agreement, you of the Truth in Lending Act, as applicable, ment schedule will be:’, and describing the must notify the creditor that your reaffirma- as disclosed to the debtor in the most recent repayment schedule with the number, tion agreement is rescinded (or canceled). periodic statement prior to entering into an amount, and due dates or period of payments ‘‘ ‘What are your obligations if you reaf- agreement of the kind specified in subsection scheduled to repay the debts reaffirmed to firm the debt? A reaffirmed debt remains (c) or, if no such periodic statement has been the extent then known by the disclosing your personal legal obligation. It is not dis- given to the debtor during the prior 6 party; or charged in your bankruptcy case. That months, the annual percentage rate as it ‘‘(iii) by describing the debtor’s repayment means that if you default on your reaffirmed would have been so disclosed at the time the obligations with reasonable specificity to debt after your bankruptcy case is over, your disclosure statement is given to the debtor, the extent then known by the disclosing creditor may be able to take your property or to the extent this annual percentage rate party. or your wages. Otherwise, your obligations is not readily available or not applicable, ‘‘(I) The following statement: ‘Note: When will be determined by the reaffirmation then this disclosure refers to what a creditor agreement which may have changed the ‘‘(II) the simple interest rate applicable to ‘‘may’’ do, it does not use the word ‘‘may’’ to terms of the original agreement. For exam- the amount reaffirmed as of the date the dis- give the creditor specific permission. The ple, if you are reaffirming an open end credit closure statement is given to the debtor, or agreement, the creditor may be permitted by if different simple interest rates apply to dif- word ‘‘may’’ is used to tell you what might occur if the law permits the creditor to take that agreement or applicable law to change ferent balances, the simple interest rate ap- the terms of that agreement in the future plicable to each such balance, identifying the action. If you have questions about your reaffirming a debt or what the law requires, under certain conditions. the amount of each such balance included in ‘‘ ‘Are you required to enter into a reaffir- consult with the attorney who helped you the amount reaffirmed, or mation agreement by any law? No, you are negotiate this agreement reaffirming a debt. ‘‘(III) if the entity making the disclosure not required to reaffirm a debt by any law. If you don’t have an attorney helping you, elects, to disclose the annual percentage rate Only agree to reaffirm a debt if it is in your the judge will explain the effect of your re- under subclause (I) and the simple interest best interest. Be sure you can afford the pay- affirming a debt when the hearing on the re- rate under subclause (II); or ments you agree to make. affirmation agreement is held.’. ‘‘(ii) if, at the time the petition is filed, the ‘‘ ‘What if your creditor has a security in- ‘‘(J)(i) The following additional state- debt is an extension of credit other than terest or lien? Your bankruptcy discharge ments: under an open end credit plan, as the terms does not eliminate any lien on your prop- ‘credit’ and ‘open end credit plan’ are defined ‘‘ ‘Reaffirming a debt is a serious financial erty. A ‘‘lien’’ is often referred to as a secu- in section 103 of the Truth in Lending Act, decision. The law requires you to take cer- rity interest, deed of trust, mortgage or se- then— tain steps to make sure the decision is in curity deed. Even if you do not reaffirm and ‘‘(I) the annual percentage rate under sec- your best interest. If these steps are not your personal liability on the debt is dis- tion 128(a)(4) of the Truth in Lending Act, as completed, the reaffirmation agreement is charged, because of the lien your creditor disclosed to the debtor in the most recent not effective, even though you have signed may still have the right to take the security disclosure statement given to the debtor it. property if you do not pay the debt or de- prior to the entering into an agreement of ‘‘ ‘1. Read the disclosures in this Part A fault on it. If the lien is on an item of per- the kind specified in subsection (c) with re- carefully. Consider the decision to reaffirm sonal property that is exempt under your spect to the debt, or, if no such disclosure carefully. Then, if you want to reaffirm, sign State’s law or that the trustee has aban- statement was given to the debtor, the an- the reaffirmation agreement in Part B (or doned, you may be able to redeem the item nual percentage rate as it would have been you may use a separate agreement you and rather than reaffirm the debt. To redeem, so disclosed at the time the disclosure state- your creditor agree on). you make a single payment to the creditor ment is given to the debtor, or to the extent ‘‘ ‘2. Complete and sign Part D and be sure equal to the current value of the security this annual percentage rate is not readily you can afford to make the payments you property, as agreed by the parties or deter- available or not applicable, then are agreeing to make and have received a mined by the court.’. ‘‘(II) the simple interest rate applicable to copy of the disclosure statement and a com- ‘‘(ii) In the case of a reaffirmation under the amount reaffirmed as of the date the dis- pleted and signed reaffirmation agreement. subsection (m)(2), numbered paragraph 6 in closure statement is given to the debtor, or ‘‘ ‘3. If you were represented by an attorney the disclosures required by clause (i) of this if different simple interest rates apply to dif- during the negotiation of your reaffirmation subparagraph shall read as follows: ferent balances, the simple interest rate ap- agreement, the attorney must have signed ‘‘ ‘6. If you were represented by an attorney plicable to each such balance, identifying the certification in Part C. during the negotiation of your reaffirmation the amount of such balance included in the ‘‘ ‘4. If you were not represented by an at- agreement, your reaffirmation agreement amount reaffirmed, or torney during the negotiation of your reaf- becomes effective upon filing with the ‘‘(III) if the entity making the disclosure firmation agreement, you must have com- court.’. elects, to disclose the annual percentage rate pleted and signed Part E. ‘‘(4) The form of such agreement required under (I) and the simple interest rate under ‘‘ ‘5. The original of this disclosure must be under this paragraph shall consist of the fol- (II). filed with the court by you or your creditor. lowing: ‘‘(F) If the underlying debt transaction was If a separate reaffirmation agreement (other ‘‘ ‘Part B: Reaffirmation Agreement. I (we) disclosed as a variable rate transaction on than the one in Part B) has been signed, it agree to reaffirm the debts arising under the the most recent disclosure given under the must be attached. credit agreement described below.

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‘‘ ‘Brief description of credit agreement: ‘‘ ‘I believe this reaffirmation agreement is ‘‘(c) BANKRUPTCY INVESTIGATIONS.—Each ‘‘ ‘Description of any changes to the credit in my best interest based on the income and United States attorney designated under this agreement made as part of this reaffirmation expenses I have disclosed in my Statement in section shall, in addition to any other re- agreement: Support of this reaffirmation agreement, and sponsibilities, have primary responsibility ‘‘ ‘Signature: Date: because (provide any additional relevant rea- for carrying out the duties of a United ‘‘ ‘Borrower: sons the court should consider): States attorney under section 3057. ‘‘ ‘Co-borrower, if also reaffirming these ‘‘ ‘Therefore, I ask the court for an order ‘‘(d) BANKRUPTCY PROCEDURES.—The bank- debts: approving this reaffirmation agreement.’. ruptcy courts shall establish procedures for ‘‘ ‘Accepted by creditor: ‘‘(8) The court order, which may be used to referring any case that may contain a mate- ‘‘ ‘Date of creditor acceptance:’. approve such agreement, shall consist of the rially fraudulent statement in a bankruptcy ‘‘(5) The declaration shall consist of the following: schedule to the individuals designated under following: ‘‘ ‘Court Order: The court grants the debt- this section.’’. ‘‘(A) The following certification: or’s motion and approves the reaffirmation (2) CLERICAL AMENDMENT.—The table of ‘‘ ‘Part C: Certification by Debtor’s Attor- agreement described above.’. sections for chapter 9 of title 18, United ney (If Any). ‘‘(l) Notwithstanding any other provision States Code, is amended by adding at the end of this title the following shall apply: ‘‘ ‘I hereby certify that (1) this agreement the following: represents a fully informed and voluntary ‘‘(1) A creditor may accept payments from agreement by the debtor; (2) this agreement a debtor before and after the filing of an agreement of the kind specified in subsection ‘‘158. Designation of United States attorneys does not impose an undue hardship on the and agents of the Federal Bu- debtor or any dependent of the debtor; and (c) with the court. ‘‘(2) A creditor may accept payments from reau of Investigation to address (3) I have fully advised the debtor of the abusive reaffirmations of debt legal effect and consequences of this agree- a debtor under such agreement that the cred- itor believes in good faith to be effective. and materially fraudulent ment and any default under this agreement. statements in bankruptcy ‘‘ ‘Signature of Debtor’s Attorney: ‘‘(3) The requirements of subsections (c)(2) and (k) shall be satisfied if disclosures re- schedules.’’. Date:’. SEC. 204. PRESERVATION OF CLAIMS AND DE- ‘‘(B) If a presumption of undue hardship quired under those subsections are given in good faith. FENSES UPON SALE OF PREDATORY has been established with respect to such LOANS. ‘‘(m)(1) Until 60 days after an agreement of agreement, such certification shall state Section 363 of title 11, United States Code, the kind specified in subsection (c) is filed that in the opinion of the attorney, the debt- is amended— with the court (or such additional period as or is able to make the payment. (1) by redesignating subsection (o) as sub- ‘‘(C) In the case of a reaffirmation agree- the court, after notice and a hearing and for cause, orders before the expiration of such section (p), and ment under subsection (m)(2), subparagraph period), it shall be presumed that such agree- (2) by inserting after subsection (n) the fol- (B) is not applicable. ment is an undue hardship on the debtor if lowing: ‘‘(6)(A) The statement in support of such ‘‘(o) Notwithstanding subsection (f), if a the debtor’s monthly income less the debt- agreement, which the debtor shall sign and or’s monthly expenses as shown on the debt- person purchases any interest in a consumer date prior to filing with the court, shall con- or’s completed and signed statement in sup- credit transaction that is subject to the sist of the following: port of such agreement required under sub- Truth in Lending Act or any interest in a ‘‘ ‘Part D: Debtor’s Statement in Support section (k)(6)(A) is less than the scheduled consumer credit contract (as defined in sec- of Reaffirmation Agreement. payments on the reaffirmed debt. This pre- tion 433.1 of title 16 of the Code of Federal ‘‘ ‘1. I believe this reaffirmation agreement sumption shall be reviewed by the court. The Regulations (January 1, 2004), as amended will not impose an undue hardship on my de- presumption may be rebutted in writing by from time to time), and if such interest is pendents or me. I can afford to make the the debtor if the statement includes an ex- purchased through a sale under this section, payments on the reaffirmed debt because my planation that identifies additional sources then such person shall remain subject to all monthly income (take home pay plus any of funds to make the payments as agreed claims and defenses that are related to such other income received) is $lll, and my ac- upon under the terms of such agreement. If consumer credit transaction or such con- tual current monthly expenses including the presumption is not rebutted to the satis- sumer credit contract, to the same extent as monthly payments on post-bankruptcy debt faction of the court, the court may dis- such person would be subject to such claims and other reaffirmation agreements total approve such agreement. No agreement shall and defenses of the consumer had such inter- $lll, leaving $lll to make the required be disapproved without notice and a hearing est been purchased at a sale not under this payments on this reaffirmed debt. I under- to the debtor and creditor, and such hearing section.’’. stand that if my income less my monthly ex- shall be concluded before the entry of the SEC. 205. GAO STUDY AND REPORT ON REAFFIR- penses does not leave enough to make the debtor’s discharge. MATION AGREEMENT PROCESS. payments, this reaffirmation agreement is ‘‘(2) This subsection does not apply to reaf- (a) STUDY.—The Comptroller General of presumed to be an undue hardship on me and firmation agreements where the creditor is a the United States shall conduct a study of must be reviewed by the court. However, this credit union, as defined in section the reaffirmation agreement process that oc- presumption may be overcome if I explain to 19(b)(1)(A)(iv) of the Federal Reserve Act.’’. curs under title 11 of the United States Code, the satisfaction of the court how I can afford (b) LAW ENFORCEMENT.— to determine the overall treatment of con- to make the payments here: lll. (1) IN GENERAL.—Chapter 9 of title 18, sumers within the context of such process, ‘‘ ‘2. I received a copy of the Reaffirmation United States Code, is amended by adding at and shall include in such study consideration Disclosure Statement in Part A and a com- the end the following: of— pleted and signed reaffirmation agreement.’. ‘‘§ 158. Designation of United States attorneys (1) the policies and activities of creditors ‘‘(B) Where the debtor is represented by an and agents of the Federal Bureau of Inves- with respect to reaffirmation agreements; attorney and is reaffirming a debt owed to a tigation to address abusive reaffirmations and creditor defined in section 19(b)(1)(A)(iv) of of debt and materially fraudulent state- (2) whether consumers are fully, fairly, and the Federal Reserve Act, the statement of ments in bankruptcy schedules consistently informed of their rights pursu- ant to such title. support of the reaffirmation agreement, ‘‘(a) IN GENERAL.—The Attorney General of (b) REPORT TO THE CONGRESS.—Not later which the debtor shall sign and date prior to the United States shall designate the indi- than 18 months after the date of the enact- filing with the court, shall consist of the fol- viduals described in subsection (b) to have lowing: primary responsibility in carrying out en- ment of this Act, the Comptroller General ‘‘ ‘I believe this reaffirmation agreement is forcement activities in addressing violations shall submit to the President pro tempore of in my financial interest. I can afford to of section 152 or 157 relating to abusive re- the Senate and the Speaker of the House of make the payments on the reaffirmed debt. I affirmations of debt. In addition to address- Representatives a report on the results of received a copy of the Reaffirmation Disclo- ing the violations referred to in the pre- the study conducted under subsection (a), to- sure Statement in Part A and a completed ceding sentence, the individuals described gether with recommendations for legislation and signed reaffirmation agreement.’. under subsection (b) shall address violations (if any) to address any abusive or coercive ‘‘(7) The motion that may be used if ap- of section 152 or 157 relating to materially tactics found in connection with the reaffir- proval of such agreement by the court is re- fraudulent statements in bankruptcy sched- mation agreement process that occurs under quired in order for it to be effective, shall be ules that are intentionally false or inten- title 11 of the United States Code. signed and dated by the movant and shall tionally misleading. Subtitle B—Priority Child Support consist of the following: ‘‘(b) UNITED STATES ATTORNEYS AND SEC. 211. DEFINITION OF DOMESTIC SUPPORT ‘‘ ‘Part E: Motion for Court Approval (To AGENTS OF THE FEDERAL BUREAU OF INVES- OBLIGATION. be completed only if the debtor is not rep- TIGATION.—The individuals referred to in Section 101 of title 11, United States Code, resented by an attorney.). I (we), the debt- subsection (a) are— is amended— or(s), affirm the following to be true and cor- ‘‘(1) the United States attorney for each ju- (1) by striking paragraph (12A); and rect: dicial district of the United States; and (2) by inserting after paragraph (14) the fol- ‘‘ ‘I am not represented by an attorney in ‘‘(2) an agent of the Federal Bureau of In- lowing: connection with this reaffirmation agree- vestigation for each field office of the Fed- ‘‘(14A) ‘domestic support obligation’ means ment. eral Bureau of Investigation. a debt that accrues before, on, or after the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00096 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S777 date of the order for relief in a case under tion that funds received under this para- such debtor certifies that all amounts pay- this title, including interest that accrues on graph by a governmental unit under this able under such order or such statute that that debt as provided under applicable non- title after the date of the filing of the peti- are due on or before the date of the certifi- bankruptcy law notwithstanding any other tion be applied and distributed in accordance cation (including amounts due before the pe- provision of this title, that is— with applicable nonbankruptcy law. tition was filed, but only to the extent pro- ‘‘(A) owed to or recoverable by— ‘‘(C) If a trustee is appointed or elected vided for by the plan) have been paid’’ after ‘‘(i) a spouse, former spouse, or child of the under section 701, 702, 703, 1104, 1202, or 1302, ‘‘completion by the debtor of all payments debtor or such child’s parent, legal guardian, the administrative expenses of the trustee under the plan’’; or responsible relative; or allowed under paragraphs (1)(A), (2), and (6) (7) in section 1307(c)— ‘‘(ii) a governmental unit; of section 503(b) shall be paid before payment (A) in paragraph (9), by striking ‘‘or’’ at ‘‘(B) in the nature of alimony, mainte- of claims under subparagraphs (A) and (B), to the end; nance, or support (including assistance pro- the extent that the trustee administers as- (B) in paragraph (10), by striking the pe- vided by a governmental unit) of such sets that are otherwise available for the pay- riod at the end and inserting ‘‘; or’’; and spouse, former spouse, or child of the debtor ment of such claims.’’. (C) by adding at the end the following: or such child’s parent, without regard to SEC. 213. REQUIREMENTS TO OBTAIN CONFIRMA- ‘‘(11) failure of the debtor to pay any do- whether such debt is expressly so designated; TION AND DISCHARGE IN CASES IN- mestic support obligation that first becomes ‘‘(C) established or subject to establish- VOLVING DOMESTIC SUPPORT OBLI- payable after the date of the filing of the pe- GATIONS. ment before, on, or after the date of the tition.’’; Title 11, United States Code, is amended— order for relief in a case under this title, by (8) in section 1322(a)— (1) in section 1129(a), by adding at the end reason of applicable provisions of— (A) in paragraph (2), by striking ‘‘and’’ at ‘‘(i) a separation agreement, divorce de- the following: ‘‘(14) If the debtor is required by a judicial the end; cree, or property settlement agreement; (B) in paragraph (3), by striking the period ‘‘(ii) an order of a court of record; or or administrative order, or by statute, to pay a domestic support obligation, the debt- at the end and inserting ‘‘; and’’; and ‘‘(iii) a determination made in accordance (C) by adding at the end the following: with applicable nonbankruptcy law by a gov- or has paid all amounts payable under such order or such statute for such obligation ‘‘(4) notwithstanding any other provision ernmental unit; and of this section, a plan may provide for less ‘‘(D) not assigned to a nongovernmental that first become payable after the date of the filing of the petition.’’; than full payment of all amounts owed for a entity, unless that obligation is assigned vol- claim entitled to priority under section untarily by the spouse, former spouse, child (2) in section 1208(c)— (A) in paragraph (8), by striking ‘‘or’’ at 507(a)(1)(B) only if the plan provides that all of the debtor, or such child’s parent, legal of the debtor’s projected disposable income guardian, or responsible relative for the pur- the end; (B) in paragraph (9), by striking the period for a 5-year period beginning on the date pose of collecting the debt;’’. that the first payment is due under the plan SEC. 212. PRIORITIES FOR CLAIMS FOR DOMES- at the end and inserting ‘‘; and’’; and (C) by adding at the end the following: will be applied to make payments under the TIC SUPPORT OBLIGATIONS. plan.’’; Section 507(a) of title 11, United States ‘‘(10) failure of the debtor to pay any do- (9) in section 1322(b)— Code, is amended— mestic support obligation that first becomes (A) in paragraph (9), by striking ‘‘; and’’ (1) by striking paragraph (7); payable after the date of the filing of the pe- and inserting a semicolon; (2) by redesignating paragraphs (1) through tition.’’; (B) by redesignating paragraph (10) as (6) as paragraphs (2) through (7), respec- (3) in section 1222(a)— paragraph (11); and tively; (A) in paragraph (2), by striking ‘‘and’’ at (3) in paragraph (2), as so redesignated, by the end; (C) inserting after paragraph (9) the fol- striking ‘‘First’’ and inserting ‘‘Second’’; (B) in paragraph (3), by striking the period lowing: (4) in paragraph (3), as so redesignated, by at the end and inserting ‘‘; and’’; and ‘‘(10) provide for the payment of interest striking ‘‘Second’’ and inserting ‘‘Third’’; (C) by adding at the end the following: accruing after the date of the filing of the (5) in paragraph (4), as so redesignated— ‘‘(4) notwithstanding any other provision petition on unsecured claims that are non- (A) by striking ‘‘Third’’ and inserting of this section, a plan may provide for less dischargeable under section 1328(a), except ‘‘Fourth’’; and than full payment of all amounts owed for a that such interest may be paid only to the (B) by striking the semicolon at the end claim entitled to priority under section extent that the debtor has disposable income and inserting a period; 507(a)(1)(B) only if the plan provides that all available to pay such interest after making (6) in paragraph (5), as so redesignated, by of the debtor’s projected disposable income provision for full payment of all allowed striking ‘‘Fourth’’ and inserting ‘‘Fifth’’; for a 5-year period beginning on the date claims; and’’; (7) in paragraph (6), as so redesignated, by that the first payment is due under the plan (10) in section 1325(a), as amended by sec- striking ‘‘Fifth’’ and inserting ‘‘Sixth’’; will be applied to make payments under the tion 102, by inserting after paragraph (7) the (8) in paragraph (7), as so redesignated, by plan.’’; following: striking ‘‘Sixth’’ and inserting ‘‘Seventh’’; (4) in section 1222(b)— ‘‘(8) the debtor has paid all amounts that and (A) in paragraph (10), by striking ‘‘and’’ at are required to be paid under a domestic sup- (9) by inserting before paragraph (2), as so the end; port obligation and that first become pay- redesignated, the following: (B) by redesignating paragraph (11) as able after the date of the filing of the peti- ‘‘(1) First: paragraph (12); and tion if the debtor is required by a judicial or ‘‘(A) Allowed unsecured claims for domes- (C) by inserting after paragraph (10) the administrative order, or by statute, to pay tic support obligations that, as of the date of following: such domestic support obligation; and’’; the filing of the petition in a case under this ‘‘(11) provide for the payment of interest (11) in section 1328(a), in the matter pre- title, are owed to or recoverable by a spouse, accruing after the date of the filing of the ceding paragraph (1), by inserting ‘‘, and in former spouse, or child of the debtor, or such petition on unsecured claims that are non- the case of a debtor who is required by a ju- child’s parent, legal guardian, or responsible dischargeable under section 1228(a), except dicial or administrative order, or by statute, relative, without regard to whether the that such interest may be paid only to the to pay a domestic support obligation, after claim is filed by such person or is filed by a extent that the debtor has disposable income such debtor certifies that all amounts pay- governmental unit on behalf of such person, available to pay such interest after making able under such order or such statute that on the condition that funds received under provision for full payment of all allowed are due on or before the date of the certifi- this paragraph by a governmental unit under claims; and’’; cation (including amounts due before the pe- this title after the date of the filing of the (5) in section 1225(a)— tition was filed, but only to the extent pro- petition shall be applied and distributed in (A) in paragraph (5), by striking ‘‘and’’ at vided for by the plan) have been paid’’ after accordance with applicable nonbankruptcy the end; ‘‘completion by the debtor of all payments law. (B) in paragraph (6), by striking the period under the plan’’. ‘‘(B) Subject to claims under subparagraph at the end and inserting ‘‘; and’’; and SEC. 214. EXCEPTIONS TO AUTOMATIC STAY IN (A), allowed unsecured claims for domestic (C) by adding at the end the following: DOMESTIC SUPPORT OBLIGATION support obligations that, as of the date of ‘‘(7) the debtor has paid all amounts that PROCEEDINGS. the filing of the petition, are assigned by a are required to be paid under a domestic sup- Section 362(b) of title 11, United States spouse, former spouse, child of the debtor, or port obligation and that first become pay- Code, is amended by striking paragraph (2) such child’s parent, legal guardian, or re- able after the date of the filing of the peti- and inserting the following: sponsible relative to a governmental unit tion if the debtor is required by a judicial or ‘‘(2) under subsection (a)— (unless such obligation is assigned volun- administrative order, or by statute, to pay ‘‘(A) of the commencement or continuation tarily by the spouse, former spouse, child, such domestic support obligation.’’; of a civil action or proceeding— parent, legal guardian, or responsible rel- (6) in section 1228(a), in the matter pre- ‘‘(i) for the establishment of paternity; ative of the child for the purpose of col- ceding paragraph (1), by inserting ‘‘, and in ‘‘(ii) for the establishment or modification lecting the debt) or are owed directly to or the case of a debtor who is required by a ju- of an order for domestic support obligations; recoverable by a governmental unit under dicial or administrative order, or by statute, ‘‘(iii) concerning child custody or visita- applicable nonbankruptcy law, on the condi- to pay a domestic support obligation, after tion;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00097 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S778 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(iv) for the dissolution of a marriage, ex- SEC. 219. COLLECTION OF CHILD SUPPORT. use the services of the State child support cept to the extent that such proceeding (a) DUTIES OF TRUSTEE UNDER CHAPTER 7.— enforcement agency established under sec- seeks to determine the division of property Section 704 of title 11, United States Code, as tions 464 and 466 of the Social Security Act that is property of the estate; or amended by section 102, is amended— for the State in which such holder resides, ‘‘(v) regarding domestic violence; (1) in subsection (a)— for assistance in collecting child support ‘‘(B) of the collection of a domestic support (A) in paragraph (8), by striking ‘‘and’’ at during and after the case under this title; obligation from property that is not prop- the end; and erty of the estate; (B) in paragraph (9), by striking the period ‘‘(ii) include in the notice required by ‘‘(C) with respect to the withholding of in- and inserting a semicolon; and clause (i) the address and telephone number come that is property of the estate or prop- (C) by adding at the end the following: of such State child support enforcement erty of the debtor for payment of a domestic ‘‘(10) if with respect to the debtor there is agency; support obligation under a judicial or admin- a claim for a domestic support obligation, ‘‘(B)(i) provide written notice to such State istrative order or a statute; provide the applicable notice specified in child support enforcement agency of such ‘‘(D) of the withholding, suspension, or re- subsection (c); and’’; and claim; and striction of a driver’s license, a professional (2) by adding at the end the following: ‘‘(ii) include in the notice required by or occupational license, or a recreational li- ‘‘(c)(1) In a case described in subsection clause (i) the name, address, and telephone cense, under State law, as specified in sec- (a)(10) to which subsection (a)(10) applies, the number of such holder; and tion 466(a)(16) of the Social Security Act; trustee shall— ‘‘(C) at such time as the debtor is granted ‘‘(E) of the reporting of overdue support ‘‘(A)(i) provide written notice to the holder a discharge under section 1141, provide writ- owed by a parent to any consumer reporting of the claim described in subsection (a)(10) of ten notice to such holder and to such State agency as specified in section 466(a)(7) of the such claim and of the right of such holder to child support enforcement agency of— Social Security Act; use the services of the State child support ‘‘(i) the granting of the discharge; ‘‘(F) of the interception of a tax refund, as enforcement agency established under sec- ‘‘(ii) the last recent known address of the specified in sections 464 and 466(a)(3) of the tions 464 and 466 of the Social Security Act debtor; Social Security Act or under an analogous for the State in which such holder resides, ‘‘(iii) the last recent known name and ad- State law; or for assistance in collecting child support dress of the debtor’s employer; and ‘‘(G) of the enforcement of a medical obli- during and after the case under this title; ‘‘(iv) the name of each creditor that holds gation, as specified under title IV of the So- ‘‘(ii) include in the notice provided under a claim that— cial Security Act;’’. clause (i) the address and telephone number ‘‘(I) is not discharged under paragraph (2), of such State child support enforcement SEC. 215. NONDISCHARGEABILITY OF CERTAIN (4), or (14A) of section 523(a); or DEBTS FOR ALIMONY, MAINTE- agency; and ‘‘(II) was reaffirmed by the debtor under NANCE, AND SUPPORT. ‘‘(iii) include in the notice provided under section 524(c). clause (i) an explanation of the rights of such Section 523 of title 11, United States Code, ‘‘(2)(A) The holder of a claim described in holder to payment of such claim under this is amended— subsection (a)(8) or the State child enforce- chapter; (1) in subsection (a)— ment support agency of the State in which ‘‘(B)(i) provide written notice to such State (A) by striking paragraph (5) and inserting such holder resides may request from a cred- child support enforcement agency of such the following: itor described in paragraph (1)(C)(iv) the last claim; and ‘‘(5) for a domestic support obligation;’’; known address of the debtor. ‘‘(ii) include in the notice provided under ‘‘(B) Notwithstanding any other provision and clause (i) the name, address, and telephone of law, a creditor that makes a disclosure of (B) by striking paragraph (18); number of such holder; and a last known address of a debtor in connec- (2) in subsection (c), by striking ‘‘(6), or ‘‘(C) at such time as the debtor is granted tion with a request made under subpara- (15)’’ each place it appears and inserting ‘‘or a discharge under section 727, provide writ- graph (A) shall not be liable by reason of (6)’’; and ten notice to such holder and to such State making such disclosure.’’. (3) in paragraph (15), as added by Public child support enforcement agency of— (c) DUTIES OF TRUSTEE UNDER CHAPTER Law 103–394 (108 Stat. 4133)— ‘‘(i) the granting of the discharge; 12.—Section 1202 of title 11, United States (A) by inserting ‘‘to a spouse, former ‘‘(ii) the last recent known address of the Code, is amended— spouse, or child of the debtor and’’ before debtor; (1) in subsection (b)— ‘‘not of the kind’’; ‘‘(iii) the last recent known name and ad- (A) in paragraph (4), by striking ‘‘and’’ at (B) by inserting ‘‘or’’ after ‘‘court of dress of the debtor’s employer; and the end; record,’’; and ‘‘(iv) the name of each creditor that holds (B) in paragraph (5), by striking the period (C) by striking ‘‘unless—’’ and all that fol- a claim that— and inserting ‘‘; and’’; and lows through the end of the paragraph and ‘‘(I) is not discharged under paragraph (2), (C) by adding at the end the following: inserting a semicolon. (4), or (14A) of section 523(a); or ‘‘(6) if with respect to the debtor there is a SEC. 216. CONTINUED LIABILITY OF PROPERTY. ‘‘(II) was reaffirmed by the debtor under claim for a domestic support obligation, pro- Section 522 of title 11, United States Code, section 524(c). vide the applicable notice specified in sub- is amended— ‘‘(2)(A) The holder of a claim described in section (c).’’; and (1) in subsection (c), by striking paragraph subsection (a)(10) or the State child support (2) by adding at the end the following: (1) and inserting the following: enforcement agency of the State in which ‘‘(c)(1) In a case described in subsection ‘‘(1) a debt of a kind specified in paragraph such holder resides may request from a cred- (b)(6) to which subsection (b)(6) applies, the (1) or (5) of section 523(a) (in which case, not- itor described in paragraph (1)(C)(iv) the last trustee shall— withstanding any provision of applicable known address of the debtor. ‘‘(A)(i) provide written notice to the holder nonbankruptcy law to the contrary, such ‘‘(B) Notwithstanding any other provision of the claim described in subsection (b)(6) of property shall be liable for a debt of a kind of law, a creditor that makes a disclosure of such claim and of the right of such holder to specified in section 523(a)(5));’’; a last known address of a debtor in connec- use the services of the State child support (2) in subsection (f)(1)(A), by striking the tion with a request made under subpara- enforcement agency established under sec- dash and all that follows through the end of graph (A) shall not be liable by reason of tions 464 and 466 of the Social Security Act the subparagraph and inserting ‘‘of a kind making such disclosure.’’. for the State in which such holder resides, that is specified in section 523(a)(5); or’’; and (b) DUTIES OF TRUSTEE UNDER CHAPTER for assistance in collecting child support (3) in subsection (g)(2), by striking ‘‘sub- 11.—Section 1106 of title 11, United States during and after the case under this title; section (f)(2)’’ and inserting ‘‘subsection Code, is amended— and (f)(1)(B)’’. (1) in subsection (a)— ‘‘(ii) include in the notice provided under (A) in paragraph (6), by striking ‘‘and’’ at clause (i) the address and telephone number SEC. 217. PROTECTION OF DOMESTIC SUPPORT the end; of such State child support enforcement CLAIMS AGAINST PREFERENTIAL agency; TRANSFER MOTIONS. (B) in paragraph (7), by striking the period and inserting ‘‘; and’’; and ‘‘(B)(i) provide written notice to such State Section 547(c)(7) of title 11, United States (C) by adding at the end the following: child support enforcement agency of such Code, is amended to read as follows: ‘‘(8) if with respect to the debtor there is a claim; and ‘‘(7) to the extent such transfer was a bona claim for a domestic support obligation, pro- ‘‘(ii) include in the notice provided under fide payment of a debt for a domestic sup- vide the applicable notice specified in sub- clause (i) the name, address, and telephone port obligation;’’. section (c).’’; and number of such holder; and SEC. 218. DISPOSABLE INCOME DEFINED. (2) by adding at the end the following: ‘‘(C) at such time as the debtor is granted Section 1225(b)(2)(A) of title 11, United ‘‘(c)(1) In a case described in subsection a discharge under section 1228, provide writ- States Code, is amended by inserting ‘‘or for (a)(8) to which subsection (a)(8) applies, the ten notice to such holder and to such State a domestic support obligation that first be- trustee shall— child support enforcement agency of— comes payable after the date of the filing of ‘‘(A)(i) provide written notice to the holder ‘‘(i) the granting of the discharge; the petition’’ after ‘‘dependent of the debt- of the claim described in subsection (a)(8) of ‘‘(ii) the last recent known address of the or’’. such claim and of the right of such holder to debtor;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00098 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S779 ‘‘(iii) the last recent known name and ad- SEC. 220. NONDISCHARGEABILITY OF CERTAIN (B) by striking paragraph (2); dress of the debtor’s employer; and EDUCATIONAL BENEFITS AND (5) in subsection (e)— ‘‘(iv) the name of each creditor that holds LOANS. (A) by striking paragraph (2); and a claim that— Section 523(a) of title 11, United States (B) by adding at the end the following: ‘‘(I) is not discharged under paragraph (2), Code, is amended by striking paragraph (8) ‘‘(2)(A) A bankruptcy petition preparer (4), or (14A) of section 523(a); or and inserting the following: may not offer a potential bankruptcy debtor ‘‘(II) was reaffirmed by the debtor under ‘‘(8) unless excepting such debt from dis- any legal advice, including any legal advice section 524(c). charge under this paragraph would impose described in subparagraph (B). an undue hardship on the debtor and the ‘‘(B) The legal advice referred to in sub- ‘‘(2)(A) The holder of a claim described in debtor’s dependents, for— paragraph (A) includes advising the debtor— subsection (b)(6) or the State child support ‘‘(A)(i) an educational benefit overpayment ‘‘(i) whether— enforcement agency of the State in which or loan made, insured, or guaranteed by a ‘‘(I) to file a petition under this title; or such holder resides may request from a cred- governmental unit, or made under any pro- ‘‘(II) commencing a case under chapter 7, itor described in paragraph (1)(C)(iv) the last gram funded in whole or in part by a govern- 11, 12, or 13 is appropriate; known address of the debtor. mental unit or nonprofit institution; or ‘‘(ii) whether the debtor’s debts will be dis- ‘‘(B) Notwithstanding any other provision ‘‘(ii) an obligation to repay funds received charged in a case under this title; ‘‘(iii) whether the debtor will be able to re- of law, a creditor that makes a disclosure of as an educational benefit, scholarship, or sti- tain the debtor’s home, car, or other prop- a last known address of a debtor in connec- pend; or erty after commencing a case under this tion with a request made under subpara- ‘‘(B) any other educational loan that is a qualified education loan, as defined in sec- title; graph (A) shall not be liable by reason of ‘‘(iv) concerning— making that disclosure.’’. tion 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an indi- ‘‘(I) the tax consequences of a case brought (d) DUTIES OF TRUSTEE UNDER CHAPTER vidual;’’. under this title; or ‘‘(II) the dischargeability of tax claims; 13.—Section 1302 of title 11, United States Subtitle C—Other Consumer Protections Code, is amended— ‘‘(v) whether the debtor may or should (1) in subsection (b)— SEC. 221. AMENDMENTS TO DISCOURAGE ABU- promise to repay debts to a creditor or enter SIVE BANKRUPTCY FILINGS. (A) in paragraph (4), by striking ‘‘and’’ at into a reaffirmation agreement with a cred- the end; Section 110 of title 11, United States Code, itor to reaffirm a debt; (B) in paragraph (5), by striking the period is amended— ‘‘(vi) concerning how to characterize the and inserting ‘‘; and’’; and (1) in subsection (a)(1), by striking ‘‘or an nature of the debtor’s interests in property (C) by adding at the end the following: employee of an attorney’’ and inserting ‘‘for or the debtor’s debts; or ‘‘(6) if with respect to the debtor there is a the debtor or an employee of such attorney ‘‘(vii) concerning bankruptcy procedures claim for a domestic support obligation, pro- under the direct supervision of such attor- and rights.’’; vide the applicable notice specified in sub- ney’’; (6) in subsection (f)— section (d).’’; and (2) in subsection (b)— (A) by striking ‘‘(f)(1)’’ and inserting ‘‘(f)’’; (2) by adding at the end the following: (A) in paragraph (1), by adding at the end and the following: ‘‘If a bankruptcy petition pre- (B) by striking paragraph (2); ‘‘(d)(1) In a case described in subsection parer is not an individual, then an officer, (7) in subsection (g)— (b)(6) to which subsection (b)(6) applies, the principal, responsible person, or partner of (A) by striking ‘‘(g)(1)’’ and inserting ‘‘(g)’’; trustee shall— the bankruptcy petition preparer shall be re- and ‘‘(A)(i) provide written notice to the holder quired to— (B) by striking paragraph (2); of the claim described in subsection (b)(6) of ‘‘(A) sign the document for filing; and (8) in subsection (h)— such claim and of the right of such holder to ‘‘(B) print on the document the name and (A) by redesignating paragraphs (1) use the services of the State child support address of that officer, principal, responsible through (4) as paragraphs (2) through (5), re- enforcement agency established under sec- person, or partner.’’; and spectively; tions 464 and 466 of the Social Security Act (B) by striking paragraph (2) and inserting (B) by inserting before paragraph (2), as so for the State in which such holder resides, the following: redesignated, the following: for assistance in collecting child support ‘‘(2)(A) Before preparing any document for ‘‘(1) The Supreme Court may promulgate during and after the case under this title; filing or accepting any fees from a debtor, rules under section 2075 of title 28, or the Ju- and the bankruptcy petition preparer shall pro- dicial Conference of the United States may ‘‘(ii) include in the notice provided under vide to the debtor a written notice which prescribe guidelines, for setting a maximum clause (i) the address and telephone number shall be on an official form prescribed by the allowable fee chargeable by a bankruptcy pe- of such State child support enforcement Judicial Conference of the United States in tition preparer. A bankruptcy petition pre- agency; accordance with rule 9009 of the Federal parer shall notify the debtor of any such ‘‘(B)(i) provide written notice to such State Rules of Bankruptcy Procedure. maximum amount before preparing any doc- child support enforcement agency of such ‘‘(B) The notice under subparagraph (A)— ument for filing for a debtor or accepting claim; and ‘‘(i) shall inform the debtor in simple lan- any fee from the debtor.’’; ‘‘(ii) include in the notice provided under guage that a bankruptcy petition preparer is (C) in paragraph (2), as so redesignated— clause (i) the name, address, and telephone not an attorney and may not practice law or (i) by striking ‘‘Within 10 days after the number of such holder; and give legal advice; date of the filing of a petition, a bankruptcy ‘‘(C) at such time as the debtor is granted ‘‘(ii) may contain a description of examples petition preparer shall file a’’ and inserting a discharge under section 1328, provide writ- of legal advice that a bankruptcy petition ‘‘A’’; (ii) by inserting ‘‘by the bankruptcy peti- ten notice to such holder and to such State preparer is not authorized to give, in addi- tion preparer shall be filed together with the child support enforcement agency of— tion to any advice that the preparer may not petition,’’ after ‘‘perjury’’; and ‘‘(i) the granting of the discharge; give by reason of subsection (e)(2); and (iii) by adding at the end the following: ‘‘If ‘‘(ii) the last recent known address of the ‘‘(iii) shall— rules or guidelines setting a maximum fee debtor; ‘‘(I) be signed by the debtor and, under pen- for services have been promulgated or pre- ‘‘(iii) the last recent known name and ad- alty of perjury, by the bankruptcy petition scribed under paragraph (1), the declaration dress of the debtor’s employer; and preparer; and under this paragraph shall include a certifi- ‘‘(iv) the name of each creditor that holds ‘‘(II) be filed with any document for fil- cation that the bankruptcy petition preparer a claim that— ing.’’; ‘‘(I) is not discharged under paragraph (2) complied with the notification requirement (3) in subsection (c)— under paragraph (1).’’; or (4) of section 523(a); or (A) in paragraph (2)— (D) by striking paragraph (3), as so redesig- ‘‘(II) was reaffirmed by the debtor under (i) by striking ‘‘(2) For purposes’’ and in- nated, and inserting the following: section 524(c). serting ‘‘(2)(A) Subject to subparagraph (B), ‘‘(3)(A) The court shall disallow and order ‘‘(2)(A) The holder of a claim described in for purposes’’; and the immediate turnover to the bankruptcy subsection (b)(6) or the State child support (ii) by adding at the end the following: trustee any fee referred to in paragraph (2) enforcement agency of the State in which ‘‘(B) If a bankruptcy petition preparer is found to be in excess of the value of any such holder resides may request from a cred- not an individual, the identifying number of services— itor described in paragraph (1)(C)(iv) the last the bankruptcy petition preparer shall be ‘‘(i) rendered by the bankruptcy petition the Social Security account number of the known address of the debtor. preparer during the 12-month period imme- officer, principal, responsible person, or part- diately preceding the date of the filing of the ‘‘(B) Notwithstanding any other provision ner of the bankruptcy petition preparer.’’; petition; or of law, a creditor that makes a disclosure of and ‘‘(ii) found to be in violation of any rule or a last known address of a debtor in connec- (B) by striking paragraph (3); guideline promulgated or prescribed under tion with a request made under subpara- (4) in subsection (d)— paragraph (1). graph (A) shall not be liable by reason of (A) by striking ‘‘(d)(1)’’ and inserting ‘‘(d)’’; ‘‘(B) All fees charged by a bankruptcy peti- making that disclosure.’’. and tion preparer may be forfeited in any case in

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00099 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S780 CONGRESSIONAL RECORD — SENATE February 1, 2005 which the bankruptcy petition preparer fails priation for the amount paid out of such ap- Revenue Code of 1986, or otherwise, shall not to comply with this subsection or subsection propriation for expenses of the operation and cease to qualify for exemption under para- (b), (c), (d), (e), (f), or (g). maintenance of the courts of the United graph (3)(C) or subsection (d)(12) by reason of ‘‘(C) An individual may exempt any funds States.’’. such direct transfer. recovered under this paragraph under section SEC. 222. SENSE OF CONGRESS. ‘‘(D)(i) Any distribution that qualifies as 522(b).’’; and It is the sense of Congress that States an eligible rollover distribution within the (E) in paragraph (4), as so redesignated, by should develop curricula relating to the sub- meaning of section 402(c) of the Internal Rev- striking ‘‘or the United States trustee’’ and ject of personal finance, designed for use in enue Code of 1986 or that is described in inserting ‘‘the United States trustee (or the elementary and secondary schools. clause (ii) shall not cease to qualify for ex- bankruptcy administrator, if any) or the SEC. 223. ADDITIONAL AMENDMENTS TO TITLE emption under paragraph (3)(C) or subsection court, on the initiative of the court,’’; 11, UNITED STATES CODE. (d)(12) by reason of such distribution. (9) in subsection (i)(1), by striking the mat- Section 507(a) of title 11, United States ‘‘(ii) A distribution described in this clause ter preceding subparagraph (A) and inserting Code, as amended by section 212, is amended is an amount that— the following: by inserting after paragraph (9) the fol- ‘‘(I) has been distributed from a fund or ac- ‘‘(i)(1) If a bankruptcy petition preparer lowing: count that is exempt from taxation under violates this section or commits any act that ‘‘(10) Tenth, allowed claims for death or section 401, 403, 408, 408A, 414, 457, or 501(a) of the court finds to be fraudulent, unfair, or personal injury resulting from the operation the Internal Revenue Code of 1986; and deceptive, on the motion of the debtor, trust- of a motor vehicle or vessel if such operation ‘‘(II) to the extent allowed by law, is depos- ee, United States trustee (or the bankruptcy was unlawful because the debtor was intoxi- ited in such a fund or account not later than administrator, if any), and after notice and a cated from using alcohol, a drug, or another 60 days after the distribution of such hearing, the court shall order the bank- substance.’’. amount.’’; and ruptcy petition preparer to pay to the debt- (2) in subsection (d)— or—’’; SEC. 224. PROTECTION OF RETIREMENT SAVINGS IN BANKRUPTCY. (A) in the matter preceding paragraph (1), (10) in subsection (j)— (a) IN GENERAL.—Section 522 of title 11, by striking ‘‘subsection (b)(1)’’ and inserting (A) in paragraph (2)— United States Code, is amended— ‘‘subsection (b)(2)’’; and (i) in subparagraph (A)(i)(I), by striking ‘‘a (1) in subsection (b)— (B) by adding at the end the following: violation of which subjects a person to crimi- (A) in paragraph (2)— ‘‘(12) Retirement funds to the extent that nal penalty’’; (i) in subparagraph (A), by striking ‘‘and’’ those funds are in a fund or account that is (ii) in subparagraph (B)— at the end; exempt from taxation under section 401, 403, (I) by striking ‘‘or has not paid a penalty’’ (ii) in subparagraph (B), by striking the pe- 408, 408A, 414, 457, or 501(a) of the Internal and inserting ‘‘has not paid a penalty’’; and riod at the end and inserting ‘‘; and’’; Revenue Code of 1986.’’. (II) by inserting ‘‘or failed to disgorge all (iii) by adding at the end the following: (b) AUTOMATIC STAY.—Section 362(b) of fees ordered by the court’’ after ‘‘a penalty ‘‘(C) retirement funds to the extent that title 11, United States Code, is amended— imposed under this section,’’; those funds are in a fund or account that is (1) in paragraph (17), by striking ‘‘or’’ at (B) by redesignating paragraph (3) as para- exempt from taxation under section 401, 403, the end; graph (4); and 408, 408A, 414, 457, or 501(a) of the Internal (2) in paragraph (18), by striking the period (C) by inserting after paragraph (2) the fol- Revenue Code of 1986.’’; and and inserting a semicolon; and lowing: (iv) by striking ‘‘(2)(A) any property’’ and (3) by inserting after paragraph (18) the fol- ‘‘(3) The court, as part of its contempt lowing: power, may enjoin a bankruptcy petition inserting: ‘‘(3) Property listed in this paragraph is— ‘‘(19) under subsection (a), of withholding preparer that has failed to comply with a of income from a debtor’s wages and collec- previous order issued under this section. The ‘‘(A) any property’’; (B) by striking paragraph (1) and inserting: tion of amounts withheld, under the debtor’s injunction under this paragraph may be agreement authorizing that withholding and issued on the motion of the court, the trust- ‘‘(2) Property listed in this paragraph is property that is specified under subsection collection for the benefit of a pension, profit- ee, or the United States trustee (or the bank- sharing, stock bonus, or other plan estab- ruptcy administrator, if any).’’; and (d), unless the State law that is applicable to the debtor under paragraph (3)(A) specifi- lished under section 401, 403, 408, 408A, 414, (11) by adding at the end the following: 457, or 501(c) of the Internal Revenue Code of ‘‘(l)(1) A bankruptcy petition preparer who cally does not so authorize.’’; 1986, that is sponsored by the employer of the fails to comply with any provision of sub- (C) by striking ‘‘(b) Notwithstanding’’ and debtor, or an affiliate, successor, or prede- section (b), (c), (d), (e), (f), (g), or (h) may be inserting ‘‘(b)(1) Notwithstanding’’; cessor of such employer— fined not more than $500 for each such fail- (D) by striking ‘‘paragraph (2)’’ each place ‘‘(A) to the extent that the amounts with- ure. it appears and inserting ‘‘paragraph (3)’’; ‘‘(2) The court shall triple the amount of a (E) by striking ‘‘paragraph (1)’’ each place held and collected are used solely for pay- fine assessed under paragraph (1) in any case it appears and inserting ‘‘paragraph (2)’’; ments relating to a loan from a plan under in which the court finds that a bankruptcy (F) by striking ‘‘Such property is—’’; and section 408(b)(1) of the Employee Retirement petition preparer— (G) by adding at the end the following: Income Security Act of 1974 or is subject to ‘‘(A) advised the debtor to exclude assets ‘‘(4) For purposes of paragraph (3)(C) and section 72(p) of the Internal Revenue Code of or income that should have been included on subsection (d)(12), the following shall apply: 1986; or applicable schedules; ‘‘(A) If the retirement funds are in a retire- ‘‘(B) a loan from a thrift savings plan per- ‘‘(B) advised the debtor to use a false So- ment fund that has received a favorable de- mitted under subchapter III of chapter 84 of cial Security account number; termination under section 7805 of the Inter- title 5, that satisfies the requirements of sec- ‘‘(C) failed to inform the debtor that the nal Revenue Code of 1986, and that deter- tion 8433(g) of such title; debtor was filing for relief under this title; mination is in effect as of the date of the fil- but nothing in this paragraph may be con- or ing of the petition in a case under this title, strued to provide that any loan made under ‘‘(D) prepared a document for filing in a those funds shall be presumed to be exempt a governmental plan under section 414(d), or manner that failed to disclose the identity of from the estate. a contract or account under section 403(b), of the bankruptcy petition preparer. ‘‘(B) If the retirement funds are in a retire- the Internal Revenue Code of 1986 con- ‘‘(3) A debtor, trustee, creditor, or United ment fund that has not received a favorable stitutes a claim or a debt under this title;’’. States trustee (or the bankruptcy adminis- determination under such section 7805, those (c) EXCEPTIONS TO DISCHARGE.—Section trator, if any) may file a motion for an order funds are exempt from the estate if the debt- 523(a) of title 11, United States Code, as imposing a fine on the bankruptcy petition or demonstrates that— amended by section 215, is amended by in- preparer for any violation of this section. ‘‘(i) no prior determination to the contrary serting after paragraph (17) the following: ‘‘(4)(A) Fines imposed under this sub- has been made by a court or the Internal ‘‘(18) owed to a pension, profit-sharing, section in judicial districts served by United Revenue Service; and stock bonus, or other plan established under States trustees shall be paid to the United ‘‘(ii)(I) the retirement fund is in substan- section 401, 403, 408, 408A, 414, 457, or 501(c) of States trustee, who shall deposit an amount tial compliance with the applicable require- the Internal Revenue Code of 1986, under— equal to such fines in a special account of ments of the Internal Revenue Code of 1986; ‘‘(A) a loan permitted under section the United States Trustee System Fund re- or 408(b)(1) of the Employee Retirement Income ferred to in section 586(e)(2) of title 28. ‘‘(II) the retirement fund fails to be in sub- Security Act of 1974, or subject to section Amounts deposited under this subparagraph stantial compliance with the applicable re- 72(p) of the Internal Revenue Code of 1986; or shall be available to fund the enforcement of quirements of the Internal Revenue Code of ‘‘(B) a loan from a thrift savings plan per- this section on a national basis. 1986 and the debtor is not materially respon- mitted under subchapter III of chapter 84 of ‘‘(B) Fines imposed under this subsection sible for that failure. title 5, that satisfies the requirements of sec- in judicial districts served by bankruptcy ad- ‘‘(C) A direct transfer of retirement funds tion 8433(g) of such title; ministrators shall be deposited as offsetting from 1 fund or account that is exempt from but nothing in this paragraph may be con- receipts to the fund established under sec- taxation under section 401, 403, 408, 408A, 414, strued to provide that any loan made under tion 1931 of title 28, and shall remain avail- 457, or 501(a) of the Internal Revenue Code of a governmental plan under section 414(d), or able until expended to reimburse any appro- 1986, under section 401(a)(31) of the Internal a contract or account under section 403(b), of

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00100 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S781 the Internal Revenue Code of 1986 con- 529(b)(7) of such Code with respect to such or any affiliate or subsidiary of such deposi- stitutes a claim or a debt under this title; beneficiary, as adjusted beginning on the tory institution or credit union; or or’’. date of the filing of the petition in a case ‘‘(E) an author, publisher, distributor, or (d) PLAN CONTENTS.—Section 1322 of title under this title by the annual increase or de- seller of works subject to copyright protec- 11, United States Code, is amended by adding crease (rounded to the nearest tenth of 1 per- tion under title 17, when acting in such ca- at the end the following: cent) in the education expenditure category pacity.’’. ‘‘(f) A plan may not materially alter the of the Consumer Price Index prepared by the (b) CONFORMING AMENDMENT.—Section terms of a loan described in section 362(b)(19) Department of Labor; and 104(b) of title 11, United States Code, is and any amounts required to repay such loan ‘‘(C) in the case of funds paid or contrib- amended by inserting ‘‘101(3),’’ after ‘‘sec- shall not constitute ‘disposable income’ uted to such program having the same des- tions’’ each place it appears. under section 1325.’’. ignated beneficiary not earlier than 720 days SEC. 227. RESTRICTIONS ON DEBT RELIEF AGEN- (e) ASSET LIMITATION.— nor later than 365 days before such date, only CIES. (1) LIMITATION.—Section 522 of title 11, so much of such funds as does not exceed (a) ENFORCEMENT.—Subchapter II of chap- United States Code, is amended by adding at $5,000;’’; and ter 5 of title 11, United States Code, is the end the following: (2) by adding at the end the following: amended by adding at the end the following: ‘‘(n) For assets in individual retirement ac- ‘‘(e) In determining whether any of the re- counts described in section 408 or 408A of the ‘‘§ 526. Restrictions on debt relief agencies lationships specified in paragraph (5)(A) or Internal Revenue Code of 1986, other than a ‘‘(a) A debt relief agency shall not— (6)(A) of subsection (b) exists, a legally simplified employee pension under section ‘‘(1) fail to perform any service that such adopted child of an individual (and a child 408(k) of such Code or a simple retirement agency informed an assisted person or pro- who is a member of an individual’s house- account under section 408(p) of such Code, spective assisted person it would provide in hold, if placed with such individual by an au- the aggregate value of such assets exempted connection with a case or proceeding under under this section, without regard to thorized placement agency for legal adoption this title; amounts attributable to rollover contribu- by such individual), or a foster child of an in- ‘‘(2) make any statement, or counsel or ad- tions under section 402(c), 402(e)(6), 403(a)(4), dividual (if such child has as the child’s prin- vise any assisted person or prospective as- 403(a)(5), and 403(b)(8) of the Internal Rev- cipal place of abode the home of the debtor sisted person to make a statement in a docu- enue Code of 1986, and earnings thereon, and is a member of the debtor’s household) ment filed in a case or proceeding under this shall not exceed $1,000,000 in a case filed by shall be treated as a child of such individual title, that is untrue and misleading, or that a debtor who is an individual, except that by blood.’’. upon the exercise of reasonable care, should such amount may be increased if the inter- (b) DEBTOR’S DUTIES.—Section 521 of title have been known by such agency to be un- ests of justice so require.’’. 11, United States Code, as amended by sec- true or misleading; (2) ADJUSTMENT OF DOLLAR AMOUNTS.— tion 106, is amended by adding at the end the ‘‘(3) misrepresent to any assisted person or Paragraphs (1) and (2) of section 104(b) of following: prospective assisted person, directly or indi- title 11, United States Code, are amended by ‘‘(c) In addition to meeting the require- rectly, affirmatively or by material omis- inserting ‘‘522(n),’’ after ‘‘522(d),’’. ments under subsection (a), a debtor shall sion, with respect to— file with the court a record of any interest SEC. 225. PROTECTION OF EDUCATION SAVINGS ‘‘(A) the services that such agency will IN BANKRUPTCY. that a debtor has in an education individual provide to such person; or (a) EXCLUSIONS.—Section 541 of title 11, retirement account (as defined in section ‘‘(B) the benefits and risks that may result United States Code, is amended— 530(b)(1) of the Internal Revenue Code of 1986) if such person becomes a debtor in a case (1) in subsection (b)— or under a qualified State tuition program under this title; or (A) in paragraph (4), by striking ‘‘or’’ at (as defined in section 529(b)(1) of such ‘‘(4) advise an assisted person or prospec- the end; Code).’’. tive assisted person to incur more debt in (B) by redesignating paragraph (5) as para- SEC. 226. DEFINITIONS. contemplation of such person filing a case graph (9); and (a) DEFINITIONS.—Section 101 of title 11, under this title or to pay an attorney or (C) by inserting after paragraph (4) the fol- United States Code, is amended— bankruptcy petition preparer fee or charge lowing: (1) by inserting after paragraph (2) the fol- for services performed as part of preparing ‘‘(5) funds placed in an education indi- lowing: for or representing a debtor in a case under vidual retirement account (as defined in sec- ‘‘(3) ‘assisted person’ means any person this title. tion 530(b)(1) of the Internal Revenue Code of whose debts consist primarily of consumer ‘‘(b) Any waiver by any assisted person of 1986) not later than 365 days before the date debts and the value of whose nonexempt any protection or right provided under this of the filing of the petition in a case under property is less than $150,000;’’; section shall not be enforceable against the this title, but— (2) by inserting after paragraph (4) the fol- debtor by any Federal or State court or any ‘‘(A) only if the designated beneficiary of lowing: other person, but may be enforced against a such account was a child, stepchild, grand- ‘‘(4A) ‘bankruptcy assistance’ means any debt relief agency. child, or stepgrandchild of the debtor for the goods or services sold or otherwise provided ‘‘(c)(1) Any contract for bankruptcy assist- taxable year for which funds were placed in to an assisted person with the express or im- ance between a debt relief agency and an as- such account; plied purpose of providing information, ad- sisted person that does not comply with the ‘‘(B) only to the extent that such funds— vice, counsel, document preparation, or fil- material requirements of this section, sec- ‘‘(i) are not pledged or promised to any en- ing, or attendance at a creditors’ meeting or tion 527, or section 528 shall be void and may tity in connection with any extension of appearing in a case or proceeding on behalf not be enforced by any Federal or State credit; and of another or providing legal representation court or by any other person, other than ‘‘(ii) are not excess contributions (as de- with respect to a case or proceeding under such assisted person. scribed in section 4973(e) of the Internal Rev- this title;’’; and ‘‘(2) Any debt relief agency shall be liable enue Code of 1986); and (3) by inserting after paragraph (12) the fol- to an assisted person in the amount of any ‘‘(C) in the case of funds placed in all such lowing: fees or charges in connection with providing accounts having the same designated bene- ‘‘(12A) ‘debt relief agency’ means any per- bankruptcy assistance to such person that ficiary not earlier than 720 days nor later son who provides any bankruptcy assistance such debt relief agency has received, for ac- than 365 days before such date, only so much to an assisted person in return for the pay- tual damages, and for reasonable attorneys’ of such funds as does not exceed $5,000; ment of money or other valuable consider- fees and costs if such agency is found, after ‘‘(6) funds used to purchase a tuition credit ation, or who is a bankruptcy petition pre- notice and a hearing, to have— or certificate or contributed to an account in parer under section 110, but does not in- ‘‘(A) intentionally or negligently failed to accordance with section 529(b)(1)(A) of the clude— comply with any provision of this section, Internal Revenue Code of 1986 under a quali- ‘‘(A) any person who is an officer, director, section 527, or section 528 with respect to a fied State tuition program (as defined in sec- employee, or agent of a person who provides case or proceeding under this title for such tion 529(b)(1) of such Code) not later than 365 such assistance or of the bankruptcy peti- assisted person; days before the date of the filing of the peti- tion preparer; ‘‘(B) provided bankruptcy assistance to an tion in a case under this title, but— ‘‘(B) a nonprofit organization that is ex- assisted person in a case or proceeding under ‘‘(A) only if the designated beneficiary of empt from taxation under section 501(c)(3) of this title that is dismissed or converted to a the amounts paid or contributed to such tui- the Internal Revenue Code of 1986; case under another chapter of this title be- tion program was a child, stepchild, grand- ‘‘(C) a creditor of such assisted person, to cause of such agency’s intentional or neg- child, or stepgrandchild of the debtor for the the extent that the creditor is assisting such ligent failure to file any required document taxable year for which funds were paid or assisted person to restructure any debt owed including those specified in section 521; or contributed; by such assisted person to the creditor; ‘‘(C) intentionally or negligently dis- ‘‘(B) with respect to the aggregate amount ‘‘(D) a depository institution (as defined in regarded the material requirements of this paid or contributed to such program having section 3 of the Federal Deposit Insurance title or the Federal Rules of Bankruptcy the same designated beneficiary, only so Act) or any Federal credit union or State Procedure applicable to such agency. much of such amount as does not exceed the credit union (as those terms are defined in ‘‘(3) In addition to such other remedies as total contributions permitted under section section 101 of the Federal Credit Union Act), are provided under State law, whenever the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00101 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S782 CONGRESSIONAL RECORD — SENATE February 1, 2005 chief law enforcement officer of a State, or in those documents where requested after itself after reasonably diligent inquiry of the an official or agency designated by a State, reasonable inquiry to establish such value; assisted person or others so as to obtain such has reason to believe that any person has ‘‘(C) current monthly income, the amounts information reasonably accurately for inclu- violated or is violating this section, the specified in section 707(b)(2), and, in a case sion on the petition, schedules or statement State— under chapter 13 of this title, disposable in- of financial affairs, a debt relief agency pro- ‘‘(A) may bring an action to enjoin such come (determined in accordance with section viding bankruptcy assistance to an assisted violation; 707(b)(2)), are required to be stated after rea- person, to the extent permitted by nonbank- ‘‘(B) may bring an action on behalf of its sonable inquiry; and ruptcy law, shall provide each assisted per- residents to recover the actual damages of ‘‘(D) information that an assisted person son at the time required for the notice re- assisted persons arising from such violation, provides during their case may be audited quired under subsection (a)(1) reasonably suf- including any liability under paragraph (2); pursuant to this title, and that failure to ficient information (which shall be provided and provide such information may result in dis- in a clear and conspicuous writing) to the as- ‘‘(C) in the case of any successful action missal of the case under this title or other sisted person on how to provide all the infor- under subparagraph (A) or (B), shall be sanction, including a criminal sanction. mation the assisted person is required to awarded the costs of the action and reason- ‘‘(b) A debt relief agency providing bank- provide under this title pursuant to section able attorneys’ fees as determined by the ruptcy assistance to an assisted person shall 521, including— court. provide each assisted person at the same ‘‘(1) how to value assets at replacement ‘‘(4) The district courts of the United time as the notices required under sub- value, determine current monthly income, States for districts located in the State shall section (a)(1) the following statement, to the the amounts specified in section 707(b)(2) have concurrent jurisdiction of any action extent applicable, or one substantially simi- and, in a chapter 13 case, how to determine under subparagraph (A) or (B) of paragraph lar. The statement shall be clear and con- disposable income in accordance with sec- (3). spicuous and shall be in a single document tion 707(b)(2) and related calculations; ‘‘(5) Notwithstanding any other provision separate from other documents or notices ‘‘(2) how to complete the list of creditors, of Federal law and in addition to any other provided to the assisted person: including how to determine what amount is remedy provided under Federal or State law, ‘‘ ‘IMPORTANT INFORMATION ABOUT owed and what address for the creditor if the court, on its own motion or on the mo- BANKRUPTCY ASSISTANCE SERVICES should be shown; and tion of the United States trustee or the debt- FROM AN ATTORNEY OR BANKRUPTCY ‘‘(3) how to determine what property is ex- or, finds that a person intentionally violated PETITION PREPARER. empt and how to value exempt property at ‘‘ ‘If you decide to seek bankruptcy relief, this section, or engaged in a clear and con- replacement value as defined in section 506. sistent pattern or practice of violating this you can represent yourself, you can hire an ‘‘(d) A debt relief agency shall maintain a section, the court may— attorney to represent you, or you can get copy of the notices required under subsection ‘‘(A) enjoin the violation of such section; help in some localities from a bankruptcy (a) of this section for 2 years after the date or petition preparer who is not an attorney. on which the notice is given the assisted per- ‘‘(B) impose an appropriate civil penalty THE LAW REQUIRES AN ATTORNEY OR son.’’. against such person. BANKRUPTCY PETITION PREPARER TO (b) CONFORMING AMENDMENT.—The table of ‘‘(d) No provision of this section, section GIVE YOU A WRITTEN CONTRACT SPECI- sections for chapter 5 of title 11, United 527, or section 528 shall— FYING WHAT THE ATTORNEY OR BANK- States Code, as amended by section 227, is ‘‘(1) annul, alter, affect, or exempt any per- RUPTCY PETITION PREPARER WILL DO amended by inserting after the item relating son subject to such sections from complying FOR YOU AND HOW MUCH IT WILL COST. to section 526 the following: with any law of any State except to the ex- Ask to see the contract before you hire any- one. ‘‘527. Disclosures.’’. tent that such law is inconsistent with those SEC. 229. REQUIREMENTS FOR DEBT RELIEF sections, and then only to the extent of the ‘‘ ‘The following information helps you un- derstand what must be done in a routine AGENCIES. inconsistency; or bankruptcy case to help you evaluate how (a) ENFORCEMENT.—Subchapter II of chap- ‘‘(2) be deemed to limit or curtail the au- much service you need. Although bank- ter 5 of title 11, United States Code, as thority or ability— ruptcy can be complex, many cases are rou- amended by sections 227 and 228, is amended ‘‘(A) of a State or subdivision or instru- tine. by adding at the end the following: mentality thereof, to determine and enforce ‘‘ ‘Before filing a bankruptcy case, either ‘‘§ 528. Requirements for debt relief agencies qualifications for the practice of law under you or your attorney should analyze your the laws of that State; or ‘‘(a) A debt relief agency shall— eligibility for different forms of debt relief ‘‘(1) not later than 5 business days after the ‘‘(B) of a Federal court to determine and available under the Bankruptcy Code and enforce the qualifications for the practice of first date on which such agency provides any which form of relief is most likely to be ben- bankruptcy assistance services to an assisted law before that court.’’. eficial for you. Be sure you understand the (b) CONFORMING AMENDMENT.—The table of person, but prior to such assisted person’s relief you can obtain and its limitations. To petition under this title being filed, execute sections for chapter 5 of title 11, United file a bankruptcy case, documents called a States Code, is amended by inserting after a written contract with such assisted person Petition, Schedules and Statement of Finan- that explains clearly and conspicuously— the item relating to section 525, the fol- cial Affairs, as well as in some cases a State- lowing: ‘‘(A) the services such agency will provide ment of Intention need to be prepared cor- to such assisted person; and ‘‘526. Restrictions on debt relief agencies.’’. rectly and filed with the bankruptcy court. ‘‘(B) the fees or charges for such services, SEC. 228. DISCLOSURES. You will have to pay a filing fee to the bank- and the terms of payment; (a) DISCLOSURES.—Subchapter II of chapter ruptcy court. Once your case starts, you will ‘‘(2) provide the assisted person with a 5 of title 11, United States Code, as amended have to attend the required first meeting of copy of the fully executed and completed by section 227, is amended by adding at the creditors where you may be questioned by a contract; end the following: court official called a ‘trustee’ and by credi- ‘‘(3) clearly and conspicuously disclose in ‘‘§ 527. Disclosures tors. any advertisement of bankruptcy assistance ‘‘ ‘If you choose to file a chapter 7 case, ‘‘(a) A debt relief agency providing bank- services or of the benefits of bankruptcy di- you may be asked by a creditor to reaffirm ruptcy assistance to an assisted person shall rected to the general public (whether in gen- a debt. You may want help deciding whether provide— eral media, seminars or specific mailings, to do so. A creditor is not permitted to co- ‘‘(1) the written notice required under sec- telephonic or electronic messages, or other- erce you into reaffirming your debts. tion 342(b)(1); and ‘‘ ‘If you choose to file a chapter 13 case in wise) that the services or benefits are with ‘‘(2) to the extent not covered in the writ- which you repay your creditors what you can respect to bankruptcy relief under this title; ten notice described in paragraph (1), and not afford over 3 to 5 years, you may also want and later than 3 business days after the first date help with preparing your chapter 13 plan and ‘‘(4) clearly and conspicuously use the fol- on which a debt relief agency first offers to with the confirmation hearing on your plan lowing statement in such advertisement: ‘We provide any bankruptcy assistance services which will be before a bankruptcy judge. are a debt relief agency. We help people file to an assisted person, a clear and con- ‘‘ ‘If you select another type of relief under for bankruptcy relief under the Bankruptcy spicuous written notice advising assisted the Bankruptcy Code other than chapter 7 or Code.’ or a substantially similar statement. persons that— chapter 13, you will want to find out what ‘‘(b)(1) An advertisement of bankruptcy as- ‘‘(A) all information that the assisted per- should be done from someone familiar with sistance services or of the benefits of bank- son is required to provide with a petition and that type of relief. ruptcy directed to the general public in- thereafter during a case under this title is ‘‘ ‘Your bankruptcy case may also involve cludes— required to be complete, accurate, and truth- litigation. You are generally permitted to ‘‘(A) descriptions of bankruptcy assistance ful; represent yourself in litigation in bank- in connection with a chapter 13 plan whether ‘‘(B) all assets and all liabilities are re- ruptcy court, but only attorneys, not bank- or not chapter 13 is specifically mentioned in quired to be completely and accurately dis- ruptcy petition preparers, can give you legal such advertisement; and closed in the documents filed to commence advice.’. ‘‘(B) statements such as ‘federally super- the case, and the replacement value of each ‘‘(c) Except to the extent the debt relief vised repayment plan’ or ‘Federal debt re- asset as defined in section 506 must be stated agency provides the required information structuring help’ or other similar statements

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00102 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S783 that could lead a reasonable consumer to be- uct or a service from the debtor primarily required to disclose in the public records in lieve that debt counseling was being offered for personal, family, or household purposes— the case the name of such minor child. The when in fact the services were directed to ‘‘(i) the first name (or initial) and last debtor may be required to disclose the name providing bankruptcy assistance with a name of such individual, whether given at of such minor child in a nonpublic record chapter 13 plan or other form of bankruptcy birth or time of adoption, or resulting from that is maintained by the court and made relief under this title. a lawful change of name; available by the court for examination by ‘‘(2) An advertisement, directed to the gen- ‘‘(ii) the geographical address of a physical the United States trustee, the trustee, and eral public, indicating that the debt relief place of residence of such individual; the auditor (if any) serving under section agency provides assistance with respect to ‘‘(iii) an electronic address (including an e- 586(f) of title 28, in the case. The court, the credit defaults, mortgage foreclosures, evic- mail address) of such individual; United States trustee, the trustee, and such tion proceedings, excessive debt, debt collec- ‘‘(iv) a telephone number dedicated to con- auditor shall not disclose the name of such tion pressure, or inability to pay any con- tacting such individual at such physical minor child maintained in such nonpublic sumer debt shall— place of residence; record.’’. ‘‘(A) disclose clearly and conspicuously in ‘‘(v) a social security account number (b) CLERICAL AMENDMENT.—The table of such advertisement that the assistance may issued to such individual; or sections for chapter 1 of title 11, United involve bankruptcy relief under this title; ‘‘(vi) the account number of a credit card States Code, as amended by section 106, is and issued to such individual; or amended by inserting after the item relating ‘‘(B) include the following statement: ‘We ‘‘(B) if identified in connection with 1 or to section 111 the following: are a debt relief agency. We help people file more of the items of information specified in ‘‘112. Prohibition on disclosure of name of for bankruptcy relief under the Bankruptcy subparagraph (A)— minor children.’’. Code.’ or a substantially similar state- ‘‘(i) a birth date, the number of a certifi- (c) CONFORMING AMENDMENT.—Section ment.’’. cate of birth or adoption, or a place of birth; 107(a) of title 11, United States Code, is (b) CONFORMING AMENDMENT.—The table of or amended by inserting ‘‘and subject to section sections for chapter 5 of title 11, United ‘‘(ii) any other information concerning an 112’’ after ‘‘section’’. States Code, as amended by section 227 and identified individual that, if disclosed, will 228, is amended by inserting after the item result in contacting or identifying such indi- TITLE III —DISCOURAGING BANKRUPTCY relating to section 527, the following: vidual physically or electronically;’’. ABUSE ‘‘528. Requirements for debt relief agencies.’’. SEC. 232. CONSUMER PRIVACY OMBUDSMAN. SEC. 301. TECHNICAL AMENDMENTS. SEC. 230. GAO STUDY. (a) CONSUMER PRIVACY OMBUDSMAN.—Title Section 523(a)(17) of title 11, United States (a) STUDY.—Not later than 270 days after 11 of the United States Code is amended by Code, is amended— the date of enactment of this Act, the Comp- inserting after section 331 the following: (1) by striking ‘‘by a court’’ and inserting troller General of the United States shall ‘‘§ 332. Consumer privacy ombudsman ‘‘on a prisoner by any court’’; conduct a study of the feasibility, effective- (2) by striking ‘‘section 1915(b) or (f)’’ and ‘‘(a) If a hearing is required under section ness, and cost of requiring trustees ap- inserting ‘‘subsection (b) or (f)(2) of section 363(b)(1)(B), the court shall order the United pointed under title 11, United States Code, or 1915’’; and States trustee to appoint, not later than 5 the bankruptcy courts, to provide to the Of- (3) by inserting ‘‘(or a similar non-Federal days before the commencement of the hear- fice of Child Support Enforcement promptly law)’’ after ‘‘title 28’’ each place it appears. after the commencement of cases by debtors ing, 1 disinterested person (other than the who are individuals under such title, the United States trustee) to serve as the con- SEC. 302. DISCOURAGING BAD FAITH REPEAT FILINGS. names and social security account numbers sumer privacy ombudsman in the case and Section 362(c) of title 11, United States of such debtors for the purposes of allowing shall require that notice of such hearing be such Office to determine whether such debt- timely given to such ombudsman. Code, is amended— ors have outstanding obligations for child ‘‘(b) The consumer privacy ombudsman (1) in paragraph (1), by striking ‘‘and’’ at support (as determined on the basis of infor- may appear and be heard at such hearing and the end; mation in the Federal Case Registry or other shall provide to the court information to as- (2) in paragraph (2), by striking the period national database). sist the court in its consideration of the at the end and inserting a semicolon; and (b) REPORT.—Not later than 300 days after facts, circumstances, and conditions of the (3) by adding at the end the following: the date of enactment of this Act, the Comp- proposed sale or lease of personally identifi- ‘‘(3) if a single or joint case is filed by or troller General shall submit to the President able information under section 363(b)(1)(B). against debtor who is an individual in a case pro tempore of the Senate and the Speaker Such information may include presentation under chapter 7, 11, or 13, and if a single or of the House of Representatives a report con- of— joint case of the debtor was pending within taining the results of the study required by ‘‘(1) the debtor’s privacy policy; the preceding 1-year period but was dis- subsection (a). ‘‘(2) the potential losses or gains of privacy missed, other than a case refiled under a SEC. 231. PROTECTION OF PERSONALLY IDENTI- to consumers if such sale or such lease is ap- chapter other than chapter 7 after dismissal FIABLE INFORMATION. proved by the court; under section 707(b)— (a) LIMITATION.—Section 363(b)(1) of title ‘‘(3) the potential costs or benefits to con- ‘‘(A) the stay under subsection (a) with re- 11, United States Code, is amended by strik- sumers if such sale or such lease is approved spect to any action taken with respect to a ing the period at the end and inserting the by the court; and debt or property securing such debt or with following: ‘‘(4) the potential alternatives that would respect to any lease shall terminate with re- ‘‘, except that if the debtor in connection mitigate potential privacy losses or poten- spect to the debtor on the 30th day after the with offering a product or a service discloses tial costs to consumers. filing of the later case; to an individual a policy prohibiting the ‘‘(c) A consumer privacy ombudsman shall ‘‘(B) on the motion of a party in interest transfer of personally identifiable informa- not disclose any personally identifiable in- for continuation of the automatic stay and tion about individuals to persons that are formation obtained by the ombudsman under upon notice and a hearing, the court may ex- not affiliated with the debtor and if such pol- this title.’’. tend the stay in particular cases as to any or icy is in effect on the date of the commence- (b) COMPENSATION OF CONSUMER PRIVACY all creditors (subject to such conditions or ment of the case, then the trustee may not OMBUDSMAN.—Section 330(a)(1) of title 11, limitations as the court may then impose) sell or lease personally identifiable informa- United States Code, is amended in the mat- after notice and a hearing completed before tion to any person unless— ter preceding subparagraph (A), by inserting the expiration of the 30-day period only if ‘‘(A) such sale or such lease is consistent ‘‘a consumer privacy ombudsman appointed the party in interest demonstrates that the with such policy; or under section 332,’’ before ‘‘an examiner’’. filing of the later case is in good faith as to ‘‘(B) after appointment of a consumer pri- (c) CONFORMING AMENDMENT.—The table of the creditors to be stayed; and vacy ombudsman in accordance with section sections for subchapter II of chapter 3 of ‘‘(C) for purposes of subparagraph (B), a 332, and after notice and a hearing, the court title 11, United States Code, is amended by case is presumptively filed not in good faith approves such sale or such lease— adding at the end the following: (but such presumption may be rebutted by clear and convincing evidence to the con- ‘‘(i) giving due consideration to the facts, ‘‘332. Consumer privacy ombudsman.’’. circumstances, and conditions of such sale or trary)— SEC. 233. PROHIBITION ON DISCLOSURE OF ‘‘(i) as to all creditors, if— such lease; and NAME OF MINOR CHILDREN. ‘‘(ii) finding that no showing was made ‘‘(I) more than 1 previous case under any of (a) PROHIBITION.—Title 11 of the United chapters 7, 11, and 13 in which the individual that such sale or such lease would violate ap- States Code, as amended by section 106, is was a debtor was pending within the pre- plicable nonbankruptcy law.’’. amended by inserting after section 111 the (b) DEFINITION.—Section 101 of title 11, ceding 1-year period; following: United States Code, is amended by inserting ‘‘(II) a previous case under any of chapters after paragraph (41) the following: ‘‘§ 112. Prohibition on disclosure of name of 7, 11, and 13 in which the individual was a ‘‘(41A) ‘personally identifiable information’ minor children debtor was dismissed within such 1-year pe- means— ‘‘The debtor may be required to provide in- riod, after the debtor failed to— ‘‘(A) if provided by an individual to the formation regarding a minor child involved ‘‘(aa) file or amend the petition or other debtor in connection with obtaining a prod- in matters under this title but may not be documents as required by this title or the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00103 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S784 CONGRESSIONAL RECORD — SENATE February 1, 2005 court without substantial excuse (but mere by terminating, conditioning, or limiting the spect to the claim secured by such property; inadvertence or negligence shall not be a stay as to such action of such creditor.’’. or substantial excuse unless the dismissal was SEC. 303. CURBING ABUSIVE FILINGS. ‘‘(B) redeems such property from the secu- caused by the negligence of the debtor’s at- (a) IN GENERAL.—Section 362(d) of title 11, rity interest pursuant to section 722. torney); United States Code, is amended— If the debtor fails to so act within the 45-day ‘‘(bb) provide adequate protection as or- (1) in paragraph (2), by striking ‘‘or’’ at the period referred to in paragraph (6), the stay dered by the court; or end; under section 362(a) is terminated with re- ‘‘(cc) perform the terms of a plan con- (2) in paragraph (3), by striking the period spect to the personal property of the estate firmed by the court; or at the end and inserting ‘‘; or’’; and or of the debtor which is affected, such prop- ‘‘(III) there has not been a substantial (3) by adding at the end the following: erty shall no longer be property of the es- change in the financial or personal affairs of ‘‘(4) with respect to a stay of an act against tate, and the creditor may take whatever ac- the debtor since the dismissal of the next real property under subsection (a), by a cred- tion as to such property as is permitted by most previous case under chapter 7, 11, or 13 itor whose claim is secured by an interest in applicable nonbankruptcy law, unless the or any other reason to conclude that the such real property, if the court finds that the court determines on the motion of the trust- later case will be concluded— filing of the petition was part of a scheme to ee filed before the expiration of such 45-day ‘‘(aa) if a case under chapter 7, with a dis- delay, hinder, and defraud creditors that in- period, and after notice and a hearing, that charge; or volved either— such property is of consequential value or ‘‘(bb) if a case under chapter 11 or 13, with ‘‘(A) transfer of all or part ownership of, or benefit to the estate, orders appropriate ade- a confirmed plan that will be fully per- other interest in, such real property without quate protection of the creditor’s interest, formed; and the consent of the secured creditor or court and orders the debtor to deliver any collat- ‘‘(ii) as to any creditor that commenced an approval; or eral in the debtor’s possession to the trust- action under subsection (d) in a previous ‘‘(B) multiple bankruptcy filings affecting ee.’’; and case in which the individual was a debtor if, such real property. (2) in section 722, by inserting ‘‘in full at as of the date of dismissal of such case, that If recorded in compliance with applicable the time of redemption’’ before the period at action was still pending or had been resolved State laws governing notices of interests or the end. by terminating, conditioning, or limiting the liens in real property, an order entered under SEC. 305. RELIEF FROM THE AUTOMATIC STAY stay as to actions of such creditor; and paragraph (4) shall be binding in any other WHEN THE DEBTOR DOES NOT COM- ‘‘(4)(A)(i) if a single or joint case is filed by case under this title purporting to affect PLETE INTENDED SURRENDER OF or against a debtor who is an individual such real property filed not later than 2 CONSUMER DEBT COLLATERAL. under this title, and if 2 or more single or years after the date of the entry of such Title 11, United States Code, is amended— joint cases of the debtor were pending within order by the court, except that a debtor in a (1) in section 362, as amended by section the previous year but were dismissed, other subsequent case under this title may move 106— than a case refiled under section 707(b), the for relief from such order based upon (A) in subsection (c), by striking ‘‘(e), and stay under subsection (a) shall not go into changed circumstances or for good cause (f)’’ and inserting ‘‘(e), (f), and (h)’’; effect upon the filing of the later case; and shown, after notice and a hearing. Any Fed- (B) by redesignating subsection (h) as sub- ‘‘(ii) on request of a party in interest, the eral, State, or local governmental unit that section (k) and transferring such subsection court shall promptly enter an order con- accepts notices of interests or liens in real so as to insert it after subsection (j) as added firming that no stay is in effect; property shall accept any certified copy of by section 106; and ‘‘(B) if, within 30 days after the filing of an order described in this subsection for in- (C) by inserting after subsection (g) the fol- the later case, a party in interest requests dexing and recording.’’. lowing: the court may order the stay to take effect (b) AUTOMATIC STAY.—Section 362(b) of ‘‘(h)(1) In a case in which the debtor is an in the case as to any or all creditors (subject title 11, United States Code, as amended by individual, the stay provided by subsection to such conditions or limitations as the section 224, is amended by inserting after (a) is terminated with respect to personal court may impose), after notice and a hear- paragraph (19), the following: property of the estate or of the debtor secur- ing, only if the party in interest dem- ‘‘(20) under subsection (a), of any act to en- ing in whole or in part a claim, or subject to onstrates that the filing of the later case is force any lien against or security interest in an unexpired lease, and such personal prop- in good faith as to the creditors to be stayed; real property following entry of the order erty shall no longer be property of the estate ‘‘(C) a stay imposed under subparagraph under subsection (d)(4) as to such real prop- if the debtor fails within the applicable time (B) shall be effective on the date of the entry erty in any prior case under this title, for a set by section 521(a)(2)— of the order allowing the stay to go into ef- period of 2 years after the date of the entry ‘‘(A) to file timely any statement of inten- fect; and of such an order, except that the debtor, in a tion required under section 521(a)(2) with re- ‘‘(D) for purposes of subparagraph (B), a subsequent case under this title, may move spect to such personal property or to indi- case is presumptively filed not in good faith for relief from such order based upon cate in such statement that the debtor will (but such presumption may be rebutted by changed circumstances or for other good either surrender such personal property or clear and convincing evidence to the con- cause shown, after notice and a hearing; retain it and, if retaining such personal prop- trary)— ‘‘(21) under subsection (a), of any act to en- erty, either redeem such personal property ‘‘(i) as to all creditors if— force any lien against or security interest in pursuant to section 722, enter into an agree- ‘‘(I) 2 or more previous cases under this real property— ment of the kind specified in section 524(c) title in which the individual was a debtor ‘‘(A) if the debtor is ineligible under sec- applicable to the debt secured by such per- were pending within the 1-year period; tion 109(g) to be a debtor in a case under this sonal property, or assume such unexpired ‘‘(II) a previous case under this title in title; or lease pursuant to section 365(p) if the trustee which the individual was a debtor was dis- ‘‘(B) if the case under this title was filed in does not do so, as applicable; and missed within the time period stated in this violation of a bankruptcy court order in a ‘‘(B) to take timely the action specified in paragraph after the debtor failed to file or prior case under this title prohibiting the such statement, as it may be amended before amend the petition or other documents as re- debtor from being a debtor in another case expiration of the period for taking action, quired by this title or the court without sub- under this title;’’. unless such statement specifies the debtor’s stantial excuse (but mere inadvertence or SEC. 304. DEBTOR RETENTION OF PERSONAL intention to reaffirm such debt on the origi- negligence shall not be substantial excuse PROPERTY SECURITY. nal contract terms and the creditor refuses unless the dismissal was caused by the neg- Title 11, United States Code, is amended— to agree to the reaffirmation on such terms. ligence of the debtor’s attorney), failed to (1) in section 521(a), as so designated by ‘‘(2) Paragraph (1) does not apply if the provide adequate protection as ordered by section 106— court determines, on the motion of the trust- the court, or failed to perform the terms of (A) in paragraph (4), by striking ‘‘, and’’ at ee filed before the expiration of the applica- a plan confirmed by the court; or the end and inserting a semicolon; ble time set by section 521(a)(2), after notice ‘‘(III) there has not been a substantial (B) in paragraph (5), by striking the period and a hearing, that such personal property is change in the financial or personal affairs of at the end and inserting ‘‘; and’’; and of consequential value or benefit to the es- the debtor since the dismissal of the next (C) by adding at the end the following: tate, and orders appropriate adequate protec- most previous case under this title, or any ‘‘(6) in a case under chapter 7 of this title tion of the creditor’s interest, and orders the other reason to conclude that the later case in which the debtor is an individual, not re- debtor to deliver any collateral in the debt- will not be concluded, if a case under chapter tain possession of personal property as to or’s possession to the trustee. If the court 7, with a discharge, and if a case under chap- which a creditor has an allowed claim for the does not so determine, the stay provided by ter 11 or 13, with a confirmed plan that will purchase price secured in whole or in part by subsection (a) shall terminate upon the con- be fully performed; or an interest in such personal property unless clusion of the hearing on the motion.’’; and ‘‘(ii) as to any creditor that commenced an the debtor, not later than 45 days after the (2) in section 521, as amended by sections action under subsection (d) in a previous first meeting of creditors under section 106 and 225— case in which the individual was a debtor if, 341(a), either— (A) in subsection (a)(2) by striking ‘‘con- as of the date of dismissal of such case, such ‘‘(A) enters into an agreement with the sumer’’; action was still pending or had been resolved creditor pursuant to section 524(c) with re- (B) in subsection (a)(2)(B)—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00104 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S785 (i) by striking ‘‘forty-five days after the SEC. 307. DOMICILIARY REQUIREMENTS FOR EX- of conversion, in any proceeding under this filing of a notice of intent under this sec- EMPTIONS. title or otherwise, the default shall have the tion’’ and inserting ‘‘30 days after the first Section 522(b)(3) of title 11, United States effect given under applicable nonbankruptcy date set for the meeting of creditors under Code, as so designated by section 106, is law.’’. section 341(a)’’; and amended— (b) GIVING DEBTORS THE ABILITY TO KEEP (ii) by striking ‘‘forty-five day’’ and insert- (1) in subparagraph (A)— LEASED PERSONAL PROPERTY BY ASSUMP- ing ‘‘30-day’’; (A) by striking ‘‘180 days’’ and inserting TION.—Section 365 of title 11, United States (C) in subsection (a)(2)(C) by inserting ‘‘, ‘‘730 days’’; and Code, is amended by adding at the end the except as provided in section 362(h)’’ before (B) by striking ‘‘, or for a longer portion of following: the semicolon; and such 180-day period than in any other place’’ ‘‘(p)(1) If a lease of personal property is re- (D) by adding at the end the following: and inserting ‘‘or if the debtor’s domicile has jected or not timely assumed by the trustee ‘‘(d) If the debtor fails timely to take the not been located at a single State for such under subsection (d), the leased property is action specified in subsection (a)(6) of this 730-day period, the place in which the debt- no longer property of the estate and the stay section, or in paragraphs (1) and (2) of sec- or’s domicile was located for 180 days imme- under section 362(a) is automatically termi- tion 362(h), with respect to property which a diately preceding the 730-day period or for a nated. lessor or bailor owns and has leased, rented, longer portion of such 180-day period than in ‘‘(2)(A) If the debtor in a case under chap- or bailed to the debtor or as to which a cred- any other place’’; and ter 7 is an individual, the debtor may notify itor holds a security interest not otherwise (2) by adding at the end the following: the creditor in writing that the debtor de- voidable under section 522(f), 544, 545, 547, 548, ‘‘If the effect of the domiciliary requirement sires to assume the lease. Upon being so no- or 549, nothing in this title shall prevent or under subparagraph (A) is to render the debt- tified, the creditor may, at its option, notify limit the operation of a provision in the un- or ineligible for any exemption, the debtor the debtor that it is willing to have the lease derlying lease or agreement that has the ef- may elect to exempt property that is speci- assumed by the debtor and may condition fect of placing the debtor in default under fied under subsection (d).’’. such assumption on cure of any outstanding such lease or agreement by reason of the oc- SEC. 308. REDUCTION OF HOMESTEAD EXEMP- default on terms set by the contract. currence, pendency, or existence of a pro- TION FOR FRAUD. ‘‘(B) If, not later than 30 days after notice ceeding under this title or the insolvency of Section 522 of title 11, United States Code, is provided under subparagraph (A), the debt- the debtor. Nothing in this subsection shall as amended by section 224, is amended— or notifies the lessor in writing that the be deemed to justify limiting such a provi- (1) in subsection (b)(3)(A), as so designated lease is assumed, the liability under the sion in any other circumstance.’’. by this Act, by inserting ‘‘subject to sub- lease will be assumed by the debtor and not sections (o) and (p),’’ before ‘‘any property’’; by the estate. SEC. 306. GIVING SECURED CREDITORS FAIR ‘‘(C) The stay under section 362 and the in- TREATMENT IN CHAPTER 13. and (2) by adding at the end the following: junction under section 524(a)(2) shall not be (a) IN GENERAL.—Section 1325(a)(5)(B)(i) of ‘‘(o) For purposes of subsection (b)(3)(A), violated by notification of the debtor and ne- title 11, United States Code, is amended to and notwithstanding subsection (a), the gotiation of cure under this subsection. read as follows: value of an interest in— ‘‘(3) In a case under chapter 11 in which the ‘‘(i) the plan provides that— ‘‘(1) real or personal property that the debtor is an individual and in a case under ‘‘(I) the holder of such claim retain the lien debtor or a dependent of the debtor uses as a chapter 13, if the debtor is the lessee with re- securing such claim until the earlier of— residence; spect to personal property and the lease is ‘‘(aa) the payment of the underlying debt ‘‘(2) a cooperative that owns property that not assumed in the plan confirmed by the determined under nonbankruptcy law; or the debtor or a dependent of the debtor uses court, the lease is deemed rejected as of the ‘‘(bb) discharge under section 1328; and as a residence; conclusion of the hearing on confirmation. If ‘‘(II) if the case under this chapter is dis- ‘‘(3) a burial plot for the debtor or a de- the lease is rejected, the stay under section missed or converted without completion of pendent of the debtor; or 362 and any stay under section 1301 is auto- the plan, such lien shall also be retained by ‘‘(4) real or personal property that the matically terminated with respect to the such holder to the extent recognized by ap- debtor or a dependent of the debtor claims as property subject to the lease.’’. plicable nonbankruptcy law; and’’. a homestead; (c) ADEQUATE PROTECTION OF LESSORS AND (b) RESTORING THE FOUNDATION FOR SE- shall be reduced to the extent that such PURCHASE MONEY SECURED CREDITORS.— CURED CREDIT.—Section 1325(a) of title 11, value is attributable to any portion of any (1) CONFIRMATION OF PLAN.—Section United States Code, is amended by adding at property that the debtor disposed of in the 1325(a)(5)(B) of title 11, United States Code, the end the following: 10-year period ending on the date of the fil- as amended by section 306, is amended— ‘‘For purposes of paragraph (5), section 506 ing of the petition with the intent to hinder, (A) in clause (i), by striking ‘‘and’’ at the shall not apply to a claim described in that delay, or defraud a creditor and that the end; paragraph if the creditor has a purchase debtor could not exempt, or that portion (B) in clause (ii), by striking ‘‘or’’ at the money security interest securing the debt that the debtor could not exempt, under sub- end and inserting ‘‘and’’; and that is the subject of the claim, the debt was section (b), if on such date the debtor had (C) by adding at the end the following: incurred within the 910-day preceding the held the property so disposed of.’’. ‘‘(iii) if— date of the filing of the petition, and the col- SEC. 309. PROTECTING SECURED CREDITORS IN ‘‘(I) property to be distributed pursuant to lateral for that debt consists of a motor ve- CHAPTER 13 CASES. this subsection is in the form of periodic hicle (as defined in section 30102 of title 49) (a) STOPPING ABUSIVE CONVERSIONS FROM payments, such payments shall be in equal acquired for the personal use of the debtor, CHAPTER 13.—Section 348(f)(1) of title 11, monthly amounts; and or if collateral for that debt consists of any United States Code, is amended— ‘‘(II) the holder of the claim is secured by other thing of value, if the debt was incurred (1) in subparagraph (A), by striking ‘‘and’’ personal property, the amount of such pay- during the 1-year period preceding that fil- at the end; ments shall not be less than an amount suffi- ing.’’. (2) in subparagraph (B)— cient to provide to the holder of such claim (c) DEFINITIONS.—Section 101 of title 11, (A) by striking ‘‘in the converted case, adequate protection during the period of the United States Code, is amended— with allowed secured claims’’ and inserting plan; or’’. (1) by inserting after paragraph (13) the fol- ‘‘only in a case converted to a case under (2) PAYMENTS.—Section 1326(a) of title 11, lowing: chapter 11 or 12, but not in a case converted United States Code, is amended to read as ‘‘(13A) ‘debtor’s principal residence’— to a case under chapter 7, with allowed se- follows: ‘‘(A) means a residential structure, includ- cured claims in cases under chapters 11 and ‘‘(a)(1) Unless the court orders otherwise, ing incidental property, without regard to 12’’; and the debtor shall commence making pay- whether that structure is attached to real (B) by striking the period and inserting ‘‘; ments not later than 30 days after the date of property; and and’’; and the filing of the plan or the order for relief, ‘‘(B) includes an individual condominium (3) by adding at the end the following: whichever is earlier, in the amount— or cooperative unit, a mobile or manufac- ‘‘(C) with respect to cases converted from ‘‘(A) proposed by the plan to the trustee; tured home, or trailer;’’; and chapter 13— ‘‘(B) scheduled in a lease of personal prop- (2) by inserting after paragraph (27), the ‘‘(i) the claim of any creditor holding secu- erty directly to the lessor for that portion of following: rity as of the date of the petition shall con- the obligation that becomes due after the ‘‘(27A) ‘incidental property’ means, with tinue to be secured by that security unless order for relief, reducing the payments under respect to a debtor’s principal residence— the full amount of such claim determined subparagraph (A) by the amount so paid and ‘‘(A) property commonly conveyed with a under applicable nonbankruptcy law has providing the trustee with evidence of such principal residence in the area where the real been paid in full as of the date of conversion, payment, including the amount and date of property is located; notwithstanding any valuation or deter- payment; and ‘‘(B) all easements, rights, appurtenances, mination of the amount of an allowed se- ‘‘(C) that provides adequate protection di- fixtures, rents, royalties, mineral rights, oil cured claim made for the purposes of the rectly to a creditor holding an allowed claim or gas rights or profits, water rights, escrow case under chapter 13; and secured by personal property to the extent funds, or insurance proceeds; and ‘‘(ii) unless a prebankruptcy default has the claim is attributable to the purchase of ‘‘(C) all replacements or additions;’’. been fully cured under the plan at the time such property by the debtor for that portion

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00105 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S786 CONGRESSIONAL RECORD — SENATE February 1, 2005 of the obligation that becomes due after the the date of the filing of the certification, has ruptcy petition and shall provide the name order for relief, reducing the payments under endangered property or illegally used or al- and address of the lessor that obtained that subparagraph (A) by the amount so paid and lowed to be used a controlled substance on pre-petition judgment on the petition and on providing the trustee with evidence of such the property; any certification filed under this subsection. payment, including the amount and date of ‘‘(24) under subsection (a), of any transfer ‘‘(B) The form of certification filed with payment. that is not avoidable under section 544 and the petition, as specified in this subsection, ‘‘(2) A payment made under paragraph that is not avoidable under section 549;’’. shall provide for the debtor to certify, and (1)(A) shall be retained by the trustee until (b) LIMITATIONS.—Section 362 of title 11, the debtor shall certify— confirmation or denial of confirmation. If a United States Code, as amended by sections ‘‘(i) whether a judgment for possession of plan is confirmed, the trustee shall dis- 106 and 305, is amended by adding at the end residential rental housing in which the debt- tribute any such payment in accordance the following: or resides has been obtained against the with the plan as soon as is practicable. If a ‘‘(l)(1) Except as otherwise provided in this debtor before the date of the filing of the pe- plan is not confirmed, the trustee shall re- subsection, subsection (b)(22) shall apply on tition; and turn any such payments not previously paid the date that is 30 days after the date on ‘‘(ii) whether the debtor is claiming under and not yet due and owing to creditors pur- which the bankruptcy petition is filed, if the paragraph (1) that under nonbankruptcy law suant to paragraph (3) to the debtor, after debtor files with the petition and serves applicable in the jurisdiction, there are cir- deducting any unpaid claim allowed under upon the lessor a certification under penalty cumstances under which the debtor would be section 503(b). of perjury that— permitted to cure the entire monetary de- ‘‘(3) Subject to section 363, the court may, ‘‘(A) under nonbankruptcy law applicable fault that gave rise to the judgment for pos- upon notice and a hearing, modify, increase, in the jurisdiction, there are circumstances session, after that judgment of possession or reduce the payments required under this under which the debtor would be permitted was entered, and has made the appropriate subsection pending confirmation of a plan. to cure the entire monetary default that deposit with the court. ‘‘(4) Not later than 60 days after the date of gave rise to the judgment for possession, ‘‘(C) The standard forms (electronic and filing of a case under this chapter, a debtor after that judgment for possession was en- otherwise) used in a bankruptcy proceeding retaining possession of personal property tered; and shall be amended to reflect the requirements subject to a lease or securing a claim attrib- ‘‘(B) the debtor (or an adult dependent of of this subsection. utable in whole or in part to the purchase the debtor) has deposited with the clerk of ‘‘(D) The clerk of the court shall arrange price of such property shall provide the les- the court, any rent that would become due for the prompt transmittal of the rent depos- sor or secured creditor reasonable evidence during the 30-day period after the filing of ited in accordance with paragraph (1)(B) to of the maintenance of any required insur- the bankruptcy petition. the lessor. ance coverage with respect to the use or ‘‘(2) If, within the 30-day period after the ‘‘(m)(1) Except as otherwise provided in ownership of such property and continue to filing of the bankruptcy petition, the debtor this subsection, subsection (b)(23) shall apply do so for so long as the debtor retains posses- (or an adult dependent of the debtor) com- on the date that is 15 days after the date on sion of such property.’’. plies with paragraph (1) and files with the which the lessor files and serves a certifi- SEC. 310. LIMITATION ON LUXURY GOODS. court and serves upon the lessor a further cation described in subsection (b)(23). ‘‘(2)(A) If the debtor files with the court an Section 523(a)(2)(C) of title 11, United certification under penalty of perjury that objection to the truth or legal sufficiency of States Code, is amended to read as follows: the debtor (or an adult dependent of the the certification described in subsection ‘‘(C)(i) for purposes of subparagraph (A)— debtor) has cured, under nonbankrupcty law (b)(23) and serves such objection upon the ‘‘(I) consumer debts owed to a single cred- applicable in the jurisdiction, the entire lessor, subsection (b)(23) shall not apply, un- itor and aggregating more than $500 for lux- monetary default that gave rise to the judg- less ordered to apply by the court under this ury goods or services incurred by an indi- ment under which possession is sought by subsection. vidual debtor on or within 90 days before the the lessor, subsection (b)(22) shall not apply, ‘‘(B) If the debtor files and serves the ob- order for relief under this title are presumed unless ordered to apply by the court under jection under subparagraph (A), the court to be nondischargeable; and paragraph (3). ‘‘(3)(A) If the lessor files an objection to shall hold a hearing within 10 days after the ‘‘(II) cash advances aggregating more than any certification filed by the debtor under filing and service of such objection to deter- $750 that are extensions of consumer credit paragraph (1) or (2), and serves such objec- mine if the situation giving rise to the les- under an open end credit plan obtained by an tion upon the debtor, the court shall hold a sor’s certification under paragraph (1) ex- individual debtor on or within 70 days before hearing within 10 days after the filing and isted or has been remedied. the order for relief under this title, are pre- service of such objection to determine if the ‘‘(C) If the debtor can demonstrate to the sumed to be nondischargeable; and certification filed by the debtor under para- satisfaction of the court that the situation ‘‘(ii) for purposes of this subparagraph— graph (1) or (2) is true. giving rise to the lessor’s certification under ‘‘(I) the terms ‘consumer’, ‘credit’, and ‘‘(B) If the court upholds the objection of paragraph (1) did not exist or has been rem- ‘open end credit plan’ have the same mean- the lessor filed under subparagraph (A)— edied, the stay provided under subsection ings as in section 103 of the Truth in Lending ‘‘(i) subsection (b)(22) shall apply imme- (a)(3) shall remain in effect until the termi- Act; and diately and relief from the stay provided nation of the stay under this section. ‘‘(II) the term ‘luxury goods or services’ under subsection (a)(3) shall not be required ‘‘(D) If the debtor cannot demonstrate to does not include goods or services reasonably to enable the lessor to complete the process the satisfaction of the court that the situa- necessary for the support or maintenance of to recover full possession of the property; tion giving rise to the lessor’s certification the debtor or a dependent of the debtor.’’. and under paragraph (1) did not exist or has been SEC. 311. AUTOMATIC STAY. ‘‘(ii) the clerk of the court shall imme- remedied— (a) IN GENERAL.—Section 362(b) of title 11, diately serve upon the lessor and the debtor ‘‘(i) relief from the stay provided under United States Code, as amended by sections a certified copy of the court’s order uphold- subsection (a)(3) shall not be required to en- 224 and 303, is amended by inserting after ing the lessor’s objection. able the lessor to proceed with the eviction; paragraph (21), the following: ‘‘(4) If a debtor, in accordance with para- and ‘‘(22) subject to subsection (l), under sub- graph (5), indicates on the petition that ‘‘(ii) the clerk of the court shall imme- section (a)(3), of the continuation of any there was a judgment for possession of the diately serve upon the lessor and the debtor eviction, unlawful detainer action, or similar residential rental property in which the a certified copy of the court’s order uphold- proceeding by a lessor against a debtor in- debtor resides and does not file a certifi- ing the lessor’s certification. volving residential property in which the cation under paragraph (1) or (2)— ‘‘(3) If the debtor fails to file, within 15 debtor resides as a tenant under a lease or ‘‘(A) subsection (b)(22) shall apply imme- days, an objection under paragraph (2)(A)— rental agreement and with respect to which diately upon failure to file such certifi- ‘‘(A) subsection (b)(23) shall apply imme- the lessor has obtained before the date of the cation, and relief from the stay provided diately upon such failure and relief from the filing of the bankruptcy petition, a judgment under subsection (a)(3) shall not be required stay provided under subsection (a)(3) shall for possession of such property against the to enable the lessor to complete the process not be required to enable the lessor to com- debtor; to recover full possession of the property; plete the process to recover full possession of ‘‘(23) subject to subsection (m), under sub- and the property; and section (a)(3), of an eviction action that ‘‘(B) the clerk of the court shall imme- ‘‘(B) the clerk of the court shall imme- seeks possession of the residential property diately serve upon the lessor and the debtor diately serve upon the lessor and the debtor in which the debtor resides as a tenant under a certified copy of the docket indicating the a certified copy of the docket indicating a lease or rental agreement based on absence of a filed certification and the appli- such failure.’’. endangerment of such property or the illegal cability of the exception to the stay under SEC. 312. EXTENSION OF PERIOD BETWEEN use of controlled substances on such prop- subsection (b)(22). BANKRUPTCY DISCHARGES. erty, but only if the lessor files with the ‘‘(5)(A) Where a judgment for possession of Title 11, United States Code, is amended— court, and serves upon the debtor, a certifi- residential property in which the debtor re- (1) in section 727(a)(8), by striking ‘‘six’’ cation under penalty of perjury that such an sides as a tenant under a lease or rental and inserting ‘‘8’’; and eviction action has been filed, or that the agreement has been obtained by the lessor, (2) in section 1328, by inserting after sub- debtor, during the 30-day period preceding the debtor shall so indicate on the bank- section (e) the following:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00106 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S787 ‘‘(f) Notwithstanding subsections (a) and that would be nondischargeable under para- tice is brought to the attention of such cred- (b), the court shall not grant a discharge of graph (1);’’. itor. If such creditor designates a person or all debts provided for in the plan or dis- (b) DISCHARGE UNDER CHAPTER 13.—Section an organizational subdivision of such cred- allowed under section 502, if the debtor has 1328(a) of title 11, United States Code, is itor to be responsible for receiving notices received a discharge— amended by striking paragraphs (1) through under this title and establishes reasonable ‘‘(1) in a case filed under chapter 7, 11, or (3) and inserting the following: procedures so that such notices receivable by 12 of this title during the 4-year period pre- ‘‘(1) provided for under section 1322(b)(5); such creditor are to be delivered to such per- ceding the date of the order for relief under ‘‘(2) of the kind specified in paragraph (2), son or such subdivision, then a notice pro- this chapter, or (3), (4), (5), (8), or (9) of section 523(a); vided to such creditor other than in accord- ‘‘(2) in a case filed under chapter 13 of this ‘‘(3) for restitution, or a criminal fine, in- ance with this section (excluding this sub- title during the 2-year period preceding the cluded in a sentence on the debtor’s convic- section) shall not be considered to have been date of such order.’’. tion of a crime; or brought to the attention of such creditor SEC. 313. DEFINITION OF HOUSEHOLD GOODS ‘‘(4) for restitution, or damages, awarded in until such notice is received by such person AND ANTIQUES. a civil action against the debtor as a result or such subdivision. (a) DEFINITION.—Section 522(f) of title 11, of willful or malicious injury by the debtor ‘‘(2) A monetary penalty may not be im- United States Code, is amended by adding at that caused personal injury to an individual posed on a creditor for a violation of a stay the end the following: or the death of an individual.’’. in effect under section 362(a) (including a ‘‘(4)(A) Subject to subparagraph (B), for SEC. 315. GIVING CREDITORS FAIR NOTICE IN monetary penalty imposed under section purposes of paragraph (1)(B), the term CHAPTERS 7 AND 13 CASES. 362(k)) or for failure to comply with section ‘household goods’ means— (a) NOTICE.—Section 342 of title 11, United 542 or 543 unless the conduct that is the basis ‘‘(i) clothing; States Code, as amended by section 102, is of such violation or of such failure occurs ‘‘(ii) furniture; amended— after such creditor receives notice effective ‘‘(iii) appliances; (1) in subsection (c)— under this section of the order for relief.’’. ‘‘(iv) 1 radio; (A) by inserting ‘‘(1)’’ after ‘‘(c)’’; (b) DEBTOR’S DUTIES.—Section 521 of title ‘‘(v) 1 television; (B) by striking ‘‘, but the failure of such 11, United States Code, as amended by sec- ‘‘(vi) 1 VCR; notice to contain such information shall not tions 106, 225, and 305, is amended— ‘‘(vii) linens; invalidate the legal effect of such notice’’; (1) in subsection (a), as so designated by ‘‘(viii) china; and section 106, by amending paragraph (1) to ‘‘(ix) crockery; (C) by adding at the end the following: read as follows: ‘‘(x) kitchenware; ‘‘(2)(A) If, within the 90 days before the ‘‘(1) file— ‘‘(xi) educational materials and edu- commencement of a voluntary case, a cred- ‘‘(A) a list of creditors; and cational equipment primarily for the use of itor supplies the debtor in at least 2 commu- ‘‘(B) unless the court orders otherwise— minor dependent children of the debtor; nications sent to the debtor with the current ‘‘(i) a schedule of assets and liabilities; (xii) medical equipment and supplies; account number of the debtor and the ad- ‘‘(ii) a schedule of current income and cur- ‘‘(xiii) furniture exclusively for the use of dress at which such creditor requests to re- rent expenditures; minor children, or elderly or disabled de- ceive correspondence, then any notice re- ‘‘(iii) a statement of the debtor’s financial pendents of the debtor; quired by this title to be sent by the debtor affairs and, if section 342(b) applies, a certifi- ‘‘(xiv) personal effects (including the toys to such creditor shall be sent to such address cate— and hobby equipment of minor dependent and shall include such account number. ‘‘(I) of an attorney whose name is indicated children and wedding rings) of the debtor and ‘‘(B) If a creditor would be in violation of on the petition as the attorney for the debt- the dependents of the debtor; and applicable nonbankruptcy law by sending or, or a bankruptcy petition preparer signing ‘‘(xv) 1 personal computer and related any such communication within such 90-day the petition under section 110(b)(1), indi- equipment. period and if such creditor supplies the debt- cating that such attorney or the bankruptcy ‘‘(B) The term ‘household goods’ does not or in the last 2 communications with the petition preparer delivered to the debtor the include— current account number of the debtor and notice required by section 342(b); or ‘‘(i) works of art (unless by or of the debt- the address at which such creditor requests ‘‘(II) if no attorney is so indicated, and no or, or any relative of the debtor); to receive correspondence, then any notice bankruptcy petition preparer signed the pe- ‘‘(ii) electronic entertainment equipment required by this title to be sent by the debt- tition, of the debtor that such notice was re- with a fair market value of more than $500 in or to such creditor shall be sent to such ad- ceived and read by the debtor; the aggregate (except 1 television, 1 radio, dress and shall include such account num- ‘‘(iv) copies of all payment advices or other and 1 VCR); ber.’’; and evidence of payment received within 60 days ‘‘(iii) items acquired as antiques with a fair (2) by adding at the end the following: before the date of the filing of the petition, market value of more than $500 in the aggre- ‘‘(e)(1) In a case under chapter 7 or 13 of by the debtor from any employer of the debt- gate; this title of a debtor who is an individual, a or; ‘‘(iv) jewelry with a fair market value of creditor at any time may both file with the ‘‘(v) a statement of the amount of monthly more than $500 in the aggregate (except wed- court and serve on the debtor a notice of ad- net income, itemized to show how the ding rings); and dress to be used to provide notice in such amount is calculated; and ‘‘(v) a computer (except as otherwise pro- case to such creditor. ‘‘(vi) a statement disclosing any reason- vided for in this section), motor vehicle (in- ‘‘(2) Any notice in such case required to be ably anticipated increase in income or ex- cluding a tractor or lawn tractor), boat, or a provided to such creditor by the debtor or penditures over the 12-month period fol- motorized recreational device, conveyance, the court later than 5 days after the court lowing the date of the filing of the peti- vehicle, watercraft, or aircraft.’’. and the debtor receive such creditor’s notice tion;’’; and (b) STUDY.—Not later than 2 years after the of address, shall be provided to such address. date of enactment of this Act, the Director ‘‘(f)(1) An entity may file with any bank- (2) by adding at the end the following: of the Executive Office for United States ruptcy court a notice of address to be used ‘‘(e)(1) If the debtor in a case under chapter Trustees shall submit a report to the Com- by all the bankruptcy courts or by particular 7 or 13 is an individual and if a creditor files mittee on the Judiciary of the Senate and bankruptcy courts, as so specified by such with the court at any time a request to re- the Committee on the Judiciary of the House entity at the time such notice is filed, to ceive a copy of the petition, schedules, and of Representatives containing its findings re- provide notice to such entity in all cases statement of financial affairs filed by the garding utilization of the definition of house- under chapters 7 and 13 pending in the courts debtor, then the court shall make such peti- hold goods, as defined in section 522(f)(4) of with respect to which such notice is filed, in tion, such schedules, and such statement title 11, United States Code, as added by sub- which such entity is a creditor. available to such creditor. section (a), with respect to the avoidance of ‘‘(2) In any case filed under chapter 7 or 13, ‘‘(2)(A) The debtor shall provide— nonpossessory, nonpurchase money security any notice required to be provided by a court ‘‘(i) not later than 7 days before the date interests in household goods under section with respect to which a notice is filed under first set for the first meeting of creditors, to 522(f)(1)(B) of title 11, United States Code, paragraph (1), to such entity later than 30 the trustee a copy of the Federal income tax and the impact such section 522(f)(4) has had days after the filing of such notice under return required under applicable law (or at on debtors and on the bankruptcy courts. paragraph (1) shall be provided to such ad- the election of the debtor, a transcript of Such report may include recommendations dress unless with respect to a particular case such return) for the most recent tax year for amendments to such section 522(f)(4) con- a different address is specified in a notice ending immediately before the commence- sistent with the Director’s findings. filed and served in accordance with sub- ment of the case and for which a Federal in- SEC. 314. DEBT INCURRED TO PAY NON- section (e). come tax return was filed; and DISCHARGEABLE DEBTS. ‘‘(3) A notice filed under paragraph (1) may ‘‘(ii) at the same time the debtor complies (a) IN GENERAL.—Section 523(a) of title 11, be withdrawn by such entity. with clause (i), a copy of such return (or if United States Code, is amended by inserting ‘‘(g)(1) Notice provided to a creditor by the elected under clause (i), such transcript) to after paragraph (14) the following: debtor or the court other than in accordance any creditor that timely requests such copy. ‘‘(14A) incurred to pay a tax to a govern- with this section (excluding this subsection) ‘‘(B) If the debtor fails to comply with mental unit, other than the United States, shall not be effective notice until such no- clause (i) or (ii) of subparagraph (A), the

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00107 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S788 CONGRESSIONAL RECORD — SENATE February 1, 2005 court shall dismiss the case unless the debt- ‘‘(1) a document that establishes the iden- and not later than 45 days after the date of or demonstrates that the failure to so com- tity of the debtor, including a driver’s li- the meeting of creditors under section 341(a), ply is due to circumstances beyond the con- cense, passport, or other document that con- unless the court determines that it would be trol of the debtor. tains a photograph of the debtor; or in the best interests of the creditors and the ‘‘(C) If a creditor requests a copy of such ‘‘(2) such other personal identifying infor- estate to hold such hearing at an earlier date tax return or such transcript and if the debt- mation relating to the debtor that estab- and there is no objection to such earlier or fails to provide a copy of such tax return lishes the identity of the debtor.’’. date.’’. or such transcript to such creditor at the (c)(1) Not later than 180 days after the date time the debtor provides such tax return or of the enactment of this Act, the Director of SEC. 318. CHAPTER 13 PLANS TO HAVE A 5-YEAR DURATION IN CERTAIN CASES. such transcript to the trustee, then the court the Administrative Office of the United shall dismiss the case unless the debtor dem- States Courts shall establish procedures for Title 11, United States Code, is amended— onstrates that the failure to provide a copy safeguarding the confidentiality of any tax (1) by amending section 1322(d) to read as of such tax return or such transcript is due information required to be provided under follows: to circumstances beyond the control of the this section. ‘‘(d)(1) If the current monthly income of debtor. (2) The procedures under paragraph (1) the debtor and the debtor’s spouse combined, ‘‘(3) If a creditor in a case under chapter 13 shall include restrictions on creditor access when multiplied by 12, is not less than— files with the court at any time a request to to tax information that is required to be pro- ‘‘(A) in the case of a debtor in a household receive a copy of the plan filed by the debtor, vided under this section. of 1 person, the median family income of the (3) Not later than 540 days after the date of then the court shall make available to such applicable State for 1 earner; enactment of this Act, the Director of the creditor a copy of the plan— ‘‘(B) in the case of a debtor in a household Administrative Office of the United States ‘‘(A) at a reasonable cost; and of 2, 3, or 4 individuals, the highest median Courts shall prepare and submit to the Presi- ‘‘(B) not later than 5 days after such re- family income of the applicable State for a dent pro tempore of the Senate and the quest is filed. family of the same number or fewer individ- ‘‘(f) At the request of the court, the United Speaker of the House of Representatives a uals; or States trustee, or any party in interest in a report that— ‘‘(C) in the case of a debtor in a household case under chapter 7, 11, or 13, a debtor who (A) assesses the effectiveness of the proce- exceeding 4 individuals, the highest median is an individual shall file with the court— dures established under paragraph (1); and family income of the applicable State for a ‘‘(1) at the same time filed with the taxing (B) if appropriate, includes proposed legis- family of 4 or fewer individuals, plus $525 per authority, a copy of each Federal income tax lation to— month for each individual in excess of 4, return required under applicable law (or at (i) further protect the confidentiality of the election of the debtor, a transcript of tax information; and the plan may not provide for payments over such tax return) with respect to each tax (ii) provide penalties for the improper use a period that is longer than 5 years. year of the debtor ending while the case is by any person of the tax information re- ‘‘(2) If the current monthly income of the pending under such chapter; quired to be provided under this section. debtor and the debtor’s spouse combined, ‘‘(2) at the same time filed with the taxing SEC. 316. DISMISSAL FOR FAILURE TO TIMELY when multiplied by 12, is less than— authority, each Federal income tax return FILE SCHEDULES OR PROVIDE RE- ‘‘(A) in the case of a debtor in a household required under applicable law (or at the elec- QUIRED INFORMATION. of 1 person, the median family income of the tion of the debtor, a transcript of such tax Section 521 of title 11, United States Code, applicable State for 1 earner; return) that had not been filed with such au- as amended by sections 106, 225, 305, and 315, ‘‘(B) in the case of a debtor in a household thority as of the date of the commencement is amended by adding at the end the fol- of 2, 3, or 4 individuals, the highest median of the case and that was subsequently filed lowing: family income of the applicable State for a ‘‘(i)(1) Subject to paragraphs (2) and (4) and for any tax year of the debtor ending in the family of the same number or fewer individ- notwithstanding section 707(a), if an indi- 3-year period ending on the date of the com- uals; or vidual debtor in a voluntary case under mencement of the case; ‘‘(C) in the case of a debtor in a household chapter 7 or 13 fails to file all of the informa- ‘‘(3) a copy of each amendment to any Fed- exceeding 4 individuals, the highest median tion required under subsection (a)(1) within eral income tax return or transcript filed family income of the applicable State for a 45 days after the date of the filing of the pe- with the court under paragraph (1) or (2); and family of 4 or fewer individuals, plus $525 per tition, the case shall be automatically dis- ‘‘(4) in a case under chapter 13— missed effective on the 46th day after the month for each individual in excess of 4, ‘‘(A) on the date that is either 90 days after date of the filing of the petition. the plan may not provide for payments over the end of such tax year or 1 year after the ‘‘(2) Subject to paragraph (4) and with re- a period that is longer than 3 years, unless date of the commencement of the case, spect to a case described in paragraph (1), the court, for cause, approves a longer pe- whichever is later, if a plan is not confirmed any party in interest may request the court riod, but the court may not approve a period before such later date; and to enter an order dismissing the case. If re- that is longer than 5 years.’’; ‘‘(B) annually after the plan is confirmed quested, the court shall enter an order of dis- (2) in section 1325(b)(1)(B), by striking and until the case is closed, not later than missal not later than 5 days after such re- ‘‘three-year period’’ and inserting ‘‘applica- the date that is 45 days before the anniver- quest. ble commitment period’’; and sary of the confirmation of the plan; ‘‘(3) Subject to paragraph (4) and upon re- (3) in section 1325(b), as amended by sec- a statement, under penalty of perjury, of the quest of the debtor made within 45 days after tion 102, by adding at the end the following: income and expenditures of the debtor dur- the date of the filing of the petition de- ‘‘(4) For purposes of this subsection, the ing the tax year of the debtor most recently scribed in paragraph (1), the court may allow ‘applicable commitment period’— concluded before such statement is filed the debtor an additional period of not to ex- ‘‘(A) subject to subparagraph (B), shall be— under this paragraph, and of the monthly in- ceed 45 days to file the information required ‘‘(i) 3 years; or come of the debtor, that shows how income, under subsection (a)(1) if the court finds jus- ‘‘(ii) not less than 5 years, if the current expenditures, and monthly income are cal- tification for extending the period for the fil- monthly income of the debtor and the debt- culated. ing. ‘‘(g)(1) A statement referred to in sub- ‘‘(4) Notwithstanding any other provision or’s spouse combined, when multiplied by 12, section (f)(4) shall disclose— of this subsection, on the motion of the is not less than— ‘‘(A) the amount and sources of the income trustee filed before the expiration of the ap- ‘‘(I) in the case of a debtor in a household of the debtor; plicable period of time specified in paragraph of 1 person, the median family income of the ‘‘(B) the identity of any person responsible (1), (2), or (3), and after notice and a hearing, applicable State for 1 earner; with the debtor for the support of any de- the court may decline to dismiss the case if ‘‘(II) in the case of a debtor in a household pendent of the debtor; and the court finds that the debtor attempted in of 2, 3, or 4 individuals, the highest median ‘‘(C) the identity of any person who con- good faith to file all the information re- family income of the applicable State for a tributed, and the amount contributed, to the quired by subsection (a)(1)(B)(iv) and that family of the same number or fewer individ- household in which the debtor resides. the best interests of creditors would be uals; or ‘‘(2) The tax returns, amendments, and served by administration of the case.’’. ‘‘(III) in the case of a debtor in a household exceeding 4 individuals, the highest median statement of income and expenditures de- SEC. 317. ADEQUATE TIME TO PREPARE FOR scribed in subsections (e)(2)(A) and (f) shall HEARING ON CONFIRMATION OF family income of the applicable State for a be available to the United States trustee (or THE PLAN. family of 4 or fewer individuals, plus $525 per the bankruptcy administrator, if any), the Section 1324 of title 11, United States Code, month for each individual in excess of 4; and trustee, and any party in interest for inspec- is amended— ‘‘(B) may be less than 3 or 5 years, which- tion and copying, subject to the require- (1) by striking ‘‘After’’ and inserting the ever is applicable under subparagraph (A), ments of section 315(c) of the Bankruptcy following: but only if the plan provides for payment in Abuse Prevention and Consumer Protection ‘‘(a) Except as provided in subsection (b) full of all allowed unsecured claims over a Act of 2005. and after’’; and shorter period.’’; and ‘‘(h) If requested by the United States (2) by adding at the end the following: (4) in section 1329(c), by striking ‘‘three trustee or by the trustee, the debtor shall ‘‘(b) The hearing on confirmation of the years’’ and inserting ‘‘the applicable com- provide— plan may be held not earlier than 20 days mitment period under section 1325(b)(1)(B)’’.

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SEC. 319. SENSE OF CONGRESS REGARDING EX- (c) CONFIRMATION OF PLAN.— notice and a hearing, and such modification PANSION OF RULE 9011 OF THE FED- (1) REQUIREMENTS RELATING TO VALUE OF is approved.’’. ERAL RULES OF BANKRUPTCY PRO- PROPERTY.—Section 1129(a) of title 11, United SEC. 322. LIMITATIONS ON HOMESTEAD EXEMP- CEDURE. States Code, as amended by section 213, is TION. It is the sense of Congress that rule 9011 of amended by adding at the end the following: (a) EXEMPTIONS.—Section 522 of title 11, the Federal Rules of Bankruptcy Procedure ‘‘(15) In a case in which the debtor is an in- United States Code, as amended by sections (11 U.S.C. App.) should be modified to include dividual and in which the holder of an al- 224 and 308, is amended by adding at the end a requirement that all documents (including the following: schedules), signed and unsigned, submitted lowed unsecured claim objects to the con- firmation of the plan— ‘‘(p)(1) Except as provided in paragraph (2) to the court or to a trustee by debtors who of this subsection and sections 544 and 548, as represent themselves and debtors who are ‘‘(A) the value, as of the effective date of the plan, of the property to be distributed a result of electing under subsection (b)(3)(A) represented by attorneys be submitted only to exempt property under State or local law, after the debtors or the debtors’ attorneys under the plan on account of such claim is not less than the amount of such claim; or a debtor may not exempt any amount of in- have made reasonable inquiry to verify that terest that was acquired by the debtor dur- the information contained in such docu- ‘‘(B) the value of the property to be distrib- uted under the plan is not less than the pro- ing the 1215-day period preceding the date of ments is— the filing of the petition that exceeds in the jected disposable income of the debtor (as de- (1) well grounded in fact; and aggregate $125,000 in value in— fined in section 1325(b)(2)) to be received dur- (2) warranted by existing law or a good ‘‘(A) real or personal property that the ing the 5-year period beginning on the date faith argument for the extension, modifica- debtor or a dependent of the debtor uses as a that the first payment is due under the plan, tion, or reversal of existing law. residence; or during the period for which the plan pro- SEC. 320. PROMPT RELIEF FROM STAY IN INDI- ‘‘(B) a cooperative that owns property that vides payments, whichever is longer.’’. VIDUAL CASES. the debtor or a dependent of the debtor uses (2) REQUIREMENT RELATING TO INTERESTS IN Section 362(e) of title 11, United States as a residence; PROPERTY.—Section 1129(b)(2)(B)(ii) of title Code, is amended— ‘‘(C) a burial plot for the debtor or a de- 11, United States Code, is amended by insert- (1) by inserting ‘‘(1)’’ after ‘‘(e)’’; and pendent of the debtor; or ing before the period at the end the fol- (2) by adding at the end the following: ‘‘(D) real or personal property that the ‘‘(2) Notwithstanding paragraph (1), in a lowing: ‘‘, except that in a case in which the debtor or dependent of the debtor claims as case under chapter 7, 11, or 13 in which the debtor is an individual, the debtor may re- a homestead. debtor is an individual, the stay under sub- tain property included in the estate under ‘‘(2)(A) The limitation under paragraph (1) section (a) shall terminate on the date that section 1115, subject to the requirements of shall not apply to an exemption claimed is 60 days after a request is made by a party subsection (a)(14) of this section’’. under subsection (b)(3)(A) by a family farmer (d) EFFECT OF CONFIRMATION.—Section in interest under subsection (d), unless— for the principal residence of such farmer. ‘‘(A) a final decision is rendered by the 1141(d) of title 11, United States Code, is ‘‘(B) For purposes of paragraph (1), any court during the 60-day period beginning on amended— amount of such interest does not include any the date of the request; or (1) in paragraph (2), by striking ‘‘The con- interest transferred from a debtor’s previous ‘‘(B) such 60-day period is extended— firmation of a plan does not discharge an in- principal residence (which was acquired prior ‘‘(i) by agreement of all parties in interest; dividual debtor’’ and inserting ‘‘A discharge to the beginning of such 1215-day period) into or under this chapter does not discharge a debt- the debtor’s current principal residence, if ‘‘(ii) by the court for such specific period of or who is an individual’’; and the debtor’s previous and current residences time as the court finds is required for good (2) by adding at the end the following: are located in the same State. cause, as described in findings made by the ‘‘(5) In a case in which the debtor is an in- ‘‘(q)(1) As a result of electing under sub- court.’’. dividual— section (b)(3)(A) to exempt property under SEC. 321. CHAPTER 11 CASES FILED BY INDIVID- ‘‘(A) unless after notice and a hearing the State or local law, a debtor may not exempt UALS. court orders otherwise for cause, confirma- any amount of an interest in property de- (a) PROPERTY OF THE ESTATE.— tion of the plan does not discharge any debt scribed in subparagraphs (A), (B), (C), and (D) (1) IN GENERAL.—Subchapter I of chapter 11 provided for in the plan until the court of subsection (p)(1) which exceeds in the ag- of title 11, United States Code, is amended by grants a discharge on completion of all pay- gregate $125,000 if— adding at the end the following: ments under the plan; ‘‘(A) the court determines, after notice and ‘‘§ 1115. Property of the estate ‘‘(B) at any time after the confirmation of a hearing, that the debtor has been convicted ‘‘(a) In a case in which the debtor is an in- the plan, and after notice and a hearing, the of a felony (as defined in section 3156 of title dividual, property of the estate includes, in court may grant a discharge to the debtor 18), which under the circumstances, dem- addition to the property specified in section who has not completed payments under the onstrates that the filing of the case was an 541— plan if— abuse of the provisions of this title; or ‘‘(1) all property of the kind specified in ‘‘(i) the value, as of the effective date of ‘‘(B) the debtor owes a debt arising from— section 541 that the debtor acquires after the the plan, of property actually distributed ‘‘(i) any violation of the Federal securities commencement of the case but before the under the plan on account of each allowed laws (as defined in section 3(a)(47) of the Se- case is closed, dismissed, or converted to a unsecured claim is not less than the amount curities Exchange Act of 1934), any State se- case under chapter 7, 12, or 13, whichever oc- that would have been paid on such claim if curities laws, or any regulation or order curs first; and the estate of the debtor had been liquidated issued under Federal securities laws or State ‘‘(2) earnings from services performed by under chapter 7 on such date; and securities laws; the debtor after the commencement of the ‘‘(ii) modification of the plan under section ‘‘(ii) fraud, deceit, or manipulation in a fi- case but before the case is closed, dismissed, 1127 is not practicable; and’’. duciary capacity or in connection with the ODIFICATION OF PLAN.—Section 1127 of or converted to a case under chapter 7, 12, or (e) M purchase or sale of any security registered title 11, United States Code, is amended by 13, whichever occurs first. under section 12 or 15(d) of the Securities Ex- ‘‘(b) Except as provided in section 1104 or a adding at the end the following: change Act of 1934 or under section 6 of the ‘‘(e) If the debtor is an individual, the plan confirmed plan or order confirming a plan, Securities Act of 1933; may be modified at any time after confirma- the debtor shall remain in possession of all ‘‘(iii) any civil remedy under section 1964 of tion of the plan but before the completion of property of the estate.’’. title 18; or payments under the plan, whether or not the (2) CLERICAL AMENDMENT.—The table of ‘‘(iv) any criminal act, intentional tort, or plan has been substantially consummated, sections for subchapter I of chapter 11 of willful or reckless misconduct that caused upon request of the debtor, the trustee, the title 11, United States Code, is amended by serious physical injury or death to another United States trustee, or the holder of an al- adding at the end the following: individual in the preceding 5 years. lowed unsecured claim, to— ‘‘1115. Property of the estate.’’. ‘‘(2) Paragraph (1) shall not apply to the ‘‘(1) increase or reduce the amount of pay- extent the amount of an interest in property (b) CONTENTS OF PLAN.—Section 1123(a) of ments on claims of a particular class pro- described in subparagraphs (A), (B), (C), and title 11, United States Code, is amended— vided for by the plan; (D) of subsection (p)(1) is reasonably nec- (1) in paragraph (6), by striking ‘‘and’’ at ‘‘(2) extend or reduce the time period for essary for the support of the debtor and any the end; such payments; or dependent of the debtor.’’. (2) in paragraph (7), by striking the period ‘‘(3) alter the amount of the distribution to (b) ADJUSTMENT OF DOLLAR AMOUNTS.— and inserting ‘‘; and’’; and a creditor whose claim is provided for by the Paragraphs (1) and (2) of section 104(b) of (3) by adding at the end the following: plan to the extent necessary to take account title 11, United States Code, as amended by ‘‘(8) in a case in which the debtor is an in- of any payment of such claim made other section 224, are amended by inserting ‘‘522(p), dividual, provide for the payment to credi- than under the plan. 522(q),’’ after ‘‘522(n),’’. tors under the plan of all or such portion of ‘‘(f)(1) Sections 1121 through 1128 and the SEC. 323. EXCLUDING EMPLOYEE BENEFIT PLAN earnings from personal services performed requirements of section 1129 apply to any PARTICIPANT CONTRIBUTIONS AND by the debtor after the commencement of modification under subsection (a). OTHER PROPERTY FROM THE ES- the case or other future income of the debtor ‘‘(2) The plan, as modified, shall become TATE. as is necessary for the execution of the the plan only after there has been disclosure Section 541(b) of title 11, United States plan.’’. under section 1125 as the court may direct, Code, as amended by section 225, is amended

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00109 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S790 CONGRESSIONAL RECORD — SENATE February 1, 2005 by adding after paragraph (6), as added by ‘‘(B) 70.00 percent of the fees collected (C) by striking paragraph (4); section 225(a)(1)(C), the following: under section 1930(a)(1)(B) of this title in (3) in subsection (d)— ‘‘(7) any amount— cases commenced under chapter 13 of title (A) by striking paragraphs (5) through (9); ‘‘(A) withheld by an employer from the 11;’’; and wages of employees for payment as contribu- (2) in paragraph (2), by striking ‘‘one-half’’ (B) by redesignating paragraph (10) as tions— and inserting ‘‘three-fourths’’; and paragraph (5); and ‘‘(i) to— (3) in paragraph (4), by striking ‘‘one-half’’ (4) in subsection (f)(1) by striking ‘‘; except ‘‘(I) an employee benefit plan that is sub- and inserting ‘‘100 percent’’. that’’ and all that follows through the end of ject to title I of the Employee Retirement (c) COLLECTION AND DEPOSIT OF MISCELLA- the paragraph and inserting a period. Income Security Act of 1974 or under an em- NEOUS BANKRUPTCY FEES.—Section 406(b) of (b) IMPAIRMENT OF CLAIMS OR INTERESTS.— ployee benefit plan which is a governmental the Judiciary Appropriations Act, 1990 (28 Section 1124(2) of title 11, United States plan under section 414(d) of the Internal Rev- U.S.C. 1931 note) is amended by striking Code, is amended— enue Code of 1986; ‘‘pursuant to 28 U.S.C. section 1930(b)’’ and (1) in subparagraph (A), by inserting ‘‘or of ‘‘(II) a deferred compensation plan under all that follows through ‘‘28 U.S.C. section a kind that section 365(b)(2) expressly does section 457 of the Internal Revenue Code of 1931’’ and inserting ‘‘under section 1930(b) of not require to be cured’’ before the semi- 1986; or title 28, United States Code, and 31.25 per- colon at the end; ‘‘(III) a tax-deferred annuity under section cent of the fees collected under section (2) in subparagraph (C), by striking ‘‘and’’ 403(b) of the Internal Revenue Code of 1986; 1930(a)(1)(A) of that title, 30.00 percent of the at the end; except that such amount under this subpara- fees collected under section 1930(a)(1)(B) of (3) by redesignating subparagraph (D) as graph shall not constitute disposable income that title, and 25 percent of the fees collected subparagraph (E); and as defined in section 1325(b)(2); or under section 1930(a)(3) of that title shall be (4) by inserting after subparagraph (C) the ‘‘(ii) to a health insurance plan regulated deposited as offsetting receipts to the fund following: by State law whether or not subject to such established under section 1931 of that title’’. ‘‘(D) if such claim or such interest arises title; or SEC. 326. SHARING OF COMPENSATION. from any failure to perform a nonmonetary ‘‘(B) received by an employer from employ- Section 504 of title 11, United States Code, obligation, other than a default arising from ees for payment as contributions— is amended by adding at the end the fol- failure to operate a nonresidential real prop- ‘‘(i) to— lowing: erty lease subject to section 365(b)(1)(A), ‘‘(I) an employee benefit plan that is sub- ‘‘(c) This section shall not apply with re- compensates the holder of such claim or such ject to title I of the Employee Retirement spect to sharing, or agreeing to share, com- interest (other than the debtor or an insider) Income Security Act of 1974 or under an em- pensation with a bona fide public service at- for any actual pecuniary loss incurred by ployee benefit plan which is a governmental torney referral program that operates in ac- such holder as a result of such failure; and’’. plan under section 414(d) of the Internal Rev- cordance with non-Federal law regulating at- SEC. 329. CLARIFICATION OF POSTPETITION enue Code of 1986; torney referral services and with rules of WAGES AND BENEFITS. ‘‘(II) a deferred compensation plan under professional responsibility applicable to at- Section 503(b)(1)(A) of title 11, United section 457 of the Internal Revenue Code of torney acceptance of referrals.’’. States Code, is amended to read as follows: 1986; or SEC. 327. FAIR VALUATION OF COLLATERAL. ‘‘(A) the actual, necessary costs and expenses ‘‘(III) a tax-deferred annuity under section Section 506(a) of title 11, United States of preserving the estate including— 403(b) of the Internal Revenue Code of 1986; Code, is amended by— ‘‘(i) wages, salaries, and commissions for except that such amount under this subpara- (1) inserting ‘‘(1)’’ after ‘‘(a)’’; and services rendered after the commencement graph shall not constitute disposable in- (2) by adding at the end the following: of the case; and come, as defined in section 1325(b)(2); or ‘‘(2) If the debtor is an individual in a case ‘‘(ii) wages and benefits awarded pursuant ‘‘(ii) to a health insurance plan regulated under chapter 7 or 13, such value with re- to a judicial proceeding or a proceeding of by State law whether or not subject to such spect to personal property securing an al- the National Labor Relations Board as back title;’’. lowed claim shall be determined based on the pay attributable to any period of time occur- SEC. 324. EXCLUSIVE JURISDICTION IN MATTERS replacement value of such property as of the ring after commencement of the case under INVOLVING BANKRUPTCY PROFES- date of the filing of the petition without de- this title, as a result of a violation of Fed- SIONALS. duction for costs of sale or marketing. With eral or State law by the debtor, without re- (a) IN GENERAL.—Section 1334 of title 28, respect to property acquired for personal, gard to the time of the occurrence of unlaw- United States Code, is amended— family, or household purposes, replacement ful conduct on which such award is based or (1) in subsection (b), by striking ‘‘Notwith- value shall mean the price a retail merchant to whether any services were rendered, if the standing’’ and inserting ‘‘Except as provided would charge for property of that kind con- court determines that payment of wages and in subsection (e)(2), and notwithstanding’’; sidering the age and condition of the prop- benefits by reason of the operation of this and erty at the time value is determined.’’. clause will not substantially increase the (2) by striking subsection (e) and inserting SEC. 328. DEFAULTS BASED ON NONMONETARY probability of layoff or termination of cur- the following: OBLIGATIONS. rent employees, or of nonpayment of domes- ‘‘(e) The district court in which a case (a) EXECUTORY CONTRACTS AND UNEXPIRED tic support obligations, during the case under title 11 is commenced or is pending LEASES.—Section 365 of title 11, United under this title;’’. shall have exclusive jurisdiction— States Code, is amended— SEC. 330. DELAY OF DISCHARGE DURING PEND- ‘‘(1) of all the property, wherever located, (1) in subsection (b)— ENCY OF CERTAIN PROCEEDINGS. of the debtor as of the commencement of (A) in paragraph (1)(A), by striking the (a) CHAPTER 7.—Section 727(a) of title 11, such case, and of property of the estate; and semicolon at the end and inserting the fol- United States Code, as amended by section ‘‘(2) over all claims or causes of action that lowing: ‘‘other than a default that is a 106, is amended— involve construction of section 327 of title 11, breach of a provision relating to the satisfac- (1) in paragraph (10), by striking ‘‘or’’ at United States Code, or rules relating to dis- tion of any provision (other than a penalty the end; closure requirements under section 327.’’. rate or penalty provision) relating to a de- (2) in paragraph (11) by striking the period (b) APPLICABILITY.—This section shall only fault arising from any failure to perform at the end and inserting ‘‘; or’’; and apply to cases filed after the date of enact- nonmonetary obligations under an unexpired (3) by inserting after paragraph (11) the fol- ment of this Act. lease of real property, if it is impossible for lowing: SEC. 325. UNITED STATES TRUSTEE PROGRAM the trustee to cure such default by per- ‘‘(12) the court after notice and a hearing FILING FEE INCREASE. forming nonmonetary acts at and after the held not more than 10 days before the date of (a) ACTIONS UNDER CHAPTER 7 OR 13 OF time of assumption, except that if such de- the entry of the order granting the discharge TITLE 11, UNITED STATES CODE.—Section fault arises from a failure to operate in ac- finds that there is reasonable cause to be- 1930(a) of title 28, United States Code, is cordance with a nonresidential real property lieve that— amended by striking paragraph (1) and in- lease, then such default shall be cured by ‘‘(A) section 522(q)(1) may be applicable to serting the following: performance at and after the time of assump- the debtor; and ‘‘(1) For a case commenced— tion in accordance with such lease, and pecu- ‘‘(B) there is pending any proceeding in ‘‘(A) under chapter 7 of title 11, $160; or niary losses resulting from such default shall which the debtor may be found guilty of a ‘‘(B) under chapter 13 of title 11, $150.’’. be compensated in accordance with the pro- felony of the kind described in section (b) UNITED STATES TRUSTEE SYSTEM visions of this paragraph;’’; and 522(q)(1)(A) or liable for a debt of the kind FUND.—Section 589a(b) of title 28, United (B) in paragraph (2)(D), by striking ‘‘pen- described in section 522(q)(1)(B).’’. States Code, is amended— alty rate or provision’’ and inserting ‘‘pen- (b) CHAPTER 11.—Section 1141(d) of title 11, (1) by striking paragraph (1) and inserting alty rate or penalty provision’’; United States Code, as amended by section the following: (2) in subsection (c)— 321, is amended by adding at the end the fol- ‘‘(1)(A) 40.63 percent of the fees collected (A) in paragraph (2), by inserting ‘‘or’’ at lowing: under section 1930(a)(1)(A) of this title in the end; ‘‘(C) unless after notice and a hearing held cases commenced under chapter 7 of title 11; (B) in paragraph (3), by striking ‘‘; or’’ at not more than 10 days before the date of the and the end and inserting a period; and entry of the order granting the discharge,

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00110 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S791 the court finds that there is no reasonable SEC. 402. MEETINGS OF CREDITORS AND EQUITY made to the creditors described in subpara- cause to believe that— SECURITY HOLDERS. graph (A).’’. ‘‘(i) section 522(q)(1) may be applicable to Section 341 of title 11, United States Code, SEC. 406. AMENDMENT TO SECTION 546 OF TITLE the debtor; and is amended by adding at the end the fol- 11, UNITED STATES CODE. ‘‘(ii) there is pending any proceeding in lowing: Section 546 of title 11, United States Code, which the debtor may be found guilty of a ‘‘(e) Notwithstanding subsections (a) and is amended— felony of the kind described in section (b), the court, on the request of a party in in- (1) by redesignating the second subsection 522(q)(1)(A) or liable for a debt of the kind terest and after notice and a hearing, for (g) (as added by section 222(a) of Public Law described in section 522(q)(1)(B).’’. cause may order that the United States 103–394) as subsection (h); (c) CHAPTER 12.—Section 1228 of title 11, trustee not convene a meeting of creditors or (2) in subsection (h), as so redesignated, by United States Code, is amended— equity security holders if the debtor has filed inserting ‘‘and subject to the prior rights of (1) in subsection (a) by striking ‘‘As’’ and a plan as to which the debtor solicited ac- holders of security interests in such goods or inserting ‘‘Subject to subsection (d), as’’, ceptances prior to the commencement of the the proceeds of such goods’’ after ‘‘consent of (2) in subsection (b) by striking ‘‘At’’ and case.’’. a creditor’’; and inserting ‘‘Subject to subsection (d), at’’, and SEC. 403. PROTECTION OF REFINANCE OF SECU- (3) by adding at the end the following: (3) by adding at the end the following: RITY INTEREST. ‘‘(i)(1) Notwithstanding paragraphs (2) and ‘‘(f) The court may not grant a discharge Subparagraphs (A), (B), and (C) of section (3) of section 545, the trustee may not avoid under this chapter unless the court after no- 547(e)(2) of title 11, United States Code, are a warehouseman’s lien for storage, transpor- tice and a hearing held not more than 10 each amended by striking ‘‘10’’ each place it tation, or other costs incidental to the stor- days before the date of the entry of the order appears and inserting ‘‘30’’. age and handling of goods. ‘‘(2) The prohibition under paragraph (1) granting the discharge finds that there is no SEC. 404. EXECUTORY CONTRACTS AND UNEX- shall be applied in a manner consistent with reasonable cause to believe that— PIRED LEASES. any State statute applicable to such lien ‘‘(1) section 522(q)(1) may be applicable to (a) IN GENERAL.—Section 365(d)(4) of title that is similar to section 7–209 of the Uni- the debtor; and 11, United States Code, is amended to read as form Commercial Code, as in effect on the ‘‘(2) there is pending any proceeding in follows: date of enactment of the Bankruptcy Abuse which the debtor may be found guilty of a ‘‘(4)(A) Subject to subparagraph (B), an un- Prevention and Consumer Protection Act of felony of the kind described in section expired lease of nonresidential real property 2005, or any successor to such section 7–209.’’. 522(q)(1)(A) or liable for a debt of the kind under which the debtor is the lessee shall be SEC. 407. AMENDMENTS TO SECTION 330(a) OF described in section 522(q)(1)(B).’’. deemed rejected, and the trustee shall imme- TITLE 11, UNITED STATES CODE. (d) CHAPTER 13.—Section 1328 of title 11, diately surrender that nonresidential real Section 330(a) of title 11, United States United States Code, as amended by section property to the lessor, if the trustee does not Code, is amended— 106, is amended— assume or reject the unexpired lease by the (1) in paragraph (3)— (1) in subsection (a) by striking ‘‘As’’ and earlier of— (A) by striking ‘‘(A) In’’ and inserting inserting ‘‘Subject to subsection (d), as’’, ‘‘(i) the date that is 120 days after the date ‘‘In’’; and (2) in subsection (b) by striking ‘‘At’’ and of the order for relief; or (B) by inserting ‘‘to an examiner, trustee inserting ‘‘Subject to subsection (d), at’’, and ‘‘(ii) the date of the entry of an order con- under chapter 11, or professional person’’ (3) by adding at the end the following: firming a plan. after ‘‘awarded’’; and ‘‘(h) The court may not grant a discharge ‘‘(B)(i) The court may extend the period de- (2) by adding at the end the following: under this chapter unless the court after no- termined under subparagraph (A), prior to ‘‘(7) In determining the amount of reason- tice and a hearing held not more than 10 the expiration of the 120-day period, for 90 able compensation to be awarded to a trust- days before the date of the entry of the order days on the motion of the trustee or lessor ee, the court shall treat such compensation granting the discharge finds that there is no for cause. as a commission, based on section 326.’’. reasonable cause to believe that— ‘‘(ii) If the court grants an extension under SEC. 408. POSTPETITION DISCLOSURE AND SO- ‘‘(1) section 522(q)(1) may be applicable to clause (i), the court may grant a subsequent LICITATION. the debtor; and extension only upon prior written consent of Section 1125 of title 11, United States Code, ‘‘(2) there is pending any proceeding in the lessor in each instance.’’. is amended by adding at the end the fol- which the debtor may be found guilty of a (b) EXCEPTION.—Section 365(f)(1) of title 11, lowing: felony of the kind described in section United States Code, is amended by striking ‘‘(g) Notwithstanding subsection (b), an ac- 522(q)(1)(A) or liable for a debt of the kind ‘‘subsection’’ the first place it appears and ceptance or rejection of the plan may be so- described in section 522(q)(1)(B).’’. inserting ‘‘subsections (b) and’’. licited from a holder of a claim or interest if TITLE IV—GENERAL AND SMALL SEC. 405. CREDITORS AND EQUITY SECURITY such solicitation complies with applicable BUSINESS BANKRUPTCY PROVISIONS HOLDERS COMMITTEES. nonbankruptcy law and if such holder was (a) APPOINTMENT.—Section 1102(a) of title solicited before the commencement of the Subtitle A—General Business Bankruptcy 11, United States Code, is amended by adding case in a manner complying with applicable Provisions at the end the following: nonbankruptcy law.’’. SEC. 401. ADEQUATE PROTECTION FOR INVES- ‘‘(4) On request of a party in interest and SEC. 409. PREFERENCES. TORS. after notice and a hearing, the court may Section 547(c) of title 11, United States (a) DEFINITION.—Section 101 of title 11, order the United States trustee to change Code, is amended— United States Code, is amended by inserting the membership of a committee appointed (1) by striking paragraph (2) and inserting after paragraph (48) the following: under this subsection, if the court deter- the following: ‘‘(48A) ‘securities self regulatory organiza- mines that the change is necessary to ensure ‘‘(2) to the extent that such transfer was in tion’ means either a securities association adequate representation of creditors or eq- payment of a debt incurred by the debtor in registered with the Securities and Exchange uity security holders. The court may order the ordinary course of business or financial Commission under section 15A of the Securi- the United States trustee to increase the affairs of the debtor and the transferee, and ties Exchange Act of 1934 or a national secu- number of members of a committee to in- such transfer was— rities exchange registered with the Securi- clude a creditor that is a small business con- ‘‘(A) made in the ordinary course of busi- ties and Exchange Commission under section cern (as described in section 3(a)(1) of the ness or financial affairs of the debtor and the 6 of the Securities Exchange Act of 1934;’’. Small Business Act), if the court determines transferee; or (b) AUTOMATIC STAY.—Section 362(b) of that the creditor holds claims (of the kind ‘‘(B) made according to ordinary business title 11, United States Code, as amended by represented by the committee) the aggregate terms;’’; sections 224, 303, and 311, is amended by in- amount of which, in comparison to the an- (2) in paragraph (8), by striking the period serting after paragraph (24) the following: nual gross revenue of that creditor, is dis- at the end and inserting ‘‘; or’’; and ‘‘(25) under subsection (a), of— proportionately large.’’. (3) by adding at the end the following: ‘‘(A) the commencement or continuation of (b) INFORMATION.—Section 1102(b) of title ‘‘(9) if, in a case filed by a debtor whose an investigation or action by a securities self 11, United States Code, is amended by adding debts are not primarily consumer debts, the regulatory organization to enforce such or- at the end the following: aggregate value of all property that con- ganization’s regulatory power; ‘‘(3) A committee appointed under sub- stitutes or is affected by such transfer is less ‘‘(B) the enforcement of an order or deci- section (a) shall— than $5,000.’’. sion, other than for monetary sanctions, ob- ‘‘(A) provide access to information for SEC. 410. VENUE OF CERTAIN PROCEEDINGS. tained in an action by such securities self creditors who— Section 1409(b) of title 28, United States regulatory organization to enforce such or- ‘‘(i) hold claims of the kind represented by Code, is amended by inserting ‘‘, or a debt ganization’s regulatory power; or that committee; and (excluding a consumer debt) against a non- ‘‘(C) any act taken by such securities self ‘‘(ii) are not appointed to the committee; insider of less than $10,000,’’ after ‘‘$5,000’’. regulatory organization to delist, delete, or ‘‘(B) solicit and receive comments from the SEC. 411. PERIOD FOR FILING PLAN UNDER refuse to permit quotation of any stock that creditors described in subparagraph (A); and CHAPTER 11. does not meet applicable regulatory require- ‘‘(C) be subject to a court order that com- Section 1121(d) of title 11, United States ments;’’. pels any additional report or disclosure to be Code, is amended—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00111 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S792 CONGRESSIONAL RECORD — SENATE February 1, 2005 (1) by striking ‘‘On’’ and inserting ‘‘(1) paragraph (1), the United States trustee the Judicial Conference under subsections Subject to paragraph (2), on’’; and shall file a report certifying that election. (b) and (c) that is payable to the clerk upon (2) by adding at the end the following: ‘‘(B) Upon the filing of a report under sub- the commencement of a case under chapter ‘‘(2)(A) The 120-day period specified in paragraph (A)— 7. paragraph (1) may not be extended beyond a ‘‘(i) the trustee elected under paragraph (1) ‘‘(2) The district court or the bankruptcy date that is 18 months after the date of the shall be considered to have been selected and court may waive for such debtors other fees order for relief under this chapter. appointed for purposes of this section; and prescribed under subsections (b) and (c). ‘‘(B) The 180-day period specified in para- ‘‘(ii) the service of any trustee appointed ‘‘(3) This subsection does not restrict the graph (1) may not be extended beyond a date under subsection (d) shall terminate. district court or the bankruptcy court from that is 20 months after the date of the order ‘‘(C) The court shall resolve any dispute waiving, in accordance with Judicial Con- for relief under this chapter.’’. arising out of an election described in sub- ference policy, fees prescribed under this sec- SEC. 412. FEES ARISING FROM CERTAIN OWNER- paragraph (A).’’. tion for other debtors and creditors.’’. SHIP INTERESTS. SEC. 417. UTILITY SERVICE. SEC. 419. MORE COMPLETE INFORMATION RE- Section 523(a)(16) of title 11, United States Section 366 of title 11, United States Code, GARDING ASSETS OF THE ESTATE. Code, is amended— is amended— (a) IN GENERAL.— (1) by striking ‘‘dwelling’’ the first place it (1) in subsection (a), by striking ‘‘sub- (1) DISCLOSURE.—The Judicial Conference appears; section (b)’’ and inserting ‘‘subsections (b) of the United States, in accordance with sec- (2) by striking ‘‘ownership or’’ and insert- and (c)’’; and tion 2075 of title 28 of the United States Code ing ‘‘ownership,’’; (2) by adding at the end the following: and after consideration of the views of the (3) by striking ‘‘housing’’ the first place it ‘‘(c)(1)(A) For purposes of this subsection, Director of the Executive Office for United appears; and the term ‘assurance of payment’ means— States Trustees, shall propose amended Fed- (4) by striking ‘‘but only’’ and all that fol- ‘‘(i) a cash deposit; eral Rules of Bankruptcy Procedure and in lows through ‘‘such period,’’ and inserting ‘‘(ii) a letter of credit; accordance with rule 9009 of the Federal ‘‘or a lot in a homeowners association, for as ‘‘(iii) a certificate of deposit; Rules of Bankruptcy Procedure shall pre- long as the debtor or the trustee has a legal, ‘‘(iv) a surety bond; scribe official bankruptcy forms directing equitable, or possessory ownership interest ‘‘(v) a prepayment of utility consumption; debtors under chapter 11 of title 11 of United in such unit, such corporation, or such lot,’’. or States Code, to disclose the information de- SEC. 413. CREDITOR REPRESENTATION AT FIRST ‘‘(vi) another form of security that is mu- scribed in paragraph (2) by filing and serving MEETING OF CREDITORS. tually agreed on between the utility and the periodic financial and other reports designed Section 341(c) of title 11, United States debtor or the trustee. to provide such information. Code, is amended by inserting at the end the ‘‘(B) For purposes of this subsection an ad- (2) INFORMATION.—The information referred following: ‘‘Notwithstanding any local court ministrative expense priority shall not con- to in paragraph (1) is the value, operations, rule, provision of a State constitution, any stitute an assurance of payment. and profitability of any closely held corpora- otherwise applicable nonbankruptcy law, or ‘‘(2) Subject to paragraphs (3) and (4), with tion, partnership, or of any other entity in any other requirement that representation respect to a case filed under chapter 11, a which the debtor holds a substantial or con- at the meeting of creditors under subsection utility referred to in subsection (a) may trolling interest. (a) be by an attorney, a creditor holding a alter, refuse, or discontinue utility service, (b) PURPOSE.—The purpose of the rules and consumer debt or any representative of the if during the 30-day period beginning on the reports under subsection (a) shall be to assist creditor (which may include an entity or an date of the filing of the petition, the utility parties in interest taking steps to ensure employee of an entity and may be a rep- does not receive from the debtor or the that the debtor’s interest in any entity re- resentative for more than 1 creditor) shall be trustee adequate assurance of payment for ferred to in subsection (a)(2) is used for the permitted to appear at and participate in the utility service that is satisfactory to the payment of allowed claims against debtor. meeting of creditors in a case under chapter utility. Subtitle B—Small Business Bankruptcy 7 or 13, either alone or in conjunction with ‘‘(3)(A) On request of a party in interest Provisions an attorney for the creditor. Nothing in this and after notice and a hearing, the court SEC. 431. FLEXIBLE RULES FOR DISCLOSURE subsection shall be construed to require any may order modification of the amount of an STATEMENT AND PLAN. creditor to be represented by an attorney at assurance of payment under paragraph (2). Section 1125 of title 11, United States Code, any meeting of creditors.’’. ‘‘(B) In making a determination under this is amended— SEC. 414. DEFINITION OF DISINTERESTED PER- paragraph whether an assurance of payment (1) in subsection (a)(1), by inserting before SON. is adequate, the court may not consider— the semicolon ‘‘and in determining whether Section 101(14) of title 11, United States ‘‘(i) the absence of security before the date a disclosure statement provides adequate in- Code, is amended to read as follows: of the filing of the petition; formation, the court shall consider the com- ‘‘(14) ‘disinterested person’ means a person ‘‘(ii) the payment by the debtor of charges plexity of the case, the benefit of additional that— for utility service in a timely manner before information to creditors and other parties in ‘‘(A) is not a creditor, an equity security the date of the filing of the petition; or interest, and the cost of providing additional holder, or an insider; ‘‘(iii) the availability of an administrative information’’; and ‘‘(B) is not and was not, within 2 years be- expense priority. (2) by striking subsection (f), and inserting fore the date of the filing of the petition, a ‘‘(4) Notwithstanding any other provision the following: director, officer, or employee of the debtor; of law, with respect to a case subject to this ‘‘(f) Notwithstanding subsection (b), in a and subsection, a utility may recover or set off small business case— ‘‘(C) does not have an interest materially against a security deposit provided to the ‘‘(1) the court may determine that the plan adverse to the interest of the estate or of utility by the debtor before the date of the itself provides adequate information and any class of creditors or equity security filing of the petition without notice or order that a separate disclosure statement is not holders, by reason of any direct or indirect of the court.’’. necessary; relationship to, connection with, or interest SEC. 418. BANKRUPTCY FEES. ‘‘(2) the court may approve a disclosure in, the debtor, or for any other reason;’’. Section 1930 of title 28, United States Code, statement submitted on standard forms ap- SEC. 415. FACTORS FOR COMPENSATION OF PRO- is amended— proved by the court or adopted under section FESSIONAL PERSONS. (1) in subsection (a), by striking ‘‘Notwith- 2075 of title 28; and Section 330(a)(3) of title 11, United States standing section 1915 of this title, the’’ and ‘‘(3)(A) the court may conditionally ap- Code, is amended— inserting ‘‘The’’; and prove a disclosure statement subject to final (1) in subparagraph (D), by striking ‘‘and’’ (2) by adding at the end the following: approval after notice and a hearing; at the end; ‘‘(f)(1) Under the procedures prescribed by ‘‘(B) acceptances and rejections of a plan (2) by redesignating subparagraph (E) as the Judicial Conference of the United States, may be solicited based on a conditionally ap- subparagraph (F); and the district court or the bankruptcy court proved disclosure statement if the debtor (3) by inserting after subparagraph (D) the may waive the filing fee in a case under provides adequate information to each hold- following: chapter 7 of title 11 for an individual if the er of a claim or interest that is solicited, but ‘‘(E) with respect to a professional person, court determines that such individual has in- a conditionally approved disclosure state- whether the person is board certified or oth- come less than 150 percent of the income offi- ment shall be mailed not later than 25 days erwise has demonstrated skill and experience cial poverty line (as defined by the Office of before the date of the hearing on confirma- in the bankruptcy field; and’’. Management and Budget, and revised annu- tion of the plan; and SEC. 416. APPOINTMENT OF ELECTED TRUSTEE. ally in accordance with section 673(2) of the ‘‘(C) the hearing on the disclosure state- Section 1104(b) of title 11, United States Omnibus Budget Reconciliation Act of 1981) ment may be combined with the hearing on Code, is amended— applicable to a family of the size involved confirmation of a plan.’’. (1) by inserting ‘‘(1)’’ after ‘‘(b)’’; and and is unable to pay that fee in installments. SEC. 432. DEFINITIONS. (2) by adding at the end the following: For purposes of this paragraph, the term ‘fil- (a) DEFINITIONS.—Section 101 of title 11, ‘‘(2)(A) If an eligible, disinterested trustee ing fee’ means the filing fee required by sub- United States Code, is amended by striking is elected at a meeting of creditors under section (a), or any other fee prescribed by paragraph (51C) and inserting the following:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00112 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S793 ‘‘(51C) ‘small business case’ means a case ‘‘(B) if the debtor is not in compliance with the court, after notice and a hearing, waives filed under chapter 11 of this title in which the requirements referred to in subparagraph that requirement upon a finding of extraor- the debtor is a small business debtor; (A)(i) or filing tax returns and other required dinary and compelling circumstances; ‘‘(51D) ‘small business debtor’— government filings and making the pay- ‘‘(3) timely file all schedules and state- ‘‘(A) subject to subparagraph (B), means a ments referred to in subparagraph (A)(ii), ments of financial affairs, unless the court, person engaged in commercial or business what the failures are and how, at what cost, after notice and a hearing, grants an exten- activities (including any affiliate of such and when the debtor intends to remedy such sion, which shall not extend such time period person that is also a debtor under this title failures; and to a date later than 30 days after the date of and excluding a person whose primary activ- ‘‘(C) such other matters as are in the best the order for relief, absent extraordinary and ity is the business of owning or operating interests of the debtor and creditors, and in compelling circumstances; real property or activities incidental there- the public interest in fair and efficient pro- ‘‘(4) file all postpetition financial and to) that has aggregate noncontingent liq- cedures under chapter 11 of this title.’’. other reports required by the Federal Rules uidated secured and unsecured debts as of (2) CLERICAL AMENDMENT.—The table of of Bankruptcy Procedure or by local rule of the date of the petition or the date of the sections for chapter 3 of title 11, United the district court; order for relief in an amount not more than States Code, is amended by inserting after ‘‘(5) subject to section 363(c)(2), maintain $2,000,000 (excluding debts owed to 1 or more the item relating to section 307 the fol- insurance customary and appropriate to the affiliates or insiders) for a case in which the lowing: industry; United States trustee has not appointed ‘‘308. Debtor reporting requirements.’’. ‘‘(6)(A) timely file tax returns and other re- under section 1102(a)(1) a committee of unse- (b) EFFECTIVE DATE.—The amendments quired government filings; and cured creditors or where the court has deter- made by subsection (a) shall take effect 60 ‘‘(B) subject to section 363(c)(2), timely pay mined that the committee of unsecured days after the date on which rules are pre- all taxes entitled to administrative expense creditors is not sufficiently active and rep- scribed under section 2075 of title 28, United priority except those being contested by ap- resentative to provide effective oversight of States Code, to establish forms to be used to propriate proceedings being diligently pros- the debtor; and comply with section 308 of title 11, United ecuted; and ‘‘(B) does not include any member of a States Code, as added by subsection (a). ‘‘(7) allow the United States trustee, or a group of affiliated debtors that has aggre- SEC. 435. UNIFORM REPORTING RULES AND designated representative of the United gate noncontingent liquidated secured and FORMS FOR SMALL BUSINESS States trustee, to inspect the debtor’s busi- unsecured debts in an amount greater than CASES. ness premises, books, and records at reason- $2,000,000 (excluding debt owed to 1 or more (a) PROPOSAL OF RULES AND FORMS.—The able times, after reasonable prior written no- affiliates or insiders);’’. Judicial Conference of the United States tice, unless notice is waived by the debtor.’’. (b) CONFORMING AMENDMENT.—Section shall propose in accordance with section 2073 (b) CLERICAL AMENDMENT.—The table of 1102(a)(3) of title 11, United States Code, is of title 28 of the United States Code amended sections for chapter 11 of title 11, United amended by inserting ‘‘debtor’’ after ‘‘small Federal Rules of Bankruptcy Procedure, and States Code, as amended by section 321, is business’’. shall prescribe in accordance with rule 9009 amended by inserting after the item relating (c) ADJUSTMENT OF DOLLAR AMOUNTS.—Sec- of the Federal Rules of Bankruptcy Proce- to section 1115 the following: tion 104(b) of title 11, United States Code, as dure official bankruptcy forms, directing ‘‘1116. Duties of trustee or debtor in posses- amended by section 226, is amended by in- small business debtors to file periodic finan- sion in small business cases.’’. serting ‘‘101(51D),’’ after ‘‘101(3),’’ each place cial and other reports containing informa- SEC. 437. PLAN FILING AND CONFIRMATION it appears. tion, including information relating to— DEADLINES. SEC. 433. STANDARD FORM DISCLOSURE STATE- (1) the debtor’s profitability; Section 1121 of title 11, United States Code, MENT AND PLAN. (2) the debtor’s cash receipts and disburse- is amended by striking subsection (e) and in- Within a reasonable period of time after ments; and serting the following: the date of enactment of this Act, the Judi- (3) whether the debtor is timely filing tax ‘‘(e) In a small business case— cial Conference of the United States shall returns and paying taxes and other adminis- ‘‘(1) only the debtor may file a plan until prescribe in accordance with rule 9009 of the trative expenses when due. after 180 days after the date of the order for Federal Rules of Bankruptcy Procedure offi- (b) PURPOSE.—The rules and forms pro- relief, unless that period is— cial standard form disclosure statements and posed under subsection (a) shall be designed ‘‘(A) extended as provided by this sub- plans of reorganization for small business to achieve a practical balance among— section, after notice and a hearing; or debtors (as defined in section 101 of title 11, (1) the reasonable needs of the bankruptcy ‘‘(B) the court, for cause, orders otherwise; United States Code, as amended by this Act), court, the United States trustee, creditors, ‘‘(2) the plan and a disclosure statement (if designed to achieve a practical balance be- and other parties in interest for reasonably any) shall be filed not later than 300 days tween— complete information; after the date of the order for relief; and (1) the reasonable needs of the courts, the (2) a small business debtor’s interest that ‘‘(3) the time periods specified in para- United States trustee, creditors, and other required reports be easy and inexpensive to graphs (1) and (2), and the time fixed in sec- parties in interest for reasonably complete complete; and tion 1129(e) within which the plan shall be information; and (3) the interest of all parties that the re- confirmed, may be extended only if— (2) economy and simplicity for debtors. quired reports help such debtor to under- ‘‘(A) the debtor, after providing notice to SEC. 434. UNIFORM NATIONAL REPORTING RE- stand such debtor’s financial condition and parties in interest (including the United QUIREMENTS. plan the such debtor’s future. States trustee), demonstrates by a prepon- (a) REPORTING REQUIRED.— SEC. 436. DUTIES IN SMALL BUSINESS CASES. derance of the evidence that it is more likely (1) IN GENERAL.—Chapter 3 of title 11, (a) DUTIES IN CHAPTER 11 CASES.—Sub- than not that the court will confirm a plan United States Code, is amended by inserting chapter I of chapter 11 of title 11, United within a reasonable period of time; after section 307 the following: States Code, as amended by section 321, is ‘‘(B) a new deadline is imposed at the time the extension is granted; and ‘‘§ 308. Debtor reporting requirements amended by adding at the end the following: ‘‘(C) the order extending time is signed be- ‘‘§ 1116. Duties of trustee or debtor in posses- ‘‘(a) For purposes of this section, the term fore the existing deadline has expired.’’. sion in small business cases ‘profitability’ means, with respect to a debt- SEC. 438. PLAN CONFIRMATION DEADLINE. or, the amount of money that the debtor has ‘‘In a small business case, a trustee or the Section 1129 of title 11, United States Code, earned or lost during current and recent fis- debtor in possession, in addition to the du- is amended by adding at the end the fol- cal periods. ties provided in this title and as otherwise lowing: ‘‘(b) A small business debtor shall file peri- required by law, shall— ‘‘(e) In a small business case, the court odic financial and other reports containing ‘‘(1) append to the voluntary petition or, in shall confirm a plan that complies with the information including— an involuntary case, file not later than 7 applicable provisions of this title and that is ‘‘(1) the debtor’s profitability; days after the date of the order for relief— filed in accordance with section 1121(e) not ‘‘(2) reasonable approximations of the debt- ‘‘(A) its most recent balance sheet, state- later than 45 days after the plan is filed un- or’s projected cash receipts and cash dis- ment of operations, cash-flow statement, and less the time for confirmation is extended in bursements over a reasonable period; Federal income tax return; or accordance with section 1121(e)(3).’’. ‘‘(3) comparisons of actual cash receipts ‘‘(B) a statement made under penalty of SEC. 439. DUTIES OF THE UNITED STATES TRUST- and disbursements with projections in prior perjury that no balance sheet, statement of EE. reports; operations, or cash-flow statement has been Section 586(a) of title 28, United States ‘‘(4)(A) whether the debtor is— prepared and no Federal tax return has been Code, is amended— ‘‘(i) in compliance in all material respects filed; (1) in paragraph (3)— with postpetition requirements imposed by ‘‘(2) attend, through its senior manage- (A) in subparagraph (G), by striking ‘‘and’’ this title and the Federal Rules of Bank- ment personnel and counsel, meetings sched- at the end; ruptcy Procedure; and uled by the court or the United States trust- (B) by redesignating subparagraph (H) as ‘‘(ii) timely filing tax returns and other re- ee, including initial debtor interviews, subparagraph (I); and quired government filings and paying taxes scheduling conferences, and meetings of (C) by inserting after subparagraph (G) the and other administrative expenses when due; creditors convened under section 341 unless following:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00113 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S794 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(H) in small business cases (as defined in ‘‘(2) Paragraph (1) does not apply— the United States trustee (or the bankruptcy section 101 of title 11), performing the addi- ‘‘(A) to an involuntary case involving no administrator, if any); tional duties specified in title 11 pertaining collusion by the debtor with creditors; or ‘‘(I) failure timely to pay taxes owed after to such cases; and’’; ‘‘(B) to the filing of a petition if— the date of the order for relief or to file tax (2) in paragraph (5), by striking ‘‘and’’ at ‘‘(i) the debtor proves by a preponderance returns due after the date of the order for re- the end; of the evidence that the filing of the petition lief; (3) in paragraph (6), by striking the period resulted from circumstances beyond the con- ‘‘(J) failure to file a disclosure statement, at the end and inserting a semicolon; and trol of the debtor not foreseeable at the time or to file or confirm a plan, within the time (4) by adding at the end the following: the case then pending was filed; and fixed by this title or by order of the court; ‘‘(7) in each of such small business cases— ‘‘(ii) it is more likely than not that the ‘‘(K) failure to pay any fees or charges re- ‘‘(A) conduct an initial debtor interview as court will confirm a feasible plan, but not a quired under chapter 123 of title 28; soon as practicable after the date of the liquidating plan, within a reasonable period ‘‘(L) revocation of an order of confirmation order for relief but before the first meeting of time.’’. under section 1144; scheduled under section 341(a) of title 11, at SEC. 442. EXPANDED GROUNDS FOR DISMISSAL ‘‘(M) inability to effectuate substantial which time the United States trustee shall— OR CONVERSION AND APPOINT- consummation of a confirmed plan; ‘‘(i) begin to investigate the debtor’s via- MENT OF TRUSTEE. ‘‘(N) material default by the debtor with bility; (a) EXPANDED GROUNDS FOR DISMISSAL OR respect to a confirmed plan; ‘‘(ii) inquire about the debtor’s business CONVERSION.—Section 1112 of title 11, United ‘‘(O) termination of a confirmed plan by plan; States Code, is amended by striking sub- reason of the occurrence of a condition speci- ‘‘(iii) explain the debtor’s obligations to section (b) and inserting the following: fied in the plan; and file monthly operating reports and other re- ‘‘(b)(1) Except as provided in paragraph (2) ‘‘(P) failure of the debtor to pay any do- quired reports; of this subsection, subsection (c) of this sec- mestic support obligation that first becomes ‘‘(iv) attempt to develop an agreed sched- tion, and section 1104(a)(3), on request of a payable after the date of the filing of the pe- uling order; and party in interest, and after notice and a tition.’’. ‘‘(v) inform the debtor of other obligations; hearing, absent unusual circumstances spe- (b) ADDITIONAL GROUNDS FOR APPOINTMENT ‘‘(B) if determined to be appropriate and cifically identified by the court that estab- OF TRUSTEE.—Section 1104(a) of title 11, advisable, visit the appropriate business lish that the requested conversion or dis- United States Code, is amended— premises of the debtor, ascertain the state of missal is not in the best interests of credi- (1) in paragraph (1), by striking ‘‘or’’ at the the debtor’s books and records, and verify tors and the estate, the court shall convert a end; that the debtor has filed its tax returns; and case under this chapter to a case under chap- (2) in paragraph (2), by striking the period ‘‘(C) review and monitor diligently the ter 7 or dismiss a case under this chapter, at the end and inserting ‘‘; or’’; and debtor’s activities, to identify as promptly whichever is in the best interests of creditors (3) by adding at the end the following: as possible whether the debtor will be unable and the estate, if the movant establishes ‘‘(3) if grounds exist to convert or dismiss to confirm a plan; and cause. the case under section 1112, but the court de- ‘‘(8) in any case in which the United States ‘‘(2) The relief provided in paragraph (1) termines that the appointment of a trustee trustee finds material grounds for any relief shall not be granted absent unusual cir- or an examiner is in the best interests of under section 1112 of title 11, the United cumstances specifically identified by the creditors and the estate.’’. States trustee shall apply promptly after court that establish that such relief is not in SEC. 443. STUDY OF OPERATION OF TITLE 11, making that finding to the court for relief.’’. the best interests of creditors and the estate, UNITED STATES CODE, WITH RE- SEC. 440. SCHEDULING CONFERENCES. if the debtor or another party in interest ob- SPECT TO SMALL BUSINESSES. Section 105(d) of title 11, United States jects and establishes that— Not later than 2 years after the date of en- Code, is amended— ‘‘(A) there is a reasonable likelihood that a actment of this Act, the Administrator of (1) in the matter preceding paragraph (1), plan will be confirmed within the time- the Small Business Administration, in con- by striking ‘‘, may’’; and frames established in sections 1121(e) and sultation with the Attorney General, the Di- (2) by striking paragraph (1) and inserting 1129(e) of this title, or if such sections do not rector of the Executive Office for United the following: apply, within a reasonable period of time; States Trustees, and the Director of the Ad- ‘‘(1) shall hold such status conferences as and ministrative Office of the United States are necessary to further the expeditious and ‘‘(B) the grounds for granting such relief Courts, shall— economical resolution of the case; and’’. include an act or omission of the debtor (1) conduct a study to determine— (A) the internal and external factors that SEC. 441. SERIAL FILER PROVISIONS. other than under paragraph (4)(A)— cause small businesses, especially sole pro- Section 362 of title 11, United States Code, ‘‘(i) for which there exists a reasonable jus- as amended by sections 106, 305, and 311, is tification for the act or omission; and prietorships, to become debtors in cases amended— ‘‘(ii) that will be cured within a reasonable under title 11, United States Code, and that (1) in subsection (k), as so redesignated by period of time fixed by the court. cause certain small businesses to success- section 305— ‘‘(3) The court shall commence the hearing fully complete cases under chapter 11 of such (A) by striking ‘‘An’’ and inserting ‘‘(1) Ex- on a motion under this subsection not later title; and cept as provided in paragraph (2), an’’; and than 30 days after filing of the motion, and (B) how Federal laws relating to bank- (B) by adding at the end the following: shall decide the motion not later than 15 ruptcy may be made more effective and effi- ‘‘(2) If such violation is based on an action days after commencement of such hearing, cient in assisting small businesses to remain taken by an entity in the good faith belief unless the movant expressly consents to a viable; and that subsection (h) applies to the debtor, the continuance for a specific period of time or (2) submit to the President pro tempore of recovery under paragraph (1) of this sub- compelling circumstances prevent the court the Senate and the Speaker of the House of section against such entity shall be limited from meeting the time limits established by Representatives a report summarizing that to actual damages.’’; and this paragraph. study. (2) by adding at the end the following: ‘‘(4) For purposes of this subsection, the SEC. 444. PAYMENT OF INTEREST. ‘‘(n)(1) Except as provided in paragraph (2), term ‘cause’ includes— Section 362(d)(3) of title 11, United States subsection (a) does not apply in a case in ‘‘(A) substantial or continuing loss to or Code, is amended— which the debtor— diminution of the estate and the absence of (1) by inserting ‘‘or 30 days after the court ‘‘(A) is a debtor in a small business case a reasonable likelihood of rehabilitation; determines that the debtor is subject to this pending at the time the petition is filed; ‘‘(B) gross mismanagement of the estate; paragraph, whichever is later’’ after ‘‘90-day ‘‘(B) was a debtor in a small business case ‘‘(C) failure to maintain appropriate insur- period)’’; and that was dismissed for any reason by an ance that poses a risk to the estate or to the (2) by striking subparagraph (B) and insert- order that became final in the 2-year period public; ing the following: ending on the date of the order for relief en- ‘‘(D) unauthorized use of cash collateral ‘‘(B) the debtor has commenced monthly tered with respect to the petition; substantially harmful to 1 or more creditors; payments that— ‘‘(C) was a debtor in a small business case ‘‘(E) failure to comply with an order of the ‘‘(i) may, in the debtor’s sole discretion, in which a plan was confirmed in the 2-year court; notwithstanding section 363(c)(2), be made period ending on the date of the order for re- ‘‘(F) unexcused failure to satisfy timely from rents or other income generated before, lief entered with respect to the petition; or any filing or reporting requirement estab- on, or after the date of the commencement of ‘‘(D) is an entity that has acquired sub- lished by this title or by any rule applicable the case by or from the property to each stantially all of the assets or business of a to a case under this chapter; creditor whose claim is secured by such real small business debtor described in subpara- ‘‘(G) failure to attend the meeting of credi- estate (other than a claim secured by a judg- graph (A), (B), or (C), unless such entity es- tors convened under section 341(a) or an ex- ment lien or by an unmatured statutory tablishes by a preponderance of the evidence amination ordered under rule 2004 of the Fed- lien); and that such entity acquired substantially all of eral Rules of Bankruptcy Procedure without ‘‘(ii) are in an amount equal to interest at the assets or business of such small business good cause shown by the debtor; the then applicable nondefault contract rate debtor in good faith and not for the purpose ‘‘(H) failure timely to provide information of interest on the value of the creditor’s in- of evading this paragraph. or attend meetings reasonably requested by terest in the real estate; or’’.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00114 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S795 SEC. 445. PRIORITY FOR ADMINISTRATIVE EX- ‘‘(b) The commencement of a voluntary ‘‘(II) the number of final orders entered de- PENSES. case under a chapter of this title constitutes termining the value of property securing a Section 503(b) of title 11, United States an order for relief under such chapter.’’. claim; Code, is amended— SEC. 502. APPLICABILITY OF OTHER SECTIONS ‘‘(ii) the number of cases dismissed, the (1) in paragraph (5), by striking ‘‘and’’ at TO CHAPTER 9. number of cases dismissed for failure to the end; Section 901(a) of title 11, United States make payments under the plan, the number (2) in paragraph (6), by striking the period Code, is amended— of cases refiled after dismissal, and the num- at the end and inserting a semicolon; and (1) by inserting ‘‘555, 556,’’ after ‘‘553,’’; and ber of cases in which the plan was completed, (3) by adding at the end the following: (2) by inserting ‘‘559, 560, 561, 562,’’ after separately itemized with respect to the num- ‘‘(7) with respect to a nonresidential real ‘‘557,’’. ber of modifications made before completion property lease previously assumed under sec- TITLE VI—BANKRUPTCY DATA of the plan, if any; and tion 365, and subsequently rejected, a sum ‘‘(iii) the number of cases in which the equal to all monetary obligations due, ex- SEC. 601. IMPROVED BANKRUPTCY STATISTICS. debtor filed another case during the 6-year cluding those arising from or relating to a (a) IN GENERAL.—Chapter 6 of title 28, period preceding the filing; failure to operate or a penalty provision, for United States Code, is amended by adding at ‘‘(G) the number of cases in which credi- the period of 2 years following the later of the end the following: tors were fined for misconduct and any the rejection date or the date of actual turn- ‘‘§ 159. Bankruptcy statistics amount of punitive damages awarded by the over of the premises, without reduction or ‘‘(a) The clerk of the district court, or the court for creditor misconduct; and setoff for any reason whatsoever except for clerk of the bankruptcy court if one is cer- ‘‘(H) the number of cases in which sanc- sums actually received or to be received tified pursuant to section 156(b) of this title, tions under rule 9011 of the Federal Rules of from an entity other than the debtor, and shall collect statistics regarding debtors who Bankruptcy Procedure were imposed against the claim for remaining sums due for the are individuals with primarily consumer debtor’s attorney or damages awarded under balance of the term of the lease shall be a debts seeking relief under chapters 7, 11, and such Rule.’’. claim under section 502(b)(6);’’. 13 of title 11. Those statistics shall be in a (b) CLERICAL AMENDMENT.—The table of SEC. 446. DUTIES WITH RESPECT TO A DEBTOR standardized format prescribed by the Direc- sections for chapter 6 of title 28, United WHO IS A PLAN ADMINISTRATOR OF tor of the Administrative Office of the States Code, is amended by adding at the end AN EMPLOYEE BENEFIT PLAN. the following: (a) IN GENERAL.—Section 521(a) of title 11, United States Courts (referred to in this sec- United States Code, as amended by sections tion as the ‘Director’). ‘‘159. Bankruptcy statistics.’’. (c) EFFECTIVE DATE.—The amendments 106 and 304, is amended— ‘‘(b) The Director shall— made by this section shall take effect 18 (1) in paragraph (5), by striking ‘‘and’’ at ‘‘(1) compile the statistics referred to in months after the date of enactment of this the end; subsection (a); Act. (2) in paragraph (6), by striking the period ‘‘(2) make the statistics available to the at the end and inserting ‘‘; and’’; and public; and SEC. 602. UNIFORM RULES FOR THE COLLECTION OF BANKRUPTCY DATA. (3) by adding after paragraph (6) the fol- ‘‘(3) not later than July 1, 2008, and annu- (a) AMENDMENT.—Chapter 39 of title 28, lowing: ally thereafter, prepare, and submit to Con- United States Code, is amended by adding at ‘‘(7) unless a trustee is serving in the case, gress a report concerning the information the end the following: continue to perform the obligations required collected under subsection (a) that contains of the administrator (as defined in section 3 an analysis of the information. ‘‘§ 589b. Bankruptcy data of the Employee Retirement Income Secu- ‘‘(c) The compilation required under sub- ‘‘(a) RULES.—The Attorney General shall, rity Act of 1974) of an employee benefit plan section (b) shall— within a reasonable time after the effective if at the time of the commencement of the ‘‘(1) be itemized, by chapter, with respect date of this section, issue rules requiring case the debtor (or any entity designated by to title 11; uniform forms for (and from time to time the debtor) served as such administrator.’’. ‘‘(2) be presented in the aggregate and for thereafter to appropriately modify and ap- (b) DUTIES OF TRUSTEES.—Section 704(a) of each district; and prove)— title 11, United States Code, as amended by ‘‘(3) include information concerning— ‘‘(1) final reports by trustees in cases under sections 102 and 219, is amended— ‘‘(A) the total assets and total liabilities of chapters 7, 12, and 13 of title 11; and (1) in paragraph (10), by striking ‘‘and’’ at the debtors described in subsection (a), and ‘‘(2) periodic reports by debtors in posses- the end; and in each category of assets and liabilities, as sion or trustees in cases under chapter 11 of (2) by adding at the end the following: reported in the schedules prescribed pursu- title 11. ‘‘(11) if, at the time of the commencement ant to section 2075 of this title and filed by ‘‘(b) REPORTS.—Each report referred to in of the case, the debtor (or any entity des- debtors; subsection (a) shall be designed (and the re- ignated by the debtor) served as the adminis- ‘‘(B) the current monthly income, average quirements as to place and manner of filing trator (as defined in section 3 of the Em- income, and average expenses of debtors as shall be established) so as to facilitate com- ployee Retirement Income Security Act of reported on the schedules and statements pilation of data and maximum possible ac- 1974) of an employee benefit plan, continue that each such debtor files under sections 521 cess of the public, both by physical inspec- to perform the obligations required of the and 1322 of title 11; tion at one or more central filing locations, administrator; and’’. ‘‘(C) the aggregate amount of debt dis- and by electronic access through the Inter- (c) CONFORMING AMENDMENT.—Section charged in cases filed during the reporting net or other appropriate media. 1106(a)(1) of title 11, United States Code, is period, determined as the difference between ‘‘(c) REQUIRED INFORMATION.—The informa- amended to read as follows: the total amount of debt and obligations of tion required to be filed in the reports re- ‘‘(1) perform the duties of the trustee, as a debtor reported on the schedules and the ferred to in subsection (b) shall be that specified in paragraphs (2), (5), (7), (8), (9), amount of such debt reported in categories which is in the best interests of debtors and (10), and (11) of section 704;’’. which are predominantly nondischargeable; creditors, and in the public interest in rea- SEC. 447. APPOINTMENT OF COMMITTEE OF RE- ‘‘(D) the average period of time between sonable and adequate information to evalu- TIRED EMPLOYEES. the date of the filing of the petition and the ate the efficiency and practicality of the Section 1114(d) of title 11, United States closing of the case for cases closed during Federal bankruptcy system. In issuing rules Code, is amended— the reporting period; proposing the forms referred to in subsection (1) by striking ‘‘appoint’’ and inserting ‘‘(E) for cases closed during the reporting (a), the Attorney General shall strike the ‘‘order the appointment of’’, and period— best achievable practical balance between— (2) by adding at the end the following: ‘‘(i) the number of cases in which a reaffir- ‘‘(1) the reasonable needs of the public for ‘‘The United States trustee shall appoint any mation agreement was filed; and information about the operational results of such committee.’’. ‘‘(ii)(I) the total number of reaffirmation the Federal bankruptcy system; TITLE V—MUNICIPAL BANKRUPTCY agreements filed; ‘‘(2) economy, simplicity, and lack of PROVISIONS ‘‘(II) of those cases in which a reaffirma- undue burden on persons with a duty to file SEC. 501. PETITION AND PROCEEDINGS RELATED tion agreement was filed, the number of reports; and TO PETITION. cases in which the debtor was not rep- ‘‘(3) appropriate privacy concerns and safe- (a) TECHNICAL AMENDMENT RELATING TO resented by an attorney; and guards. MUNICIPALITIES.—Section 921(d) of title 11, ‘‘(III) of those cases in which a reaffirma- ‘‘(d) FINAL REPORTS.—The uniform forms United States Code, is amended by inserting tion agreement was filed, the number of for final reports required under subsection ‘‘notwithstanding section 301(b)’’ before the cases in which the reaffirmation agreement (a) for use by trustees under chapters 7, 12, period at the end. was approved by the court; and 13 of title 11 shall, in addition to such (b) CONFORMING AMENDMENT.—Section 301 ‘‘(F) with respect to cases filed under chap- other matters as are required by law or as of title 11, United States Code, is amended— ter 13 of title 11, for the reporting period— the Attorney General in the discretion of the (1) by inserting ‘‘(a)’’ before ‘‘A vol- ‘‘(i)(I) the number of cases in which a final Attorney General shall propose, include with untary’’; and order was entered determining the value of respect to a case under such title— (2) by striking the last sentence and insert- property securing a claim in an amount less ‘‘(1) information about the length of time ing the following: than the amount of the claim; and the case was pending;

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‘‘(2) assets abandoned; (A) establish a method of selecting appro- (e) EFFECTIVE DATE.—The amendments ‘‘(3) assets exempted; priate qualified persons to contract to per- made by this section shall take effect 18 ‘‘(4) receipts and disbursements of the es- form those audits; months after the date of enactment of this tate; (B) establish a method of randomly select- Act. ‘‘(5) expenses of administration, including ing cases to be audited, except that not less SEC. 604. SENSE OF CONGRESS REGARDING for use under section 707(b), actual costs of than 1 out of every 250 cases in each Federal AVAILABILITY OF BANKRUPTCY administering cases under chapter 13 of title judicial district shall be selected for audit; DATA. 11; (C) require audits of schedules of income It is the sense of Congress that— ‘‘(6) claims asserted; and expenses that reflect greater than aver- (1) the national policy of the United States ‘‘(7) claims allowed; and age variances from the statistical norm of should be that all data held by bankruptcy ‘‘(8) distributions to claimants and claims the district in which the schedules were filed clerks in electronic form, to the extent such discharged without payment, if those variances occur by reason of higher data reflects only public records (as defined in each case by appropriate category and, in income or higher expenses than the statis- in section 107 of title 11, United States Code), cases under chapters 12 and 13 of title 11, tical norm of the district in which the sched- should be released in a usable electronic date of confirmation of the plan, each modi- ules were filed; and form in bulk to the public, subject to such fication thereto, and defaults by the debtor (D) establish procedures for providing, not appropriate privacy concerns and safeguards in performance under the plan. less frequently than annually, public infor- as Congress and the Judicial Conference of ‘‘(e) PERIODIC REPORTS.—The uniform mation concerning the aggregate results of the United States may determine; and forms for periodic reports required under such audits including the percentage of (2) there should be established a bank- subsection (a) for use by trustees or debtors cases, by district, in which a material ruptcy data system in which— in possession under chapter 11 of title 11 misstatement of income or expenditures is (A) a single set of data definitions and shall, in addition to such other matters as reported. forms are used to collect data nationwide; are required by law or as the Attorney Gen- (b) AMENDMENTS.—Section 586 of title 28, and eral in the discretion of the Attorney Gen- United States Code, is amended— (B) data for any particular bankruptcy eral shall propose, include— (1) in subsection (a), by striking paragraph case are aggregated in the same electronic ‘‘(1) information about the industry classi- (6) and inserting the following: record. fication, published by the Department of ‘‘(6) make such reports as the Attorney TITLE VII—BANKRUPTCY TAX Commerce, for the businesses conducted by General directs, including the results of au- PROVISIONS the debtor; dits performed under section 603(a) of the SEC. 701. TREATMENT OF CERTAIN LIENS. ‘‘(2) length of time the case has been pend- Bankruptcy Abuse Prevention and Consumer (a) TREATMENT OF CERTAIN LIENS.—Section ing; Protection Act of 2005;’’; and 724 of title 11, United States Code, is amend- ‘‘(3) number of full-time employees as of (2) by adding at the end the following: ed— the date of the order for relief and at the end ‘‘(f)(1) The United States trustee for each (1) in subsection (b), in the matter pre- of each reporting period since the case was district is authorized to contract with audi- ceding paragraph (1), by inserting ‘‘(other filed; tors to perform audits in cases designated by than to the extent that there is a properly ‘‘(4) cash receipts, cash disbursements and the United States trustee, in accordance perfected unavoidable tax lien arising in con- profitability of the debtor for the most re- with the procedures established under sec- nection with an ad valorem tax on real or cent period and cumulatively since the date tion 603(a) of the Bankruptcy Abuse Preven- personal property of the estate)’’ after of the order for relief; tion and Consumer Protection Act of 2005. ‘‘under this title’’; ‘‘(5) compliance with title 11, whether or ‘‘(2)(A) The report of each audit referred to (2) in subsection (b)(2), by inserting ‘‘(ex- not tax returns and tax payments since the in paragraph (1) shall be filed with the court cept that such expenses, other than claims date of the order for relief have been timely and transmitted to the United States trust- for wages, salaries, or commissions that filed and made; ee. Each report shall clearly and conspicu- arise after the date of the filing of the peti- ‘‘(6) all professional fees approved by the ously specify any material misstatement of tion, shall be limited to expenses incurred court in the case for the most recent period income or expenditures or of assets identi- under chapter 7 of this title and shall not in- and cumulatively since the date of the order fied by the person performing the audit. In clude expenses incurred under chapter 11 of for relief (separately reported, for the profes- any case in which a material misstatement this title)’’ after ‘‘507(a)(1)’’; and sional fees incurred by or on behalf of the of income or expenditures or of assets has (3) by adding at the end the following: debtor, between those that would have been been reported, the clerk of the district court (or the clerk of the bankruptcy court if one ‘‘(e) Before subordinating a tax lien on real incurred absent a bankruptcy case and those or personal property of the estate, the trust- not); and is certified under section 156(b) of this title) shall give notice of the misstatement to the ee shall— ‘‘(7) plans of reorganization filed and con- ‘‘(1) exhaust the unencumbered assets of firmed and, with respect thereto, by class, creditors in the case. ‘‘(B) If a material misstatement of income the estate; and the recoveries of the holders, expressed in or expenditures or of assets is reported, the ‘‘(2) in a manner consistent with section aggregate dollar values and, in the case of United States trustee shall— 506(c), recover from property securing an al- claims, as a percentage of total claims of the ‘‘(i) report the material misstatement, if lowed secured claim the reasonable, nec- class allowed.’’. appropriate, to the United States Attorney essary costs and expenses of preserving or (b) CLERICAL AMENDMENT.—The table of pursuant to section 3057 of title 18; and disposing of such property. sections for chapter 39 of title 28, United ‘‘(ii) if advisable, take appropriate action, ‘‘(f) Notwithstanding the exclusion of ad States Code, is amended by adding at the end valorem tax liens under this section and sub- the following: including but not limited to commencing an adversary proceeding to revoke the debtor’s ject to the requirements of subsection (e), ‘‘589b. Bankruptcy data.’’. discharge pursuant to section 727(d) of title the following may be paid from property of SEC. 603. AUDIT PROCEDURES. 11.’’. the estate which secures a tax lien, or the (a) IN GENERAL.— (c) AMENDMENTS TO SECTION 521 OF TITLE proceeds of such property: (1) ESTABLISHMENT OF PROCEDURES.—The 11, U.S.C.—Section 521(a) of title 11, United ‘‘(1) Claims for wages, salaries, and com- Attorney General (in judicial districts served States Code, as so designated by section 106, missions that are entitled to priority under by United States trustees) and the Judicial is amended in each of paragraphs (3) and (4) section 507(a)(4). Conference of the United States (in judicial by inserting ‘‘or an auditor serving under ‘‘(2) Claims for contributions to an em- districts served by bankruptcy administra- section 586(f) of title 28’’ after ‘‘serving in ployee benefit plan entitled to priority under tors) shall establish procedures to determine the case’’. section 507(a)(5).’’. the accuracy, veracity, and completeness of (d) AMENDMENTS TO SECTION 727 OF TITLE (b) DETERMINATION OF TAX LIABILITY.—Sec- petitions, schedules, and other information 11, U.S.C.—Section 727(d) of title 11, United tion 505(a)(2) of title 11, United States Code, that the debtor is required to provide under States Code, is amended— is amended— sections 521 and 1322 of title 11, United States (1) in paragraph (2), by striking ‘‘or’’ at the (1) in subparagraph (A), by striking ‘‘or’’ at Code, and, if applicable, section 111 of such end; the end; title, in cases filed under chapter 7 or 13 of (2) in paragraph (3), by striking the period (2) in subparagraph (B), by striking the pe- such title in which the debtor is an indi- at the end and inserting ‘‘; or’’; and riod at the end and inserting ‘‘; or’’; and vidual. Such audits shall be in accordance (3) by adding at the end the following: (3) by adding at the end the following: with generally accepted auditing standards ‘‘(4) the debtor has failed to explain satis- ‘‘(C) the amount or legality of any amount and performed by independent certified pub- factorily— arising in connection with an ad valorem tax lic accountants or independent licensed pub- ‘‘(A) a material misstatement in an audit on real or personal property of the estate, if lic accountants, provided that the Attorney referred to in section 586(f) of title 28; or the applicable period for contesting or rede- General and the Judicial Conference, as ap- ‘‘(B) a failure to make available for inspec- termining that amount under any law (other propriate, may develop alternative auditing tion all necessary accounts, papers, docu- than a bankruptcy law) has expired.’’. standards not later than 2 years after the ments, financial records, files, and all other SEC. 702. TREATMENT OF FUEL TAX CLAIMS. date of enactment of this Act. papers, things, or property belonging to the Section 501 of title 11, United States Code, (2) PROCEDURES.—Those procedures re- debtor that are requested for an audit re- is amended by adding at the end the fol- quired by paragraph (1) shall— ferred to in section 586(f) of title 28.’’. lowing:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00116 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S797 ‘‘(e) A claim arising from the liability of a ‘‘(I) any time during which an offer in com- unsecured claim of a governmental unit debtor for fuel use tax assessed consistent promise with respect to that tax was pending under section 507(a)(8), but for the secured with the requirements of section 31705 of or in effect during that 240-day period, plus status of that claim, the holder of that claim title 49 may be filed by the base jurisdiction 30 days; and will receive on account of that claim, cash designated pursuant to the International ‘‘(II) any time during which a stay of pro- payments, in the same manner and over the Fuel Tax Agreement (as defined in section ceedings against collections was in effect in same period, as prescribed in subparagraph 31701 of title 49) and, if so filed, shall be al- a prior case under this title during that 240- (C).’’. lowed as a single claim.’’. day period, plus 90 days.’’; and SEC. 711. AVOIDANCE OF STATUTORY TAX LIENS SEC. 703. NOTICE OF REQUEST FOR A DETER- (2) by adding at the end the following: PROHIBITED. MINATION OF TAXES. ‘‘An otherwise applicable time period speci- Section 545(2) of title 11, United States Section 505(b) of title 11, United States fied in this paragraph shall be suspended for Code, is amended by inserting before the Code, is amended— any period during which a governmental unit semicolon at the end the following: ‘‘, except (1) in the first sentence, by inserting ‘‘at is prohibited under applicable nonbank- in any case in which a purchaser is a pur- the address and in the manner designated in ruptcy law from collecting a tax as a result chaser described in section 6323 of the Inter- paragraph (1)’’ after ‘‘determination of such of a request by the debtor for a hearing and nal Revenue Code of 1986, or in any other tax’’; an appeal of any collection action taken or similar provision of State or local law’’. (2) by striking ‘‘(1) upon payment’’ and in- proposed against the debtor, plus 90 days; SEC. 712. PAYMENT OF TAXES IN THE CONDUCT serting ‘‘(A) upon payment’’; plus any time during which the stay of pro- OF BUSINESS. (3) by striking ‘‘(A) such governmental ceedings was in effect in a prior case under (a) PAYMENT OF TAXES REQUIRED.—Section unit’’ and inserting ‘‘(i) such governmental this title or during which collection was pre- 960 of title 28, United States Code, is amend- unit’’; cluded by the existence of 1 or more con- ed— (4) by striking ‘‘(B) such governmental firmed plans under this title, plus 90 days.’’. (1) by inserting ‘‘(a)’’ before ‘‘Any’’; and unit’’ and inserting ‘‘(ii) such governmental SEC. 706. PRIORITY PROPERTY TAXES INCURRED. (2) by adding at the end the following: unit’’; Section 507(a)(8)(B) of title 11, United ‘‘(b) A tax under subsection (a) shall be (5) by striking ‘‘(2) upon payment’’ and in- States Code, is amended by striking ‘‘as- paid on or before the due date of the tax serting ‘‘(B) upon payment’’; sessed’’ and inserting ‘‘incurred’’. under applicable nonbankruptcy law, un- (6) by striking ‘‘(3) upon payment’’ and in- SEC. 707. NO DISCHARGE OF FRAUDULENT TAXES less— serting ‘‘(C) upon payment’’; IN CHAPTER 13. ‘‘(1) the tax is a property tax secured by a (7) by striking ‘‘(b)’’ and inserting ‘‘(2)’’; Section 1328(a)(2) of title 11, United States lien against property that is abandoned and Code, as amended by section 314, is amended under section 554 of title 11, within a reason- (8) by inserting before paragraph (2), as so by striking ‘‘paragraph’’ and inserting ‘‘sec- able period of time after the lien attaches, designated, the following: tion 507(a)(8)(C) or in paragraph (1)(B), by the trustee in a case under title 11; or ‘‘(b)(1)(A) The clerk shall maintain a list (1)(C),’’. ‘‘(2) payment of the tax is excused under a under which a Federal, State, or local gov- SEC. 708. NO DISCHARGE OF FRAUDULENT TAXES specific provision of title 11. ernmental unit responsible for the collection IN CHAPTER 11. ‘‘(c) In a case pending under chapter 7 of of taxes within the district may— Section 1141(d) of title 11, United States title 11, payment of a tax may be deferred ‘‘(i) designate an address for service of re- Code, as amended by sections 321 and 330, is until final distribution is made under section quests under this subsection; and amended by adding at the end the following: 726 of title 11, if— ‘‘(6) Notwithstanding paragraph (1), the ‘‘(ii) describe where further information ‘‘(1) the tax was not incurred by a trustee confirmation of a plan does not discharge a concerning additional requirements for filing duly appointed or elected under chapter 7 of debtor that is a corporation from any debt— such requests may be found. title 11; or ‘‘(A) of a kind specified in paragraph (2)(A) ‘‘(B) If such governmental unit does not ‘‘(2) before the due date of the tax, an order or (2)(B) of section 523(a) that is owed to a designate an address and provide such ad- of the court makes a finding of probable in- domestic governmental unit, or owed to a dress to the clerk under subparagraph (A), sufficiency of funds of the estate to pay in person as the result of an action filed under any request made under this subsection may full the administrative expenses allowed subchapter III of chapter 37 of title 31 or any be served at the address for the filing of a under section 503(b) of title 11 that have the similar State statute; or tax return or protest with the appropriate same priority in distribution under section ‘‘(B) for a tax or customs duty with respect taxing authority of such governmental 726(b) of title 11 as the priority of that tax.’’. to which the debtor— unit.’’. (b) PAYMENT OF AD VALOREM TAXES RE- ‘‘(i) made a fraudulent return; or SEC. 704. RATE OF INTEREST ON TAX CLAIMS. QUIRED.—Section 503(b)(1)(B)(i) of title 11, ‘‘(ii) willfully attempted in any manner to (a) IN GENERAL.—Subchapter I of chapter 5 United States Code, is amended by inserting evade or to defeat such tax or such customs of title 11, United States Code, is amended by ‘‘whether secured or unsecured, including duty.’’. adding at the end the following: property taxes for which liability is in rem, SEC. 709. STAY OF TAX PROCEEDINGS LIMITED in personam, or both,’’ before ‘‘except’’. ‘‘§ 511. Rate of interest on tax claims TO PREPETITION TAXES. (c) REQUEST FOR PAYMENT OF ADMINISTRA- ‘‘(a) If any provision of this title requires Section 362(a)(8) of title 11, United States TIVE EXPENSE TAXES ELIMINATED.—Section the payment of interest on a tax claim or on Code, is amended by striking ‘‘the debtor’’ an administrative expense tax, or the pay- and inserting ‘‘a corporate debtor’s tax li- 503(b)(1) of title 11, United States Code, is ment of interest to enable a creditor to re- ability for a taxable period the bankruptcy amended— ceive the present value of the allowed court may determine or concerning the tax (1) in subparagraph (B), by striking ‘‘and’’ amount of a tax claim, the rate of interest liability of a debtor who is an individual for at the end; shall be the rate determined under applica- a taxable period ending before the date of the (2) in subparagraph (C), by adding ‘‘and’’ at ble nonbankruptcy law. order for relief under this title’’. the end; and ‘‘(b) In the case of taxes paid under a con- SEC. 710. PERIODIC PAYMENT OF TAXES IN CHAP- (3) by adding at the end the following: firmed plan under this title, the rate of in- TER 11 CASES. ‘‘(D) notwithstanding the requirements of terest shall be determined as of the calendar Section 1129(a)(9) of title 11, United States subsection (a), a governmental unit shall not month in which the plan is confirmed.’’. Code, is amended— be required to file a request for the payment (b) CLERICAL AMENDMENT.—The table of (1) in subparagraph (B), by striking ‘‘and’’ of an expense described in subparagraph (B) sections for subchapter I of chapter 5 of title at the end; or (C), as a condition of its being an allowed 11, United States Code, is amended by adding (2) in subparagraph (C), by striking ‘‘de- administrative expense;’’. at the end the following: ferred cash payments,’’ and all that follows (d) PAYMENT OF TAXES AND FEES AS SE- ‘‘511. Rate of interest on tax claims.’’. through the end of the subparagraph, and in- CURED CLAIMS.—Section 506 of title 11, SEC. 705. PRIORITY OF TAX CLAIMS. serting ‘‘regular installment payments in United States Code, is amended— Section 507(a)(8) of title 11, United States cash— (1) in subsection (b), by inserting ‘‘or State Code, is amended— ‘‘(i) of a total value, as of the effective date statute’’ after ‘‘agreement’’; and (1) in subparagraph (A)— of the plan, equal to the allowed amount of (2) in subsection (c), by inserting ‘‘, includ- (A) in the matter preceding clause (i), by such claim; ing the payment of all ad valorem property inserting ‘‘for a taxable year ending on or be- ‘‘(ii) over a period ending not later than 5 taxes with respect to the property’’ before fore the date of the filing of the petition’’ years after the date of the order for relief the period at the end. after ‘‘gross receipts’’; under section 301, 302, or 303; and SEC. 713. TARDILY FILED PRIORITY TAX CLAIMS. (B) in clause (i), by striking ‘‘for a taxable ‘‘(iii) in a manner not less favorable than Section 726(a)(1) of title 11, United States year ending on or before the date of the fil- the most favored nonpriority unsecured Code, is amended by striking ‘‘before the ing of the petition’’; and claim provided for by the plan (other than date on which the trustee commences dis- (C) by striking clause (ii) and inserting the cash payments made to a class of creditors tribution under this section;’’ and inserting following: under section 1122(b)); and’’; and the following: ‘‘on or before the earlier of— ‘‘(ii) assessed within 240 days before the (3) by adding at the end the following: ‘‘(A) the date that is 10 days after the mail- date of the filing of the petition, exclusive ‘‘(D) with respect to a secured claim which ing to creditors of the summary of the trust- of— would otherwise meet the description of an ee’s final report; or

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00117 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S798 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(B) the date on which the trustee com- entitled, and for which request is timely vestor typical of the holders of claims or in- mences final distribution under this sec- made, in accordance with applicable non- terests in the case,’’ after ‘‘records,’’; and tion;’’. bankruptcy law. (2) by striking ‘‘a hypothetical reasonable SEC. 714. INCOME TAX RETURNS PREPARED BY ‘‘(2) After notice and a hearing, and order investor typical of holders of claims or inter- TAX AUTHORITIES. entered before the tolling of any applicable ests’’ and inserting ‘‘such a hypothetical in- Section 523(a) of title 11, United States filing period determined under this sub- vestor’’. Code, as amended by sections 215 and 224, is section, if the debtor demonstrates by a pre- SEC. 718. SETOFF OF TAX REFUNDS. amended— ponderance of the evidence that the failure Section 362(b) of title 11, United States (1) in paragraph (1)(B)— to file a return as required under this sub- Code, as amended by sections 224, 303, 311, (A) in the matter preceding clause (i), by section is attributable to circumstances be- and 401, is amended by inserting after para- inserting ‘‘or equivalent report or notice,’’ yond the control of the debtor, the court graph (25) the following: after ‘‘a return,’’; may extend the filing period established by ‘‘(26) under subsection (a), of the setoff (B) in clause (i), by inserting ‘‘or given’’ the trustee under this subsection for— under applicable nonbankruptcy law of an after ‘‘filed’’; and ‘‘(A) a period of not more than 30 days for income tax refund, by a governmental unit, (C) in clause (ii)— returns described in paragraph (1); and with respect to a taxable period that ended (i) by inserting ‘‘or given’’ after ‘‘filed’’; ‘‘(B) a period not to extend after the appli- before the date of the order for relief against and cable extended due date for a return de- an income tax liability for a taxable period (ii) by inserting ‘‘, report, or notice’’ after scribed in paragraph (2). that also ended before the date of the order ‘‘return’’; and ‘‘(c) For purposes of this section, the term for relief, except that in any case in which (2) by adding at the end the following: ‘return’ includes a return prepared pursuant the setoff of an income tax refund is not per- ‘‘For purposes of this subsection, the term to subsection (a) or (b) of section 6020 of the mitted under applicable nonbankruptcy law ‘return’ means a return that satisfies the re- Internal Revenue Code of 1986, or a similar because of a pending action to determine the quirements of applicable nonbankruptcy law State or local law, or a written stipulation amount or legality of a tax liability, the gov- (including applicable filing requirements). to a judgment or a final order entered by a ernmental unit may hold the refund pending Such term includes a return prepared pursu- nonbankruptcy tribunal.’’. the resolution of the action, unless the ant to section 6020(a) of the Internal Revenue (2) CONFORMING AMENDMENT.—The table of court, on the motion of the trustee and after Code of 1986, or similar State or local law, or sections for subchapter I of chapter 13 of notice and a hearing, grants the taxing au- a written stipulation to a judgment or a title 11, United States Code, is amended by thority adequate protection (within the final order entered by a nonbankruptcy tri- adding at the end the following: meaning of section 361) for the secured claim bunal, but does not include a return made ‘‘1308. Filing of prepetition tax returns.’’. of such authority in the setoff under section pursuant to section 6020(b) of the Internal (c) DISMISSAL OR CONVERSION ON FAILURE 506(a);’’. Revenue Code of 1986, or a similar State or TO COMPLY.—Section 1307 of title 11, United SEC. 719. SPECIAL PROVISIONS RELATED TO THE local law.’’. States Code, is amended— TREATMENT OF STATE AND LOCAL TAXES. SEC. 715. DISCHARGE OF THE ESTATE’S LIABIL- (1) by redesignating subsections (e) and (f) ITY FOR UNPAID TAXES. as subsections (f) and (g), respectively; and (a) IN GENERAL.— Section 505(b)(2) of title 11, United States (2) by inserting after subsection (d) the fol- (1) SPECIAL PROVISIONS.—Section 346 of Code, as amended by section 703, is amended lowing: title 11, United States Code, is amended to by inserting ‘‘the estate,’’ after ‘‘misrepre- ‘‘(e) Upon the failure of the debtor to file a read as follows: sentation,’’. tax return under section 1308, on request of a ‘‘§ 346. Special provisions related to the treat- SEC. 716. REQUIREMENT TO FILE TAX RETURNS party in interest or the United States trust- ment of State and local taxes TO CONFIRM CHAPTER 13 PLANS. ee and after notice and a hearing, the court ‘‘(a) Whenever the Internal Revenue Code (a) FILING OF PREPETITION TAX RETURNS shall dismiss a case or convert a case under of 1986 provides that a separate taxable es- REQUIRED FOR PLAN CONFIRMATION.—Section this chapter to a case under chapter 7 of this tate or entity is created in a case concerning 1325(a) of title 11, United States Code, as title, whichever is in the best interest of the a debtor under this title, and the income, amended by sections 102, 213, and 306, is creditors and the estate.’’. gain, loss, deductions, and credits of such es- amended by inserting after paragraph (8) the (d) TIMELY FILED CLAIMS.—Section 502(b)(9) tate shall be taxed to or claimed by the es- following: of title 11, United States Code, is amended by tate, a separate taxable estate is also created ‘‘(9) the debtor has filed all applicable Fed- inserting before the period at the end the fol- for purposes of any State and local law im- eral, State, and local tax returns as required lowing: ‘‘, and except that in a case under posing a tax on or measured by income and by section 1308.’’. chapter 13, a claim of a governmental unit such income, gain, loss, deductions, and (b) ADDITIONAL TIME PERMITTED FOR FILING for a tax with respect to a return filed under credits shall be taxed to or claimed by the TAX RETURNS.— section 1308 shall be timely if the claim is estate and may not be taxed to or claimed by (1) IN GENERAL.—Subchapter I of chapter 13 filed on or before the date that is 60 days the debtor. The preceding sentence shall not of title 11, United States Code, is amended by after the date on which such return was filed apply if the case is dismissed. The trustee adding at the end the following: as required’’. shall make tax returns of income required ‘‘§ 1308. Filing of prepetition tax returns (e) RULES FOR OBJECTIONS TO CLAIMS AND under any such State or local law. ‘‘(b) Whenever the Internal Revenue Code ‘‘(a) Not later than the day before the date TO CONFIRMATION.—It is the sense of Con- gress that the Judicial Conference of the of 1986 provides that no separate taxable es- on which the meeting of the creditors is first tate shall be created in a case concerning a scheduled to be held under section 341(a), if United States should, as soon as practicable after the date of enactment of this Act, pro- debtor under this title, and the income, gain, the debtor was required to file a tax return loss, deductions, and credits of an estate under applicable nonbankruptcy law, the pose amended Federal Rules of Bankruptcy Procedure that provide— shall be taxed to or claimed by the debtor, debtor shall file with appropriate tax au- such income, gain, loss, deductions, and thorities all tax returns for all taxable peri- (1) notwithstanding the provisions of Rule 3015(f), in cases under chapter 13 of title 11, credits shall be taxed to or claimed by the ods ending during the 4-year period ending debtor under a State or local law imposing a on the date of the filing of the petition. United States Code, that an objection to the confirmation of a plan filed by a govern- tax on or measured by income and may not ‘‘(b)(1) Subject to paragraph (2), if the tax be taxed to or claimed by the estate. The mental unit on or before the date that is 60 returns required by subsection (a) have not trustee shall make such tax returns of in- days after the date on which the debtor files been filed by the date on which the meeting come of corporations and of partnerships as all tax returns required under sections 1308 of creditors is first scheduled to be held are required under any State or local law, and 1325(a)(7) of title 11, United States Code, under section 341(a), the trustee may hold but with respect to partnerships, shall make shall be treated for all purposes as if such ob- open that meeting for a reasonable period of such returns only to the extent such returns jection had been timely filed before such time to allow the debtor an additional period are also required to be made under such confirmation; and of time to file any unfiled returns, but such Code. The estate shall be liable for any tax (2) in addition to the provisions of Rule additional period of time shall not extend be- imposed on such corporation or partnership, 3007, in a case under chapter 13 of title 11, yond— but not for any tax imposed on partners or ‘‘(A) for any return that is past due as of United States Code, that no objection to a members. the date of the filing of the petition, the date claim for a tax with respect to which a re- ‘‘(c) With respect to a partnership or any that is 120 days after the date of that meet- turn is required to be filed under section 1308 entity treated as a partnership under a State ing; or of title 11, United States Code, shall be filed or local law imposing a tax on or measured ‘‘(B) for any return that is not past due as until such return has been filed as required. by income that is a debtor in a case under of the date of the filing of the petition, the SEC. 717. STANDARDS FOR TAX DISCLOSURE. this title, any gain or loss resulting from a later of— Section 1125(a)(1) of title 11, United States distribution of property from such partner- ‘‘(i) the date that is 120 days after the date Code, is amended— ship, or any distributive share of any in- of that meeting; or (1) by inserting ‘‘including a discussion of come, gain, loss, deduction, or credit of a ‘‘(ii) the date on which the return is due the potential material Federal tax con- partner or member that is distributed, or under the last automatic extension of time sequences of the plan to the debtor, any suc- considered distributed, from such partner- for filing that return to which the debtor is cessor to the debtor, and a hypothetical in- ship, after the commencement of the case, is

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00118 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S799 gain, loss, income, deduction, or credit, as amount of income from the discharge of in- ‘‘1514. Notification to foreign creditors con- the case may be, of the partner or member, debtedness has not been applied. cerning a case under this title. and if such partner or member is a debtor in ‘‘(k)(1) Except as provided in this section ‘‘SUBCHAPTER III—RECOGNITION OF A a case under this title, shall be subject to tax and section 505, the time and manner of fil- FOREIGN PROCEEDING AND RELIEF in accordance with subsection (a) or (b). ing tax returns and the items of income, ‘‘1515. Application for recognition. ‘‘(d) For purposes of any State or local law gain, loss, deduction, and credit of any tax- ‘‘1516. Presumptions concerning recognition. imposing a tax on or measured by income, payer shall be determined under applicable ‘‘1517. Order granting recognition. the taxable period of a debtor in a case under nonbankruptcy law. ‘‘1518. Subsequent information. this title shall terminate only if and to the ‘‘(2) For Federal tax purposes, the provi- ‘‘1519. Relief that may be granted upon filing extent that the taxable period of such debtor sions of this section are subject to the Inter- petition for recognition. terminates under the Internal Revenue Code nal Revenue Code of 1986 and other applica- ‘‘1520. Effects of recognition of a foreign of 1986. ble Federal nonbankruptcy law.’’. main proceeding. ‘‘(e) The estate in any case described in (2) CLERICAL AMENDMENT.—The table of ‘‘1521. Relief that may be granted upon rec- subsection (a) shall use the same accounting sections for chapter 3 of title 11, United ognition. method as the debtor used immediately be- States Code, is amended by striking the item ‘‘1522. Protection of creditors and other in- fore the commencement of the case, if such relating to section 346 and inserting the fol- terested persons. method of accounting complies with applica- lowing: ‘‘1523. Actions to avoid acts detrimental to ble nonbankruptcy tax law. ‘‘346. Special provisions related to the treat- creditors. ‘‘(f) For purposes of any State or local law ment of State and local taxes.’’. ‘‘1524. Intervention by a foreign representa- imposing a tax on or measured by income, a (b) CONFORMING AMENDMENTS.—Title 11 of tive. transfer of property from the debtor to the the United States Code is amended— ‘‘SUBCHAPTER IV—COOPERATION WITH estate or from the estate to the debtor shall (1) by striking section 728; FOREIGN COURTS AND FOREIGN REP- not be treated as a disposition for purposes (2) in the table of sections for chapter 7 by RESENTATIVES of any provision assigning tax consequences striking the item relating to section 728; ‘‘1525. Cooperation and direct communica- to a disposition, except to the extent that (3) in section 1146— such transfer is treated as a disposition tion between the court and for- (A) by striking subsections (a) and (b); and eign courts or foreign rep- under the Internal Revenue Code of 1986. (B) by redesignating subsections (c) and (d) ‘‘(g) Whenever a tax is imposed pursuant to resentatives. as subsections (a) and (b), respectively; and a State or local law imposing a tax on or ‘‘1526. Cooperation and direct communica- (4) in section 1231— measured by income pursuant to subsection tion between the trustee and (A) by striking subsections (a) and (b); and (a) or (b), such tax shall be imposed at rates foreign courts or foreign rep- (B) by redesignating subsections (c) and (d) generally applicable to the same types of en- resentatives. as subsections (a) and (b), respectively. tities under such State or local law. ‘‘1527. Forms of cooperation. ‘‘(h) The trustee shall withhold from any SEC. 720. DISMISSAL FOR FAILURE TO TIMELY ‘‘SUBCHAPTER V—CONCURRENT payment of claims for wages, salaries, com- FILE TAX RETURNS. PROCEEDINGS Section 521 of title 11, United States Code, missions, dividends, interest, or other pay- ‘‘1528. Commencement of a case under this ments, or collect, any amount required to be as amended by sections 106, 225, 305, 315, and 316, is amended by adding at the end the fol- title after recognition of a for- withheld or collected under applicable State eign main proceeding. or local tax law, and shall pay such withheld lowing: ‘‘(j)(1) Notwithstanding any other provi- ‘‘1529. Coordination of a case under this title or collected amount to the appropriate gov- and a foreign proceeding. ernmental unit at the time and in the man- sion of this title, if the debtor fails to file a tax return that becomes due after the com- ‘‘1530. Coordination of more than 1 foreign ner required by such tax law, and with the proceeding. same priority as the claim from which such mencement of the case or to properly obtain an extension of the due date for filing such ‘‘1531. Presumption of insolvency based on amount was withheld or collected was paid. recognition of a foreign main ‘‘(i)(1) To the extent that any State or return, the taxing authority may request that the court enter an order converting or proceeding. local law imposing a tax on or measured by ‘‘1532. Rule of payment in concurrent pro- dismissing the case. income provides for the carryover of any tax ceedings. attribute from one taxable period to a subse- ‘‘(2) If the debtor does not file the required ‘‘§ 1501. Purpose and scope of application quent taxable period, the estate shall suc- return or obtain the extension referred to in ceed to such tax attribute in any case in paragraph (1) within 90 days after a request ‘‘(a) The purpose of this chapter is to in- which such estate is subject to tax under is filed by the taxing authority under that corporate the Model Law on Cross-Border In- subsection (a). paragraph, the court shall convert or dismiss solvency so as to provide effective mecha- ‘‘(2) After such a case is closed or dis- the case, whichever is in the best interests of nisms for dealing with cases of cross-border missed, the debtor shall succeed to any tax creditors and the estate.’’. insolvency with the objectives of— attribute to which the estate succeeded TITLE VIII—ANCILLARY AND OTHER ‘‘(1) cooperation between— under paragraph (1) to the extent consistent CROSS-BORDER CASES ‘‘(A) courts of the United States, United States trustees, trustees, examiners, debtors, with the Internal Revenue Code of 1986. SEC. 801. AMENDMENT TO ADD CHAPTER 15 TO ‘‘(3) The estate may carry back any loss or TITLE 11, UNITED STATES CODE. and debtors in possession; and ‘‘(B) the courts and other competent au- tax attribute to a taxable period of the debt- (a) IN GENERAL.—Title 11, United States thorities of foreign countries involved in or that ended before the date of the order for Code, is amended by inserting after chapter cross-border insolvency cases; relief under this title to the extent that— 13 the following: ‘‘(A) applicable State or local tax law pro- ‘‘(2) greater legal certainty for trade and vides for a carryback in the case of the debt- ‘‘CHAPTER 15—ANCILLARY AND OTHER investment; or; and CROSS-BORDER CASES ‘‘(3) fair and efficient administration of ‘‘(B) the same or a similar tax attribute ‘‘Sec. cross-border insolvencies that protects the may be carried back by the estate to such a ‘‘1501. Purpose and scope of application. interests of all creditors, and other inter- taxable period of the debtor under the Inter- ‘‘SUBCHAPTER I—GENERAL PROVISIONS ested entities, including the debtor; ‘‘(4) protection and maximization of the nal Revenue Code of 1986. ‘‘1502. Definitions. value of the debtor’s assets; and ‘‘(j)(1) For purposes of any State or local ‘‘1503. International obligations of the ‘‘(5) facilitation of the rescue of financially law imposing a tax on or measured by in- United States. troubled businesses, thereby protecting in- come, income is not realized by the estate, ‘‘1504. Commencement of ancillary case. vestment and preserving employment. the debtor, or a successor to the debtor by ‘‘1505. Authorization to act in a foreign ‘‘(b) This chapter applies where— reason of discharge of indebtedness in a case country. ‘‘(1) assistance is sought in the United under this title, except to the extent, if any, ‘‘1506. Public policy exception. States by a foreign court or a foreign rep- that such income is subject to tax under the ‘‘1507. Additional assistance. resentative in connection with a foreign pro- Internal Revenue Code of 1986. ‘‘1508. Interpretation. ‘‘(2) Whenever the Internal Revenue Code ceeding; of 1986 provides that the amount excluded ‘‘SUBCHAPTER II—ACCESS OF FOREIGN ‘‘(2) assistance is sought in a foreign coun- from gross income in respect of the discharge REPRESENTATIVES AND CREDITORS try in connection with a case under this of indebtedness in a case under this title TO THE COURT title; shall be applied to reduce the tax attributes ‘‘1509. Right of direct access. ‘‘(3) a foreign proceeding and a case under of the debtor or the estate, a similar reduc- ‘‘1510. Limited jurisdiction. this title with respect to the same debtor are tion shall be made under any State or local ‘‘1511. Commencement of case under section pending concurrently; or law imposing a tax on or measured by in- 301 or 303. ‘‘(4) creditors or other interested persons come to the extent such State or local law ‘‘1512. Participation of a foreign representa- in a foreign country have an interest in re- recognizes such attributes. Such State or tive in a case under this title. questing the commencement of, or partici- local law may also provide for the reduction ‘‘1513. Access of foreign creditors to a case pating in, a case or proceeding under this of other attributes to the extent that the full under this title. title.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00119 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S800 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(c) This chapter does not apply to— erned by this chapter if the action would be not subject the foreign representative to the ‘‘(1) a proceeding concerning an entity, manifestly contrary to the public policy of jurisdiction of any court in the United other than a foreign insurance company, the United States. States for any other purpose. identified by exclusion in section 109(b); ‘‘§ 1507. Additional assistance ‘‘§ 1511. Commencement of case under section ‘‘(2) an individual, or to an individual and ‘‘(a) Subject to the specific limitations 301 or 303 such individual’s spouse, who have debts stated elsewhere in this chapter the court, if ‘‘(a) Upon recognition, a foreign represent- within the limits specified in section 109(e) recognition is granted, may provide addi- ative may commence— and who are citizens of the United States or tional assistance to a foreign representative ‘‘(1) an involuntary case under section 303; aliens lawfully admitted for permanent resi- under this title or under other laws of the or dence in the United States; or United States. ‘‘(2) a voluntary case under section 301 or ‘‘(3) an entity subject to a proceeding ‘‘(b) In determining whether to provide ad- 302, if the foreign proceeding is a foreign under the Securities Investor Protection Act ditional assistance under this title or under main proceeding. of 1970, a stockbroker subject to subchapter other laws of the United States, the court ‘‘(b) The petition commencing a case under III of chapter 7 of this title, or a commodity shall consider whether such additional as- subsection (a) must be accompanied by a cer- broker subject to subchapter IV of chapter 7 sistance, consistent with the principles of tified copy of an order granting recognition. of this title. comity, will reasonably assure— The court where the petition for recognition ‘‘(d) The court may not grant relief under ‘‘(1) just treatment of all holders of claims has been filed must be advised of the foreign this chapter with respect to any deposit, es- against or interests in the debtor’s property; representative’s intent to commence a case crow, trust fund, or other security required ‘‘(2) protection of claim holders in the under subsection (a) prior to such com- or permitted under any applicable State in- United States against prejudice and incon- mencement. surance law or regulation for the benefit of venience in the processing of claims in such ‘‘§ 1512. Participation of a foreign representa- claim holders in the United States. foreign proceeding; tive in a case under this title ‘‘SUBCHAPTER I—GENERAL PROVISIONS ‘‘(3) prevention of preferential or fraudu- ‘‘Upon recognition of a foreign proceeding, ‘‘§ 1502. Definitions lent dispositions of property of the debtor; the foreign representative in the recognized ‘‘For the purposes of this chapter, the ‘‘(4) distribution of proceeds of the debtor’s proceeding is entitled to participate as a term— property substantially in accordance with party in interest in a case regarding the ‘‘(1) ‘debtor’ means an entity that is the the order prescribed by this title; and debtor under this title. subject of a foreign proceeding; ‘‘(5) if appropriate, the provision of an op- ‘‘§ 1513. Access of foreign creditors to a case ‘‘(2) ‘establishment’ means any place of op- portunity for a fresh start for the individual under this title erations where the debtor carries out a non- that such foreign proceeding concerns. ‘‘(a) Foreign creditors have the same rights transitory economic activity; ‘‘§ 1508. Interpretation regarding the commencement of, and partici- ‘‘(3) ‘foreign court’ means a judicial or ‘‘In interpreting this chapter, the court pation in, a case under this title as domestic other authority competent to control or su- shall consider its international origin, and creditors. pervise a foreign proceeding; ‘‘(b)(1) Subsection (a) does not change or the need to promote an application of this ‘‘(4) ‘foreign main proceeding’ means a for- codify present law as to the priority of chapter that is consistent with the applica- eign proceeding pending in the country claims under section 507 or 726, except that tion of similar statutes adopted by foreign where the debtor has the center of its main the claim of a foreign creditor under those jurisdictions. interests; sections shall not be given a lower priority ‘‘(5) ‘foreign nonmain proceeding’ means a ‘‘SUBCHAPTER II—ACCESS OF FOREIGN than that of general unsecured claims with- foreign proceeding, other than a foreign REPRESENTATIVES AND CREDITORS out priority solely because the holder of such main proceeding, pending in a country where TO THE COURT claim is a foreign creditor. the debtor has an establishment; ‘‘§ 1509. Right of direct access ‘‘(2)(A) Subsection (a) and paragraph (1) do ‘‘(6) ‘trustee’ includes a trustee, a debtor in ‘‘(a) A foreign representative may com- not change or codify present law as to the al- possession in a case under any chapter of mence a case under section 1504 by filing di- lowability of foreign revenue claims or other this title, or a debtor under chapter 9 of this rectly with the court a petition for recogni- foreign public law claims in a proceeding title; tion of a foreign proceeding under section under this title. ‘‘(B) Allowance and priority as to a foreign ‘‘(7) ‘recognition’ means the entry of an 1515. tax claim or other foreign public law claim order granting recognition of a foreign main ‘‘(b) If the court grants recognition under shall be governed by any applicable tax trea- proceeding or foreign nonmain proceeding section 1517, and subject to any limitations ty of the United States, under the conditions under this chapter; and that the court may impose consistent with and circumstances specified therein. ‘‘(8) ‘within the territorial jurisdiction of the policy of this chapter— the United States’, when used with reference ‘‘(1) the foreign representative has the ca- ‘‘§ 1514. Notification to foreign creditors con- to property of a debtor, refers to tangible pacity to sue and be sued in a court in the cerning a case under this title property located within the territory of the United States; ‘‘(a) Whenever in a case under this title no- United States and intangible property ‘‘(2) the foreign representative may apply tice is to be given to creditors generally or deemed under applicable nonbankruptcy law directly to a court in the United States for to any class or category of creditors, such to be located within that territory, including appropriate relief in that court; and notice shall also be given to the known any property subject to attachment or gar- ‘‘(3) a court in the United States shall creditors generally, or to creditors in the no- nishment that may properly be seized or gar- grant comity or cooperation to the foreign tified class or category, that do not have ad- nished by an action in a Federal or State representative. dresses in the United States. The court may court in the United States. ‘‘(c) A request for comity or cooperation by order that appropriate steps be taken with a ‘‘§ 1503. International obligations of the a foreign representative in a court in the view to notifying any creditor whose address United States United States other than the court which is not yet known. ‘‘(b) Such notification to creditors with ‘‘To the extent that this chapter conflicts granted recognition shall be accompanied by foreign addresses described in subsection (a) with an obligation of the United States aris- a certified copy of an order granting recogni- shall be given individually, unless the court ing out of any treaty or other form of agree- tion under section 1517. considers that, under the circumstances, ment to which it is a party with one or more ‘‘(d) If the court denies recognition under some other form of notification would be other countries, the requirements of the this chapter, the court may issue any appro- more appropriate. No letter or other for- treaty or agreement prevail. priate order necessary to prevent the foreign representative from obtaining comity or co- mality is required. ‘‘§ 1504. Commencement of ancillary case operation from courts in the United States. ‘‘(c) When a notification of commencement ‘‘A case under this chapter is commenced ‘‘(e) Whether or not the court grants rec- of a case is to be given to foreign creditors, by the filing of a petition for recognition of ognition, and subject to sections 306 and 1510, such notification shall— a foreign proceeding under section 1515. a foreign representative is subject to appli- ‘‘(1) indicate the time period for filing ‘‘§ 1505. Authorization to act in a foreign cable nonbankruptcy law. proofs of claim and specify the place for fil- country ‘‘(f) Notwithstanding any other provision ing such proofs of claim; ‘‘(2) indicate whether secured creditors ‘‘A trustee or another entity (including an of this section, the failure of a foreign rep- need to file proofs of claim; and examiner) may be authorized by the court to resentative to commence a case or to obtain ‘‘(3) contain any other information re- act in a foreign country on behalf of an es- recognition under this chapter does not af- quired to be included in such notification to tate created under section 541. An entity au- fect any right the foreign representative creditors under this title and the orders of thorized to act under this section may act in may have to sue in a court in the United States to collect or recover a claim which is the court. any way permitted by the applicable foreign ‘‘(d) Any rule of procedure or order of the the property of the debtor. law. court as to notice or the filing of a proof of ‘‘§ 1506. Public policy exception ‘‘§ 1510. Limited jurisdiction claim shall provide such additional time to ‘‘Nothing in this chapter prevents the ‘‘The sole fact that a foreign representa- creditors with foreign addresses as is reason- court from refusing to take an action gov- tive files a petition under section 1515 does able under the circumstances.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00120 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S801 ‘‘SUBCHAPTER III—RECOGNITION OF A eign representative shall file with the court ‘‘§ 1521. Relief that may be granted upon rec- FOREIGN PROCEEDING AND RELIEF promptly a notice of change of status con- ognition ‘‘§ 1515. Application for recognition cerning— ‘‘(a) Upon recognition of a foreign pro- ‘‘(a) A foreign representative applies to the ‘‘(1) any substantial change in the status of ceeding, whether main or nonmain, where court for recognition of a foreign proceeding such foreign proceeding or the status of the necessary to effectuate the purpose of this in which the foreign representative has been foreign representative’s appointment; and chapter and to protect the assets of the debt- appointed by filing a petition for recogni- ‘‘(2) any other foreign proceeding regarding or or the interests of the creditors, the court tion. the debtor that becomes known to the for- may, at the request of the foreign represent- ‘‘(b) A petition for recognition shall be ac- eign representative. ative, grant any appropriate relief, includ- companied by— ‘‘§ 1519. Relief that may be granted upon fil- ing— ‘‘(1) a certified copy of the decision com- ing petition for recognition ‘‘(1) staying the commencement or con- mencing such foreign proceeding and ap- ‘‘(a) From the time of filing a petition for tinuation of an individual action or pro- pointing the foreign representative; recognition until the court rules on the peti- ceeding concerning the debtor’s assets, ‘‘(2) a certificate from the foreign court af- tion, the court may, at the request of the rights, obligations or liabilities to the extent firming the existence of such foreign pro- foreign representative, where relief is ur- they have not been stayed under section ceeding and of the appointment of the for- gently needed to protect the assets of the 1520(a); eign representative; or debtor or the interests of the creditors, grant ‘‘(2) staying execution against the debtor’s ‘‘(3) in the absence of evidence referred to relief of a provisional nature, including— assets to the extent it has not been stayed in paragraphs (1) and (2), any other evidence ‘‘(1) staying execution against the debtor’s under section 1520(a); acceptable to the court of the existence of assets; ‘‘(3) suspending the right to transfer, en- such foreign proceeding and of the appoint- ‘‘(2) entrusting the administration or real- cumber or otherwise dispose of any assets of ment of the foreign representative. ization of all or part of the debtor’s assets lo- the debtor to the extent this right has not ‘‘(c) A petition for recognition shall also be been suspended under section 1520(a); accompanied by a statement identifying all cated in the United States to the foreign rep- resentative or another person authorized by ‘‘(4) providing for the examination of wit- foreign proceedings with respect to the debt- nesses, the taking of evidence or the delivery or that are known to the foreign representa- the court, including an examiner, in order to protect and preserve the value of assets that, of information concerning the debtor’s as- tive. sets, affairs, rights, obligations or liabilities; ‘‘(d) The documents referred to in para- by their nature or because of other cir- ‘‘(5) entrusting the administration or real- graphs (1) and (2) of subsection (b) shall be cumstances, are perishable, susceptible to ization of all or part of the debtor’s assets translated into English. The court may re- devaluation or otherwise in jeopardy; and quire a translation into English of additional ‘‘(3) any relief referred to in paragraph (3), within the territorial jurisdiction of the documents. (4), or (7) of section 1521(a). United States to the foreign representative ‘‘(b) Unless extended under section or another person, including an examiner, ‘‘§ 1516. Presumptions concerning recognition authorized by the court; ‘‘(a) If the decision or certificate referred 1521(a)(6), the relief granted under this sec- tion terminates when the petition for rec- ‘‘(6) extending relief granted under section to in section 1515(b) indicates that the for- 1519(a); and eign proceeding is a foreign proceeding and ognition is granted. ‘‘(c) It is a ground for denial of relief under ‘‘(7) granting any additional relief that that the person or body is a foreign rep- may be available to a trustee, except for re- resentative, the court is entitled to so pre- this section that such relief would interfere with the administration of a foreign main lief available under sections 522, 544, 545, 547, sume. 548, 550, and 724(a). ‘‘(b) The court is entitled to presume that proceeding. ‘‘(b) Upon recognition of a foreign pro- documents submitted in support of the peti- ‘‘(d) The court may not enjoin a police or ceeding, whether main or nonmain, the court tion for recognition are authentic, whether regulatory act of a governmental unit, in- may, at the request of the foreign represent- or not they have been legalized. cluding a criminal action or proceeding, ative, entrust the distribution of all or part ‘‘(c) In the absence of evidence to the con- under this section. of the debtor’s assets located in the United trary, the debtor’s registered office, or habit- ‘‘(e) The standards, procedures, and limita- States to the foreign representative or an- ual residence in the case of an individual, is tions applicable to an injunction shall apply other person, including an examiner, author- presumed to be the center of the debtor’s to relief under this section. ized by the court, provided that the court is main interests. ‘‘(f) The exercise of rights not subject to satisfied that the interests of creditors in ‘‘§ 1517. Order granting recognition the stay arising under section 362(a) pursu- the United States are sufficiently protected. ‘‘(a) Subject to section 1506, after notice ant to paragraph (6), (7), (17), or (27) of sec- ‘‘(c) In granting relief under this section to and a hearing, an order recognizing a foreign tion 362(b) or pursuant to section 362(n) shall a representative of a foreign nonmain pro- proceeding shall be entered if— not be stayed by any order of a court or ad- ceeding, the court must be satisfied that the ‘‘(1) such foreign proceeding for which rec- ministrative agency in any proceeding under relief relates to assets that, under the law of ognition is sought is a foreign main pro- this chapter. the United States, should be administered in ceeding or foreign nonmain proceeding with- ‘‘§ 1520. Effects of recognition of a foreign the foreign nonmain proceeding or concerns in the meaning of section 1502; main proceeding information required in that proceeding. ‘‘(2) the foreign representative applying for ‘‘(a) Upon recognition of a foreign pro- ‘‘(d) The court may not enjoin a police or recognition is a person or body; and regulatory act of a governmental unit, in- ‘‘(3) the petition meets the requirements of ceeding that is a foreign main proceeding— ‘‘(1) sections 361 and 362 apply with respect cluding a criminal action or proceeding, section 1515. under this section. ‘‘(b) Such foreign proceeding shall be rec- to the debtor and the property of the debtor ‘‘(e) The standards, procedures, and limita- ognized— that is within the territorial jurisdiction of tions applicable to an injunction shall apply ‘‘(1) as a foreign main proceeding if it is the United States; to relief under paragraphs (1), (2), (3), and (6) pending in the country where the debtor has ‘‘(2) sections 363, 549, and 552 apply to a transfer of an interest of the debtor in prop- of subsection (a). the center of its main interests; or ‘‘(f) The exercise of rights not subject to ‘‘(2) as a foreign nonmain proceeding if the erty that is within the territorial jurisdic- tion of the United States to the same extent the stay arising under section 362(a) pursu- debtor has an establishment within the ant to paragraph (6), (7), (17), or (27) of sec- meaning of section 1502 in the foreign coun- that the sections would apply to property of an estate; tion 362(b) or pursuant to section 362(n) shall try where the proceeding is pending. not be stayed by any order of a court or ad- ‘‘(c) A petition for recognition of a foreign ‘‘(3) unless the court orders otherwise, the ministrative agency in any proceeding under proceeding shall be decided upon at the ear- foreign representative may operate the debt- liest possible time. Entry of an order recog- or’s business and may exercise the rights and this chapter. nizing a foreign proceeding constitutes rec- powers of a trustee under and to the extent ‘‘§ 1522. Protection of creditors and other in- ognition under this chapter. provided by sections 363 and 552; and terested persons ‘‘(d) The provisions of this subchapter do ‘‘(4) section 552 applies to property of the ‘‘(a) The court may grant relief under sec- not prevent modification or termination of debtor that is within the territorial jurisdic- tion 1519 or 1521, or may modify or terminate recognition if it is shown that the grounds tion of the United States. relief under subsection (c), only if the inter- for granting it were fully or partially lack- ‘‘(b) Subsection (a) does not affect the ests of the creditors and other interested en- ing or have ceased to exist, but in consid- right to commence an individual action or tities, including the debtor, are sufficiently ering such action the court shall give due proceeding in a foreign country to the extent protected. weight to possible prejudice to parties that necessary to preserve a claim against the ‘‘(b) The court may subject relief granted have relied upon the order granting recogni- debtor. under section 1519 or 1521, or the operation of tion. A case under this chapter may be ‘‘(c) Subsection (a) does not affect the the debtor’s business under section 1520(a)(3), closed in the manner prescribed under sec- right of a foreign representative or an entity to conditions it considers appropriate, in- tion 350. to file a petition commencing a case under cluding the giving of security or the filing of ‘‘§ 1518. Subsequent information this title or the right of any party to file a bond. ‘‘From the time of filing the petition for claims or take other proper actions in such ‘‘(c) The court may, at the request of the recognition of a foreign proceeding, the for- a case. foreign representative or an entity affected

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00121 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S802 CONGRESSIONAL RECORD — SENATE February 1, 2005 by relief granted under section 1519 or 1521, has assets in the United States. The effects ceeding is, for the purpose of commencing a or at its own motion, modify or terminate of such case shall be restricted to the assets proceeding under section 303, proof that the such relief. of the debtor that are within the territorial debtor is generally not paying its debts as ‘‘(d) Section 1104(d) shall apply to the ap- jurisdiction of the United States and, to the such debts become due. pointment of an examiner under this chap- extent necessary to implement cooperation ‘‘§ 1532. Rule of payment in concurrent pro- ter. Any examiner shall comply with the and coordination under sections 1525, 1526, ceedings qualification requirements imposed on a and 1527, to other assets of the debtor that ‘‘Without prejudice to secured claims or trustee by section 322. are within the jurisdiction of the court under sections 541(a) of this title, and 1334(e) of rights in rem, a creditor who has received ‘‘§ 1523. Actions to avoid acts detrimental to title 28, to the extent that such other assets payment with respect to its claim in a for- creditors are not subject to the jurisdiction and con- eign proceeding pursuant to a law relating to ‘‘(a) Upon recognition of a foreign pro- trol of a foreign proceeding that has been insolvency may not receive a payment for ceeding, the foreign representative has recognized under this chapter. the same claim in a case under any other standing in a case concerning the debtor ‘‘§ 1529. Coordination of a case under this chapter of this title regarding the debtor, so pending under another chapter of this title title and a foreign proceeding long as the payment to other creditors of the to initiate actions under sections 522, 544, same class is proportionately less than the ‘‘If a foreign proceeding and a case under 545, 547, 548, 550, 553, and 724(a). payment the creditor has already received.’’. another chapter of this title are pending con- ‘‘(b) When a foreign proceeding is a foreign (b) CLERICAL AMENDMENT.—The table of currently regarding the same debtor, the nonmain proceeding, the court must be satis- chapters for title 11, United States Code, is court shall seek cooperation and coordina- fied that an action under subsection (a) re- tion under sections 1525, 1526, and 1527, and amended by inserting after the item relating lates to assets that, under United States law, the following shall apply: to chapter 13 the following: should be administered in the foreign ‘‘(1) If the case in the United States pend- ‘‘15. Ancillary and Other Cross-Border nonmain proceeding. ing at the time the petition for recognition Cases ...... 1501’’. ‘‘§ 1524. Intervention by a foreign representa- of such foreign proceeding is filed— SEC. 802. OTHER AMENDMENTS TO TITLES 11 tive ‘‘(A) any relief granted under section 1519 AND 28, UNITED STATES CODE. ‘‘Upon recognition of a foreign proceeding, or 1521 must be consistent with the relief (a) APPLICABILITY OF CHAPTERS.—Section the foreign representative may intervene in granted in the case in the United States; and 103 of title 11, United States Code, is amend- any proceedings in a State or Federal court ‘‘(B) section 1520 does not apply even if ed— in the United States in which the debtor is a such foreign proceeding is recognized as a (1) in subsection (a), by inserting before party. foreign main proceeding. the period the following: ‘‘, and this chapter, ‘‘SUBCHAPTER IV—COOPERATION WITH ‘‘(2) If a case in the United States under sections 307, 362(n), 555 through 557, and 559 FOREIGN COURTS AND FOREIGN REP- this title commences after recognition, or through 562 apply in a case under chapter RESENTATIVES after the date of the filing of the petition for 15’’; and recognition, of such foreign proceeding— (2) by adding at the end the following: ‘‘§ 1525. Cooperation and direct communica- ‘‘(A) any relief in effect under section 1519 ‘‘(k) Chapter 15 applies only in a case under tion between the court and foreign courts or 1521 shall be reviewed by the court and such chapter, except that— or foreign representatives shall be modified or terminated if incon- ‘‘(1) sections 1505, 1513, and 1514 apply in all ‘‘(a) Consistent with section 1501, the court sistent with the case in the United States; cases under this title; and shall cooperate to the maximum extent pos- and ‘‘(2) section 1509 applies whether or not a sible with a foreign court or a foreign rep- ‘‘(B) if such foreign proceeding is a foreign case under this title is pending.’’. resentative, either directly or through the main proceeding, the stay and suspension re- (b) DEFINITIONS.—Section 101 of title 11, trustee. ferred to in section 1520(a) shall be modified United States Code, is amended by striking ‘‘(b) The court is entitled to communicate or terminated if inconsistent with the relief paragraphs (23) and (24) and inserting the fol- directly with, or to request information or granted in the case in the United States. lowing: assistance directly from, a foreign court or a ‘‘(3) In granting, extending, or modifying ‘‘(23) ‘foreign proceeding’ means a collec- foreign representative, subject to the rights relief granted to a representative of a foreign tive judicial or administrative proceeding in of a party in interest to notice and participa- nonmain proceeding, the court must be satis- a foreign country, including an interim pro- tion. fied that the relief relates to assets that, ceeding, under a law relating to insolvency ‘‘§ 1526. Cooperation and direct communica- under the laws of the United States, should or adjustment of debt in which proceeding tion between the trustee and foreign courts be administered in the foreign nonmain pro- the assets and affairs of the debtor are sub- or foreign representatives ceeding or concerns information required in ject to control or supervision by a foreign ‘‘(a) Consistent with section 1501, the trust- that proceeding. court, for the purpose of reorganization or ee or other person, including an examiner, ‘‘(4) In achieving cooperation and coordina- liquidation; authorized by the court, shall, subject to the tion under sections 1528 and 1529, the court ‘‘(24) ‘foreign representative’ means a per- supervision of the court, cooperate to the may grant any of the relief authorized under son or body, including a person or body ap- maximum extent possible with a foreign section 305. pointed on an interim basis, authorized in a court or a foreign representative. ‘‘§ 1530. Coordination of more than 1 foreign foreign proceeding to administer the reorga- ‘‘(b) The trustee or other person, including proceeding nization or the liquidation of the debtor’s as- an examiner, authorized by the court is enti- ‘‘In matters referred to in section 1501, sets or affairs or to act as a representative of tled, subject to the supervision of the court, with respect to more than 1 foreign pro- such foreign proceeding;’’. to communicate directly with a foreign ceeding regarding the debtor, the court shall (c) AMENDMENTS TO TITLE 28, UNITED court or a foreign representative. seek cooperation and coordination under sec- STATES CODE.— (1) PROCEDURES.—Section 157(b)(2) of title ‘‘§ 1527. Forms of cooperation tions 1525, 1526, and 1527, and the following shall apply: 28, United States Code, is amended— ‘‘Cooperation referred to in sections 1525 ‘‘(1) Any relief granted under section 1519 (A) in subparagraph (N), by striking ‘‘and’’ and 1526 may be implemented by any appro- or 1521 to a representative of a foreign at the end; priate means, including— nonmain proceeding after recognition of a (B) in subparagraph (O), by striking the pe- ‘‘(1) appointment of a person or body, in- foreign main proceeding must be consistent riod at the end and inserting ‘‘; and’’; and cluding an examiner, to act at the direction with the foreign main proceeding. (C) by adding at the end the following: of the court; ‘‘(2) If a foreign main proceeding is recog- ‘‘(P) recognition of foreign proceedings and ‘‘(2) communication of information by any nized after recognition, or after the filing of other matters under chapter 15 of title 11.’’. means considered appropriate by the court; a petition for recognition, of a foreign (2) BANKRUPTCY CASES AND PROCEEDINGS.— ‘‘(3) coordination of the administration and nonmain proceeding, any relief in effect Section 1334(c) of title 28, United States supervision of the debtor’s assets and affairs; under section 1519 or 1521 shall be reviewed Code, is amended by striking ‘‘Nothing in’’ ‘‘(4) approval or implementation of agree- by the court and shall be modified or termi- and inserting ‘‘Except with respect to a case ments concerning the coordination of pro- nated if inconsistent with the foreign main under chapter 15 of title 11, nothing in’’. ceedings; and proceeding. (3) DUTIES OF TRUSTEES.—Section 586(a)(3) ‘‘(5) coordination of concurrent pro- ‘‘(3) If, after recognition of a foreign of title 28, United States Code, is amended by ceedings regarding the same debtor. nonmain proceeding, another foreign striking ‘‘or 13’’ and inserting ‘‘13, or 15’’. ‘‘SUBCHAPTER V—CONCURRENT nonmain proceeding is recognized, the court (4) VENUE OF CASES ANCILLARY TO FOREIGN PROCEEDINGS shall grant, modify, or terminate relief for PROCEEDINGS.—Section 1410 of title 28, United ‘‘§ 1528. Commencement of a case under this the purpose of facilitating coordination of States Code, is amended to read as follows: title after recognition of a foreign main the proceedings. ‘‘§ 1410. Venue of cases ancillary to foreign proceeding ‘‘§ 1531. Presumption of insolvency based on proceedings ‘‘After recognition of a foreign main pro- recognition of a foreign main proceeding ‘‘A case under chapter 15 of title 11 may be ceeding, a case under another chapter of this ‘‘In the absence of evidence to the con- commenced in the district court of the title may be commenced only if the debtor trary, recognition of a foreign main pro- United States for the district—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00122 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S803 ‘‘(1) in which the debtor has its principal or any option on any of the foregoing, in- ‘‘(III) means any option entered into on a place of business or principal assets in the cluding any option to purchase or sell any national securities exchange relating to for- United States; such security, certificate of deposit, mort- eign currencies; ‘‘(2) if the debtor does not have a place of gage loan, interest, group or index, or op- ‘‘(IV) means the guarantee by or to any se- business or assets in the United States, in tion, and including any repurchase or reverse curities clearing agency of any settlement of which there is pending against the debtor an repurchase transaction on any such security, cash, securities, certificates of deposit, action or proceeding in a Federal or State certificate of deposit, mortgage loan, inter- mortgage loans or interests therein, group or court; or est, group or index, or option; index of securities, certificates of deposit, or ‘‘(3) in a case other than those specified in ‘‘(II) does not include any purchase, sale, mortgage loans or interests therein (includ- paragraph (1) or (2), in which venue will be or repurchase obligation under a participa- ing any interest therein or based on the consistent with the interests of justice and tion in a commercial mortgage loan unless value thereof) or option on any of the fore- the convenience of the parties, having regard the Corporation determines by regulation, going, including any option to purchase or to the relief sought by the foreign represent- resolution, or order to include any such sell any such security, certificate of deposit, ative.’’. agreement within the meaning of such term; mortgage loan, interest, group or index, or (d) OTHER SECTIONS OF TITLE 11.—Title 11 ‘‘(III) means any option entered into on a option; of the United States Code is amended— national securities exchange relating to for- ‘‘(V) means any margin loan; (1) in section 109(b), by striking paragraph eign currencies; ‘‘(VI) means any other agreement or trans- (3) and inserting the following: ‘‘(IV) means the guarantee by or to any se- action that is similar to any agreement or ‘‘(3)(A) a foreign insurance company, en- curities clearing agency of any settlement of transaction referred to in this clause; gaged in such business in the United States; cash, securities, certificates of deposit, ‘‘(VII) means any combination of the or mortgage loans or interests therein, group or agreements or transactions referred to in ‘‘(B) a foreign bank, savings bank, coopera- index of securities, certificates of deposit, or this clause; tive bank, savings and loan association, mortgage loans or interests therein (includ- ‘‘(VIII) means any option to enter into any building and loan association, or credit ing any interest therein or based on the agreement or transaction referred to in this union, that has a branch or agency (as de- value thereof) or option on any of the fore- clause; fined in section 1(b) of the International going, including any option to purchase or ‘‘(IX) means a master agreement that pro- Banking Act of 1978 in the United States.’’; sell any such security, certificate of deposit, vides for an agreement or transaction re- (2) in section 303, by striking subsection mortgage loan, interest, group or index, or ferred to in subclause (I), (III), (IV), (V), (VI), (k); option; (VII), or (VIII), together with all supple- (3) by striking section 304; ‘‘(V) means any margin loan; ments to any such master agreement, with- (4) in the table of sections for chapter 3 by ‘‘(VI) means any other agreement or trans- out regard to whether the master agreement striking the item relating to section 304; action that is similar to any agreement or provides for an agreement or transaction (5) in section 306 by striking ‘‘, 304,’’ each transaction referred to in this clause; that is not a securities contract under this place it appears; ‘‘(VII) means any combination of the clause, except that the master agreement (6) in section 305(a) by striking paragraph agreements or transactions referred to in shall be considered to be a securities con- (2) and inserting the following: this clause; tract under this clause only with respect to ‘‘(VIII) means any option to enter into any each agreement or transaction under the ‘‘(2)(A) a petition under section 1515 for agreement or transaction referred to in this master agreement that is referred to in sub- recognition of a foreign proceeding has been clause; clause (I), (III), (IV), (V), (VI), (VII), or granted; and ‘‘(IX) means a master agreement that pro- (VIII); and ‘‘(B) the purposes of chapter 15 of this title vides for an agreement or transaction re- ‘‘(X) means any security agreement or ar- would be best served by such dismissal or ferred to in subclause (I), (III), (IV), (V), (VI), rangement or other credit enhancement re- suspension.’’; and (VII), or (VIII), together with all supple- lated to any agreement or transaction re- (7) in section 508— ments to any such master agreement, with- ferred to in this clause, including any guar- (A) by striking subsection (a); and out regard to whether the master agreement antee or reimbursement obligation in con- (B) in subsection (b), by striking ‘‘(b)’’. provides for an agreement or transaction nection with any agreement or transaction TITLE IX—FINANCIAL CONTRACT that is not a securities contract under this referred to in this clause.’’. PROVISIONS clause, except that the master agreement (c) DEFINITION OF COMMODITY CONTRACT.— SEC. 901. TREATMENT OF CERTAIN AGREEMENTS shall be considered to be a securities con- (1) FDIC-INSURED DEPOSITORY INSTITU- BY CONSERVATORS OR RECEIVERS tract under this clause only with respect to TIONS.—Section 11(e)(8)(D)(iii) of the Federal OF INSURED DEPOSITORY INSTITU- each agreement or transaction under the Deposit Insurance Act (12 U.S.C. TIONS. master agreement that is referred to in sub- 1821(e)(8)(D)(iii)) is amended to read as fol- (a) DEFINITION OF QUALIFIED FINANCIAL clause (I), (III), (IV), (V), (VI), (VII), or lows: CONTRACT.— (VIII); and ‘‘(iii) COMMODITY CONTRACT.—The term (1) FDIC-INSURED DEPOSITORY INSTITU- ‘‘(X) means any security agreement or ar- ‘commodity contract’ means— TIONS.—Section 11(e)(8)(D) of the Federal De- rangement or other credit enhancement re- ‘‘(I) with respect to a futures commission posit Insurance Act (12 U.S.C. 1821(e)(8)(D)) is lated to any agreement or transaction re- merchant, a contract for the purchase or sale amended— ferred to in this clause, including any guar- of a commodity for future delivery on, or (A) by striking ‘‘subsection—’’ and insert- antee or reimbursement obligation in con- subject to the rules of, a contract market or ing ‘‘subsection, the following definitions nection with any agreement or transaction board of trade; shall apply:’’; and referred to in this clause.’’. ‘‘(II) with respect to a foreign futures com- (B) in clause (i), by inserting ‘‘, resolution, (2) INSURED CREDIT UNIONS.—Section mission merchant, a foreign future; or order’’ after ‘‘any similar agreement that 207(c)(8)(D)(ii) of the Federal Credit Union ‘‘(III) with respect to a leverage trans- the Corporation determines by regulation’’. Act (12 U.S.C. 1787(c)(8)(D)(ii)) is amended to action merchant, a leverage transaction; (2) INSURED CREDIT UNIONS.—Section read as follows: ‘‘(IV) with respect to a clearing organiza- 207(c)(8)(D) of the Federal Credit Union Act ‘‘(ii) SECURITIES CONTRACT.—The term ‘se- tion, a contract for the purchase or sale of a (12 U.S.C. 1787(c)(8)(D)) is amended— curities contract’— commodity for future delivery on, or subject (A) by striking ‘‘subsection—’’ and insert- ‘‘(I) means a contract for the purchase, to the rules of, a contract market or board of ing ‘‘subsection, the following definitions sale, or loan of a security, a certificate of de- trade that is cleared by such clearing organi- shall apply:’’; and posit, a mortgage loan, or any interest in a zation, or commodity option traded on, or (B) in clause (i), by inserting ‘‘, resolution, mortgage loan, a group or index of securi- subject to the rules of, a contract market or or order’’ after ‘‘any similar agreement that ties, certificates of deposit, or mortgage board of trade that is cleared by such clear- the Board determines by regulation’’. loans or interests therein (including any in- ing organization; (b) DEFINITION OF SECURITIES CONTRACT.— terest therein or based on the value thereof) ‘‘(V) with respect to a commodity options (1) FDIC-INSURED DEPOSITORY INSTITU- or any option on any of the foregoing, in- dealer, a commodity option; TIONS.—Section 11(e)(8)(D)(ii) of the Federal cluding any option to purchase or sell any ‘‘(VI) any other agreement or transaction Deposit Insurance Act (12 U.S.C. such security, certificate of deposit, mort- that is similar to any agreement or trans- 1821(e)(8)(D)(ii)) is amended to read as fol- gage loan, interest, group or index, or op- action referred to in this clause; lows: tion, and including any repurchase or reverse ‘‘(VII) any combination of the agreements ‘‘(ii) SECURITIES CONTRACT.—The term ‘se- repurchase transaction on any such security, or transactions referred to in this clause; curities contract’— certificate of deposit, mortgage loan, inter- ‘‘(VIII) any option to enter into any agree- ‘‘(I) means a contract for the purchase, est, group or index, or option; ment or transaction referred to in this sale, or loan of a security, a certificate of de- ‘‘(II) does not include any purchase, sale, clause; posit, a mortgage loan, or any interest in a or repurchase obligation under a participa- ‘‘(IX) a master agreement that provides for mortgage loan, a group or index of securi- tion in a commercial mortgage loan unless an agreement or transaction referred to in ties, certificates of deposit, or mortgage the Board determines by regulation, resolu- subclause (I), (II), (III), (IV), (V), (VI), (VII), loans or interests therein (including any in- tion, or order to include any such agreement or (VIII), together with all supplements to terest therein or based on the value thereof) within the meaning of such term; any such master agreement, without regard

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00123 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S804 CONGRESSIONAL RECORD — SENATE February 1, 2005 to whether the master agreement provides transaction, reverse repurchase transaction, ‘‘(I) means an agreement, including related for an agreement or transaction that is not consignment, lease, swap, hedge transaction, terms, which provides for the transfer of one a commodity contract under this clause, ex- deposit, loan, option, allocated transaction, or more certificates of deposit, mortgage-re- cept that the master agreement shall be con- unallocated transaction, or any other simi- lated securities (as such term is defined in sidered to be a commodity contract under lar agreement; the Securities Exchange Act of 1934), mort- this clause only with respect to each agree- ‘‘(II) any combination of agreements or gage loans, interests in mortgage-related se- ment or transaction under the master agree- transactions referred to in subclauses (I) and curities or mortgage loans, eligible bankers’ ment that is referred to in subclause (I), (II), (III); acceptances, qualified foreign government (III), (IV), (V), (VI), (VII), or (VIII); or ‘‘(III) any option to enter into any agree- securities or securities that are direct obli- ‘‘(X) any security agreement or arrange- ment or transaction referred to in subclause gations of, or that are fully guaranteed by, ment or other credit enhancement related to (I) or (II); the United States or any agency of the any agreement or transaction referred to in ‘‘(IV) a master agreement that provides for United States against the transfer of funds this clause, including any guarantee or reim- an agreement or transaction referred to in by the transferee of such certificates of de- bursement obligation in connection with any subclauses (I), (II), or (III), together with all posit, eligible bankers’ acceptances, securi- agreement or transaction referred to in this supplements to any such master agreement, ties, mortgage loans, or interests with a si- clause.’’. without regard to whether the master agree- multaneous agreement by such transferee to (2) INSURED CREDIT UNIONS.—Section ment provides for an agreement or trans- transfer to the transferor thereof certificates 207(c)(8)(D)(iii) of the Federal Credit Union action that is not a forward contract under of deposit, eligible bankers’ acceptances, se- Act (12 U.S.C. 1787(c)(8)(D)(iii)) is amended to this clause, except that the master agree- curities, mortgage loans, or interests as de- read as follows: ment shall be considered to be a forward con- scribed above, at a date certain not later ‘‘(iii) COMMODITY CONTRACT.—The term tract under this clause only with respect to than 1 year after such transfers or on de- ‘commodity contract’ means— each agreement or transaction under the mand, against the transfer of funds, or any ‘‘(I) with respect to a futures commission master agreement that is referred to in sub- other similar agreement; merchant, a contract for the purchase or sale clause (I), (II), or (III); or of a commodity for future delivery on, or ‘‘(V) any security agreement or arrange- ‘‘(II) does not include any repurchase obli- subject to the rules of, a contract market or ment or other credit enhancement related to gation under a participation in a commercial board of trade; any agreement or transaction referred to in mortgage loan unless the Corporation deter- ‘‘(II) with respect to a foreign futures com- subclause (I), (II), (III), or (IV), including any mines by regulation, resolution, or order to mission merchant, a foreign future; guarantee or reimbursement obligation in include any such participation within the ‘‘(III) with respect to a leverage trans- connection with any agreement or trans- meaning of such term; action merchant, a leverage transaction; action referred to in any such subclause.’’. ‘‘(III) means any combination of agree- ‘‘(IV) with respect to a clearing organiza- (2) INSURED CREDIT UNIONS.—Section ments or transactions referred to in sub- tion, a contract for the purchase or sale of a 207(c)(8)(D)(iv) of the Federal Credit Union clauses (I) and (IV); commodity for future delivery on, or subject Act (12 U.S.C. 1787(c)(8)(D)(iv)) is amended to ‘‘(IV) means any option to enter into any to the rules of, a contract market or board of read as follows: agreement or transaction referred to in sub- trade that is cleared by such clearing organi- ‘‘(iv) FORWARD CONTRACT.—The term ‘for- clause (I) or (III); zation, or commodity option traded on, or ward contract’ means— ‘‘(V) means a master agreement that pro- subject to the rules of, a contract market or ‘‘(I) a contract (other than a commodity vides for an agreement or transaction re- board of trade that is cleared by such clear- contract) for the purchase, sale, or transfer ferred to in subclause (I), (III), or (IV), to- ing organization; of a commodity or any similar good, article, gether with all supplements to any such ‘‘(V) with respect to a commodity options service, right, or interest which is presently master agreement, without regard to wheth- dealer, a commodity option; or in the future becomes the subject of deal- er the master agreement provides for an ‘‘(VI) any other agreement or transaction ing in the forward contract trade, or product agreement or transaction that is not a repur- that is similar to any agreement or trans- or byproduct thereof, with a maturity date chase agreement under this clause, except action referred to in this clause; more than 2 days after the date the contract that the master agreement shall be consid- ‘‘(VII) any combination of the agreements is entered into, including, a repurchase ered to be a repurchase agreement under this or transactions referred to in this clause; transaction, reverse repurchase transaction, subclause only with respect to each agree- ‘‘(VIII) any option to enter into any agree- consignment, lease, swap, hedge transaction, ment or transaction under the master agree- ment or transaction referred to in this deposit, loan, option, allocated transaction, ment that is referred to in subclause (I), clause; unallocated transaction, or any other simi- (III), or (IV); and ‘‘(IX) a master agreement that provides for lar agreement; ‘‘(VI) means any security agreement or ar- an agreement or transaction referred to in ‘‘(II) any combination of agreements or rangement or other credit enhancement re- subclause (I), (II), (III), (IV), (V), (VI), (VII), transactions referred to in subclauses (I) and lated to any agreement or transaction re- or (VIII), together with all supplements to (III); ferred to in subclause (I), (III), (IV), or (V), any such master agreement, without regard ‘‘(III) any option to enter into any agree- including any guarantee or reimbursement to whether the master agreement provides ment or transaction referred to in subclause obligation in connection with any agreement for an agreement or transaction that is not (I) or (II); or transaction referred to in any such sub- a commodity contract under this clause, ex- ‘‘(IV) a master agreement that provides for clause. cept that the master agreement shall be con- an agreement or transaction referred to in sidered to be a commodity contract under subclauses (I), (II), or (III), together with all For purposes of this clause, the term ‘quali- this clause only with respect to each agree- supplements to any such master agreement, fied foreign government security’ means a ment or transaction under the master agree- without regard to whether the master agree- security that is a direct obligation of, or ment that is referred to in subclause (I), (II), ment provides for an agreement or trans- that is fully guaranteed by, the central gov- (III), (IV), (V), (VI), (VII), or (VIII); or action that is not a forward contract under ernment of a member of the Organization for ‘‘(X) any security agreement or arrange- this clause, except that the master agree- Economic Cooperation and Development (as ment or other credit enhancement related to ment shall be considered to be a forward con- determined by regulation or order adopted any agreement or transaction referred to in tract under this clause only with respect to by the appropriate Federal banking author- this clause, including any guarantee or reim- each agreement or transaction under the ity).’’. bursement obligation in connection with any master agreement that is referred to in sub- (2) INSURED CREDIT UNIONS.—Section agreement or transaction referred to in this clause (I), (II), or (III); or 207(c)(8)(D)(v) of the Federal Credit Union clause.’’. ‘‘(V) any security agreement or arrange- Act (12 U.S.C. 1787(c)(8)(D)(v)) is amended to (d) DEFINITION OF FORWARD CONTRACT.— ment or other credit enhancement related to read as follows: (1) FDIC-INSURED DEPOSITORY INSTITU- any agreement or transaction referred to in ‘‘(v) REPURCHASE AGREEMENT.—The term TIONS.—Section 11(e)(8)(D)(iv) of the Federal subclause (I), (II), (III), or (IV), including any ‘repurchase agreement’ (which definition Deposit Insurance Act (12 U.S.C. guarantee or reimbursement obligation in also applies to a reverse repurchase agree- 1821(e)(8)(D)(iv)) is amended to read as fol- connection with any agreement or trans- ment)— lows: action referred to in any such subclause.’’. ‘‘(I) means an agreement, including related ‘‘(iv) FORWARD CONTRACT.—The term ‘for- (e) DEFINITION OF REPURCHASE AGREE- terms, which provides for the transfer of one ward contract’ means— MENT.— or more certificates of deposit, mortgage-re- ‘‘(I) a contract (other than a commodity (1) FDIC-INSURED DEPOSITORY INSTITU- lated securities (as such term is defined in contract) for the purchase, sale, or transfer TIONS.—Section 11(e)(8)(D)(v) of the Federal the Securities Exchange Act of 1934), mort- of a commodity or any similar good, article, Deposit Insurance Act (12 U.S.C. gage loans, interests in mortgage-related se- service, right, or interest which is presently 1821(e)(8)(D)(v)) is amended to read as fol- curities or mortgage loans, eligible bankers’ or in the future becomes the subject of deal- lows: acceptances, qualified foreign government ing in the forward contract trade, or product ‘‘(v) REPURCHASE AGREEMENT.—The term securities or securities that are direct obli- or byproduct thereof, with a maturity date ‘repurchase agreement’ (which definition gations of, or that are fully guaranteed by, more than 2 days after the date the contract also applies to a reverse repurchase agree- the United States or any agency of the is entered into, including, a repurchase ment)— United States against the transfer of funds

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00124 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S805 by the transferee of such certificates of de- erence in such agreement) and that is a for- rities or other debt instruments, quan- posit, eligible bankers’ acceptances, securi- ward, swap, future, or option on one or more titative measures associated with an occur- ties, mortgage loans, or interests with a si- rates, currencies, commodities, equity secu- rence, extent of an occurrence, or contin- multaneous agreement by such transferee to rities or other equity instruments, debt secu- gency associated with a financial, commer- transfer to the transferor thereof certificates rities or other debt instruments, quan- cial, or economic consequence, or economic of deposit, eligible bankers’ acceptances, se- titative measures associated with an occur- or financial indices or measures of economic curities, mortgage loans, or interests as de- rence, extent of an occurrence, or contin- or financial risk or value; scribed above, at a date certain not later gency associated with a financial, commer- ‘‘(III) any combination of agreements or than 1 year after such transfers or on de- cial, or economic consequence, or economic transactions referred to in this clause; mand, against the transfer of funds, or any or financial indices or measures of economic ‘‘(IV) any option to enter into any agree- other similar agreement; or financial risk or value; ment or transaction referred to in this ‘‘(II) does not include any repurchase obli- ‘‘(III) any combination of agreements or clause; gation under a participation in a commercial transactions referred to in this clause; ‘‘(V) a master agreement that provides for mortgage loan unless the Board determines ‘‘(IV) any option to enter into any agree- an agreement or transaction referred to in by regulation, resolution, or order to include ment or transaction referred to in this subclause (I), (II), (III), or (IV), together with any such participation within the meaning clause; all supplements to any such master agree- of such term; ‘‘(V) a master agreement that provides for ment, without regard to whether the master ‘‘(III) means any combination of agree- an agreement or transaction referred to in agreement contains an agreement or trans- ments or transactions referred to in sub- subclause (I), (II), (III), or (IV), together with action that is not a swap agreement under clauses (I) and (IV); all supplements to any such master agree- this clause, except that the master agree- ‘‘(IV) means any option to enter into any ment, without regard to whether the master ment shall be considered to be a swap agree- agreement or transaction referred to in sub- agreement contains an agreement or trans- ment under this clause only with respect to clause (I) or (III); action that is not a swap agreement under each agreement or transaction under the ‘‘(V) means a master agreement that pro- this clause, except that the master agree- master agreement that is referred to in sub- vides for an agreement or transaction re- ment shall be considered to be a swap agree- clause (I), (II), (III), or (IV); and ferred to in subclause (I), (III), or (IV), to- ment under this clause only with respect to ‘‘(VI) any security agreement or arrange- gether with all supplements to any such each agreement or transaction under the ment or other credit enhancement related to master agreement, without regard to wheth- master agreement that is referred to in sub- any agreements or transactions referred to er the master agreement provides for an clause (I), (II), (III), or (IV); and in subclause (I), (II), (III), (IV), or (V), in- agreement or transaction that is not a repur- ‘‘(VI) any security agreement or arrange- cluding any guarantee or reimbursement ob- chase agreement under this clause, except ment or other credit enhancement related to ligation in connection with any agreement that the master agreement shall be consid- any agreements or transactions referred to or transaction referred to in any such sub- ered to be a repurchase agreement under this in subclause (I), (II), (III), (IV), or (V), in- clause. subclause only with respect to each agree- cluding any guarantee or reimbursement ob- Such term is applicable for purposes of this ment or transaction under the master agree- ligation in connection with any agreement subsection only and shall not be construed or ment that is referred to in subclause (I), or transaction referred to in any such sub- applied so as to challenge or affect the char- (III), or (IV); and clause. acterization, definition, or treatment of any swap agreement under any other statute, ‘‘(VI) means any security agreement or ar- Such term is applicable for purposes of this regulation, or rule, including the Securities rangement or other credit enhancement re- subsection only and shall not be construed or Act of 1933, the Securities Exchange Act of lated to any agreement or transaction re- applied so as to challenge or affect the char- 1934, the Public Utility Holding Company ferred to in subclause (I), (III), (IV), or (V), acterization, definition, or treatment of any Act of 1935, the Trust Indenture Act of 1939, including any guarantee or reimbursement swap agreement under any other statute, the Investment Company Act of 1940, the In- obligation in connection with any agreement regulation, or rule, including the Securities vestment Advisers Act of 1940, the Securities or transaction referred to in any such sub- Act of 1933, the Securities Exchange Act of Investor Protection Act of 1970, the Com- clause. 1934, the Public Utility Holding Company modity Exchange Act, the Gramm-Leach- For purposes of this clause, the term ‘quali- Act of 1935, the Trust Indenture Act of 1939, Bliley Act, and the Legal Certainty for Bank fied foreign government security’ means a the Investment Company Act of 1940, the In- Products Act of 2000.’’. security that is a direct obligation of, or vestment Advisers Act of 1940, the Securities (g) DEFINITION OF TRANSFER.— that is fully guaranteed by, the central gov- Investor Protection Act of 1970, the Com- (1) FDIC-INSURED DEPOSITORY INSTITU- ernment of a member of the Organization for modity Exchange Act, the Gramm-Leach- TIONS.—Section 11(e)(8)(D)(viii) of the Fed- Economic Cooperation and Development (as Bliley Act, and the Legal Certainty for Bank eral Deposit Insurance Act (12 U.S.C. determined by regulation or order adopted Products Act of 2000.’’. 1821(e)(8)(D)(viii)) is amended to read as fol- by the appropriate Federal banking author- (2) INSURED CREDIT UNIONS.—Section lows: ity).’’. 207(c)(8)(D) of the Federal Credit Union Act ‘‘(viii) TRANSFER.—The term ‘transfer’ (f) DEFINITION OF SWAP AGREEMENT.— (12 U.S.C. 1787(c)(8)(D)) is amended by adding means every mode, direct or indirect, abso- (1) FDIC-INSURED DEPOSITORY INSTITU- at the end the following new clause: lute or conditional, voluntary or involun- TIONS.—Section 11(e)(8)(D)(vi) of the Federal ‘‘(vi) SWAP AGREEMENT.—The term ‘swap tary, of disposing of or parting with property Deposit Insurance Act (12 U.S.C. agreement’ means— or with an interest in property, including re- 1821(e)(8)(D)(vi)) is amended to read as fol- ‘‘(I) any agreement, including the terms tention of title as a security interest and lows: and conditions incorporated by reference in foreclosure of the depository institution’s ‘‘(vi) SWAP AGREEMENT.—The term ‘swap any such agreement, which is an interest equity of redemption.’’. agreement’ means— rate swap, option, future, or forward agree- (2) INSURED CREDIT UNIONS.—Section ‘‘(I) any agreement, including the terms ment, including a rate floor, rate cap, rate 207(c)(8)(D) of the Federal Credit Union Act and conditions incorporated by reference in collar, cross-currency rate swap, and basis (12 U.S.C. 1787(c)(8)(D)) (as amended by sub- any such agreement, which is an interest swap; a spot, same day-tomorrow, tomorrow- section (f) of this section) is amended by add- rate swap, option, future, or forward agree- next, forward, or other foreign exchange or ing at the end the following new clause: ment, including a rate floor, rate cap, rate precious metals agreement; a currency swap, ‘‘(viii) TRANSFER.—The term ‘transfer’ collar, cross-currency rate swap, and basis option, future, or forward agreement; an eq- means every mode, direct or indirect, abso- swap; a spot, same day-tomorrow, tomorrow- uity index or equity swap, option, future, or lute or conditional, voluntary or involun- next, forward, or other foreign exchange or forward agreement; a debt index or debt tary, of disposing of or parting with property precious metals agreement; a currency swap, swap, option, future, or forward agreement; a or with an interest in property, including re- option, future, or forward agreement; an eq- total return, credit spread or credit swap, op- tention of title as a security interest and uity index or equity swap, option, future, or tion, future, or forward agreement; a com- foreclosure of the depository institution’s forward agreement; a debt index or debt modity index or commodity swap, option, fu- equity of redemption.’’. swap, option, future, or forward agreement; a ture, or forward agreement; or a weather (h) TREATMENT OF QUALIFIED FINANCIAL total return, credit spread or credit swap, op- swap, weather derivative, or weather option; CONTRACTS.— tion, future, or forward agreement; a com- ‘‘(II) any agreement or transaction that is (1) FDIC-INSURED DEPOSITORY INSTITU- modity index or commodity swap, option, fu- similar to any other agreement or trans- TIONS.—Section 11(e)(8) of the Federal De- ture, or forward agreement; or a weather action referred to in this clause and that is posit Insurance Act (12 U.S.C. 1821(e)(8)) is swap, weather derivative, or weather option; of a type that has been, is presently, or in amended— ‘‘(II) any agreement or transaction that is the future becomes, the subject of recurrent (A) in subparagraph (A)— similar to any other agreement or trans- dealings in the swap markets (including (i) by striking ‘‘paragraph (10)’’ and insert- action referred to in this clause and that is terms and conditions incorporated by ref- ing ‘‘paragraphs (9) and (10)’’; of a type that has been, is presently, or in erence in such agreement) and that is a for- (ii) in clause (i), by striking ‘‘to cause the the future becomes, the subject of recurrent ward, swap,future, or option on one or more termination or liquidation’’ and inserting dealings in the swap markets (including rates, currencies, commodities, equity secu- ‘‘such person has to cause the termination, terms and conditions incorporated by ref- rities or other equity instruments, debt secu- liquidation, or acceleration’’; and

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00125 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S806 CONGRESSIONAL RECORD — SENATE February 1, 2005 (iii) by striking clause (ii) and inserting ‘walkaway clause’ means a provision in a pointed or which is otherwise the subject of the following new clause: qualified financial contract that, after cal- a bankruptcy or insolvency proceeding— ‘‘(ii) any right under any security agree- culation of a value of a party’s position or an ‘‘(I) all qualified financial contracts be- ment or arrangement or other credit en- amount due to or from 1 of the parties in ac- tween any person or any affiliate of such per- hancement related to one or more qualified cordance with its terms upon termination, son and the depository institution in default; financial contracts described in clause (i);’’; liquidation, or acceleration of the qualified ‘‘(II) all claims of such person or any affil- and financial contract, either does not create a iate of such person against such depository (B) in subparagraph (E), by striking clause payment obligation of a party or extin- institution under any such contract (other (ii) and inserting the following: guishes a payment obligation of a party in than any claim which, under the terms of ‘‘(ii) any right under any security agree- whole or in part solely because of such par- any such contract, is subordinated to the ment or arrangement or other credit en- ty’s status as a nondefaulting party.’’. claims of general unsecured creditors of such hancement related to one or more qualified (2) TECHNICAL AND CONFORMING AMEND- institution); financial contracts described in clause (i);’’. MENT.—Section 11(e)(12)(A) of the Federal ‘‘(III) all claims of such depository institu- (2) INSURED CREDIT UNIONS.—Section Deposit Insurance Act (12 U.S.C. tion against such person or any affiliate of 207(c)(8) of the Federal Credit Union Act (12 1821(e)(12)(A)) is amended by inserting ‘‘or such person under any such contract; and U.S.C. 1787(c)(8)) is amended— the exercise of rights or powers by’’ after ‘‘(IV) all property securing or any other (A) in subparagraph (A)— ‘‘the appointment of’’. credit enhancement for any contract de- (b) NATIONAL CREDIT UNION ADMINISTRA- (i) by striking ‘‘paragraph (12)’’ and insert- scribed in subclause (I) or any claim de- ing ‘‘paragraphs (9) and (10)’’; TION BOARD.— scribed in subclause (II) or (III) under any (ii) in clause (i), by striking ‘‘to cause the (1) IN GENERAL.—Section 207(c)(8) of the such contract; or termination or liquidation’’ and inserting Federal Credit Union Act (12 U.S.C. ‘‘(ii) transfer none of the qualified finan- ‘‘such person has to cause the termination, 1787(c)(8)) is amended— cial contracts, claims, property or other liquidation, or acceleration’’; and (A) in subparagraph (E) (as amended by credit enhancement referred to in clause (i) (iii) by striking clause (ii) and inserting section 901(h)), by striking ‘‘other than para- (with respect to such person and any affiliate the following new clause: graph (12) of this subsection, subsection of such person). ‘‘(ii) any right under any security agree- (b)(9)’’ and inserting ‘‘other than subsections ment or arrangement or other credit en- (b)(9) and (c)(10)’’; and ‘‘(B) TRANSFER TO FOREIGN BANK, FOREIGN hancement related to 1 or more qualified fi- (B) by adding at the end the following new FINANCIAL INSTITUTION, OR BRANCH OR AGENCY nancial contracts described in clause (i);’’; subparagraphs: OF A FOREIGN BANK OR FINANCIAL INSTITU- and ‘‘(F) CLARIFICATION.—No provision of law TION.—In transferring any qualified financial (B) in subparagraph (E), by striking clause shall be construed as limiting the right or contracts and related claims and property (ii) and inserting the following new clause: power of the Board, or authorizing any court under subparagraph (A)(i), the conservator ‘‘(ii) any right under any security agree- or agency to limit or delay, in any manner, or receiver for the depository institution ment or arrangement or other credit en- the right or power of the Board to transfer shall not make such transfer to a foreign hancement related to 1 or more qualified fi- any qualified financial contract in accord- bank, financial institution organized under nancial contracts described in clause (i);’’. ance with paragraphs (9) and (10) of this sub- the laws of a foreign country, or a branch or (i) AVOIDANCE OF TRANSFERS.— section or to disaffirm or repudiate any such agency of a foreign bank or financial institu- (1) FDIC-INSURED DEPOSITORY INSTITU- contract in accordance with subsection (c)(1) tion unless, under the law applicable to such TIONS.—Section 11(e)(8)(C)(i) of the Federal of this section. bank, financial institution, branch or agen- Deposit Insurance Act (12 U.S.C. ‘‘(G) WALKAWAY CLAUSES NOT EFFECTIVE.— cy, to the qualified financial contracts, and 1821(e)(8)(C)(i)) is amended by inserting ‘‘sec- ‘‘(i) IN GENERAL.—Notwithstanding the pro- to any netting contract, any security agree- tion 5242 of the Revised Statutes of the visions of subparagraphs (A) and (E), and sec- ment or arrangement or other credit en- United States or any other Federal or State tions 403 and 404 of the Federal Deposit In- hancement related to one or more qualified law relating to the avoidance of preferential surance Corporation Improvement Act of financial contracts, the contractual rights of or fraudulent transfers,’’ before ‘‘the Cor- 1991, no walkaway clause shall be enforceable the parties to such qualified financial con- poration’’. in a qualified financial contract of an in- tracts, netting contracts, security agree- (2) INSURED CREDIT UNIONS.—Section sured credit union in default. ments or arrangements, or other credit en- 207(c)(8)(C)(i) of the Federal Credit Union Act ‘‘(ii) WALKAWAY CLAUSE DEFINED.—For pur- hancements are enforceable substantially to (12 U.S.C. 1787(c)(8)(C)(i)) is amended by in- poses of this subparagraph, the term the same extent as permitted under this sec- serting ‘‘section 5242 of the Revised Statutes ‘walkaway clause’ means a provision in a tion. of the United States or any other Federal or qualified financial contract that, after cal- ‘‘(C) TRANSFER OF CONTRACTS SUBJECT TO State law relating to the avoidance of pref- culation of a value of a party’s position or an THE RULES OF A CLEARING ORGANIZATION.—In erential or fraudulent transfers,’’ before ‘‘the amount due to or from 1 of the parties in ac- the event that a conservator or receiver Board’’. cordance with its terms upon termination, transfers any qualified financial contract SEC. 902. AUTHORITY OF THE FDIC AND NCUAB liquidation, or acceleration of the qualified and related claims, property, and credit en- WITH RESPECT TO FAILED AND financial contract, either does not create a hancements pursuant to subparagraph (A)(i) FAILING INSTITUTIONS. payment obligation of a party or extin- and such contract is cleared by or subject to (a) FEDERAL DEPOSIT INSURANCE CORPORA- guishes a payment obligation of a party in the rules of a clearing organization, the TION.— whole or in part solely because of such par- clearing organization shall not be required (1) IN GENERAL.—Section 11(e)(8) of the ty’s status as a nondefaulting party.’’. to accept the transferee as a member by vir- Federal Deposit Insurance Act (12 U.S.C. (2) TECHNICAL AND CONFORMING AMEND- tue of the transfer. 1821(e)(8)) is amended— MENT.—Section 207(c)(12)(A) of the Federal ‘‘(D) DEFINITIONS.—For purposes of this (A) in subparagraph (E), by striking ‘‘other Credit Union Act (12 U.S.C. 1787(c)(12)(A)) is paragraph, the term ‘financial institution’ than paragraph (12) of this subsection, sub- amended by inserting ‘‘or the exercise of means a broker or dealer, a depository insti- section (d)(9)’’ and inserting ‘‘other than sub- rights or powers by’’ after ‘‘the appointment tution, a futures commission merchant, or sections (d)(9) and (e)(10)’’; and of’’. any other institution, as determined by the (B) by adding at the end the following new SEC. 903. AMENDMENTS RELATING TO TRANS- Corporation by regulation to be a financial subparagraphs: FERS OF QUALIFIED FINANCIAL institution, and the term ‘clearing organiza- ‘‘(F) CLARIFICATION.—No provision of law CONTRACTS. tion’ has the same meaning as in section 402 shall be construed as limiting the right or (a) FDIC-INSURED DEPOSITORY INSTITU- of the Federal Deposit Insurance Corporation power of the Corporation, or authorizing any TIONS.— Improvement Act of 1991.’’. court or agency to limit or delay, in any (1) TRANSFERS OF QUALIFIED FINANCIAL (2) NOTICE TO QUALIFIED FINANCIAL CON- manner, the right or power of the Corpora- CONTRACTS TO FINANCIAL INSTITUTIONS.—Sec- TRACT COUNTERPARTIES.—Section 11(e)(10)(A) tion to transfer any qualified financial con- tion 11(e)(9) of the Federal Deposit Insurance of the Federal Deposit Insurance Act (12 tract in accordance with paragraphs (9) and Act (12 U.S.C. 1821(e)(9)) is amended to read U.S.C. 1821(e)(10)(A)) is amended in the mate- (10) of this subsection or to disaffirm or repu- as follows: rial immediately following clause (ii) by diate any such contract in accordance with ‘‘(9) TRANSFER OF QUALIFIED FINANCIAL CON- striking ‘‘the conservator’’ and all that fol- subsection (e)(1) of this section. TRACTS.— lows through the period and inserting the ‘‘(G) WALKAWAY CLAUSES NOT EFFECTIVE.— ‘‘(A) IN GENERAL.—In making any transfer following: ‘‘the conservator or receiver shall ‘‘(i) IN GENERAL.—Notwithstanding the pro- of assets or liabilities of a depository institu- notify any person who is a party to any such visions of subparagraphs (A) and (E), and sec- tion in default which includes any qualified contract of such transfer by 5:00 p.m. (east- tions 403 and 404 of the Federal Deposit In- financial contract, the conservator or re- ern time) on the business day following the surance Corporation Improvement Act of ceiver for such depository institution shall date of the appointment of the receiver in 1991, no walkaway clause shall be enforceable either— the case of a receivership, or the business in a qualified financial contract of an in- ‘‘(i) transfer to one financial institution, day following such transfer in the case of a sured depository institution in default. other than a financial institution for which conservatorship.’’. ‘‘(ii) WALKAWAY CLAUSE DEFINED.—For pur- a conservator, receiver, trustee in bank- (3) RIGHTS AGAINST RECEIVER AND CONSER- poses of this subparagraph, the term ruptcy, or other legal custodian has been ap- VATOR AND TREATMENT OF BRIDGE BANKS.—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00126 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S807 Section 11(e)(10) of the Federal Deposit In- ‘‘(I) all qualified financial contracts be- Credit Union Act (12 U.S.C. 1787(c)(10)) is surance Act (12 U.S.C. 1821(e)(10)) is amend- tween any person or any affiliate of such per- amended— ed— son and the credit union in default; (A) by redesignating subparagraph (B) as (A) by redesignating subparagraph (B) as ‘‘(II) all claims of such person or any affil- subparagraph (D); and subparagraph (D); and iate of such person against such credit union (B) by inserting after subparagraph (A) the (B) by inserting after subparagraph (A) the under any such contract (other than any following new subparagraphs: following new subparagraphs: claim which, under the terms of any such ‘‘(B) CERTAIN RIGHTS NOT ENFORCEABLE.— ‘‘(B) CERTAIN RIGHTS NOT ENFORCEABLE.— contract, is subordinated to the claims of ‘‘(i) LIQUIDATION.—A person who is a party ‘‘(i) RECEIVERSHIP.—A person who is a general unsecured creditors of such credit to a qualified financial contract with an in- party to a qualified financial contract with union); sured credit union may not exercise any an insured depository institution may not ‘‘(III) all claims of such credit union right that such person has to terminate, liq- exercise any right that such person has to against such person or any affiliate of such uidate, or net such contract under paragraph terminate, liquidate, or net such contract person under any such contract; and (8)(A) of this subsection or section 403 or 404 under paragraph (8)(A) of this subsection or ‘‘(IV) all property securing or any other of the Federal Deposit Insurance Corporation section 403 or 404 of the Federal Deposit In- credit enhancement for any contract de- Improvement Act of 1991, solely by reason of surance Corporation Improvement Act of scribed in subclause (I) or any claim de- or incidental to the appointment of a liqui- 1991, solely by reason of or incidental to the scribed in subclause (II) or (III) under any dating agent for the credit union institution appointment of a receiver for the depository such contract; or (or the insolvency or financial condition of institution (or the insolvency or financial ‘‘(ii) transfer none of the qualified finan- the credit union for which the liquidating condition of the depository institution for cial contracts, claims, property or other agent has been appointed)— which the receiver has been appointed)— credit enhancement referred to in clause (i) ‘‘(I) until 5:00 p.m. (eastern time) on the ‘‘(I) until 5:00 p.m. (eastern time) on the (with respect to such person and any affiliate business day following the date of the ap- business day following the date of the ap- of such person). pointment of the liquidating agent; or pointment of the receiver; or ‘‘(B) TRANSFER TO FOREIGN BANK, FOREIGN ‘‘(II) after the person has received notice ‘‘(II) after the person has received notice FINANCIAL INSTITUTION, OR BRANCH OR AGENCY that the contract has been transferred pursu- that the contract has been transferred pursu- OF A FOREIGN BANK OR FINANCIAL INSTITU- ant to paragraph (9)(A). ant to paragraph (9)(A). TION.—In transferring any qualified financial ‘‘(ii) CONSERVATORSHIP.—A person who is a ‘‘(ii) CONSERVATORSHIP.—A person who is a contracts and related claims and property party to a qualified financial contract with party to a qualified financial contract with under subparagraph (A)(i), the conservator an insured credit union may not exercise any an insured depository institution may not or liquidating agent for the credit union right that such person has to terminate, liq- exercise any right that such person has to shall not make such transfer to a foreign uidate, or net such contract under paragraph terminate, liquidate, or net such contract bank, financial institution organized under (8)(E) of this subsection or section 403 or 404 under paragraph (8)(E) of this subsection or the laws of a foreign country, or a branch or of the Federal Deposit Insurance Corporation section 403 or 404 of the Federal Deposit In- agency of a foreign bank or financial institu- Improvement Act of 1991, solely by reason of surance Corporation Improvement Act of tion unless, under the law applicable to such or incidental to the appointment of a conser- bank, financial institution, branch or agen- 1991, solely by reason of or incidental to the vator for the credit union or the insolvency cy, to the qualified financial contracts, and appointment of a conservator for the deposi- or financial condition of the credit union for to any netting contract, any security agree- tory institution (or the insolvency or finan- which the conservator has been appointed). ment or arrangement or other credit en- cial condition of the depository institution ‘‘(iii) NOTICE.—For purposes of this para- hancement related to 1 or more qualified fi- for which the conservator has been ap- graph, the Board as conservator or liqui- nancial contracts, the contractual rights of pointed). dating agent of an insured credit union shall the parties to such qualified financial con- ‘‘(iii) NOTICE.—For purposes of this para- be deemed to have notified a person who is a tracts, netting contracts, security agree- graph, the Corporation as receiver or conser- party to a qualified financial contract with ments or arrangements, or other credit en- vator of an insured depository institution such credit union if the Board has taken hancements are enforceable substantially to shall be deemed to have notified a person steps reasonably calculated to provide notice the same extent as permitted under this sec- to such person by the time specified in sub- who is a party to a qualified financial con- tion. tract with such depository institution if the paragraph (A). ‘‘(C) TRANSFER OF CONTRACTS SUBJECT TO Corporation has taken steps reasonably cal- ‘‘(C) TREATMENT OF BRIDGE BANKS.—The THE RULES OF A CLEARING ORGANIZATION.—In following institutions shall not be considered culated to provide notice to such person by the event that a conservator or liquidating the time specified in subparagraph (A). to be a financial institution for which a con- agent transfers any qualified financial con- servator, receiver, trustee in bankruptcy, or ‘‘(C) TREATMENT OF BRIDGE BANKS.—The tract and related claims, property, and cred- following institutions shall not be considered other legal custodian has been appointed or it enhancements pursuant to subparagraph which is otherwise the subject of a bank- to be a financial institution for which a con- (A)(i) and such contract is cleared by or sub- servator, receiver, trustee in bankruptcy, or ruptcy or insolvency proceeding for purposes ject to the rules of a clearing organization, of paragraph (9): other legal custodian has been appointed or the clearing organization shall not be re- which is otherwise the subject of a bank- ‘‘(i) A bridge bank. quired to accept the transferee as a member ‘‘(ii) A credit union organized by the ruptcy or insolvency proceeding for purposes by virtue of the transfer. of paragraph (9): Board, for which a conservator is appointed ‘‘(D) DEFINITIONS.—For purposes of this either— ‘‘(i) A bridge bank. paragraph— ‘‘(ii) A depository institution organized by ‘‘(I) immediately upon the organization of ‘‘(i) the term ‘financial institution’ means the credit union; or the Corporation, for which a conservator is a broker or dealer, a depository institution, appointed either— ‘‘(II) at the time of a purchase and assump- a futures commission merchant, a credit tion transaction between the credit union ‘‘(I) immediately upon the organization of union, or any other institution, as deter- the institution; or and the Board as receiver for a credit union mined by the Board by regulation to be a fi- in default.’’. ‘‘(II) at the time of a purchase and assump- nancial institution; and SEC. 904. AMENDMENTS RELATING TO tion transaction between the depository in- ‘‘(ii) the term ‘clearing organization’ has stitution and the Corporation as receiver for DISAFFIRMANCE OR REPUDIATION the same meaning as in section 402 of the OF QUALIFIED FINANCIAL CON- a depository institution in default.’’. Federal Deposit Insurance Corporation Im- TRACTS. (b) INSURED CREDIT UNIONS.— provement Act of 1991.’’. (a) FDIC-INSURED DEPOSITORY INSTITU- (1) TRANSFERS OF QUALIFIED FINANCIAL CON- (2) NOTICE TO QUALIFIED FINANCIAL CON- TIONS.—Section 11(e) of the Federal Deposit TRACTS TO FINANCIAL INSTITUTIONS.—Section TRACT COUNTERPARTIES.—Section Insurance Act (12 U.S.C. 1821(e)) is amend- 207(c)(9) of the Federal Credit Union Act (12 207(c)(10)(A) of the Federal Credit Union Act ed— U.S.C. 1787(c)(9)) is amended to read as fol- (12 U.S.C. 1787(c)(10)(A)) is amended in the (1) by redesignating paragraphs (11) lows: material immediately following clause (ii) through (15) as paragraphs (12) through (16), ‘‘(9) TRANSFER OF QUALIFIED FINANCIAL CON- by striking ‘‘the conservator’’ and all that respectively; TRACTS.— follows through the period and inserting the (2) by inserting after paragraph (10) the fol- ‘‘(A) IN GENERAL.—In making any transfer following: ‘‘the conservator or liquidating lowing new paragraph: of assets or liabilities of a credit union in de- agent shall notify any person who is a party ‘‘(11) DISAFFIRMANCE OR REPUDIATION OF fault which includes any qualified financial to any such contract of such transfer by 5:00 QUALIFIED FINANCIAL CONTRACTS.—In exer- contract, the conservator or liquidating p.m. (eastern time) on the business day fol- cising the rights of disaffirmance or repudi- agent for such credit union shall either— lowing the date of the appointment of the ation of a conservator or receiver with re- ‘‘(i) transfer to 1 financial institution, liquidating agent in the case of a liquidation, spect to any qualified financial contract to other than a financial institution for which or the business day following such transfer which an insured depository institution is a a conservator, receiver, trustee in bank- in the case of a conservatorship.’’. party, the conservator or receiver for such ruptcy, or other legal custodian has been ap- (3) RIGHTS AGAINST LIQUIDATING AGENT AND institution shall either— pointed or which is otherwise the subject of CONSERVATOR AND TREATMENT OF BRIDGE ‘‘(A) disaffirm or repudiate all qualified fi- a bankruptcy or insolvency proceeding— BANKS.—Section 207(c)(10) of the Federal nancial contracts between—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00127 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S808 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(i) any person or any affiliate of such per- (12 U.S.C. 1787(c)(8)(D)) is amended by insert- (10)(B) of section 11(e) of the Federal Deposit son; and ing after clause (vi) (as added by section Insurance Act, paragraphs (8)(E), (8)(F), and ‘‘(ii) the depository institution in default; 901(f)) the following new clause: (10)(B) of section 207(c) of the Federal Credit or ‘‘(vii) TREATMENT OF MASTER AGREEMENT Union Act, or any order authorized under ‘‘(B) disaffirm or repudiate none of the AS ONE AGREEMENT.—Any master agreement section 5(b)(2) of the Securities Investor Pro- qualified financial contracts referred to in for any contract or agreement described in tection Act of 1970), the covered contractual subparagraph (A) (with respect to such per- any preceding clause of this subparagraph payment obligations and the covered con- son or any affiliate of such person).’’; and (or any master agreement for such master tractual payment entitlements between any (3) by adding at the end the following new agreement or agreements), together with all 2 financial institutions shall be netted in ac- paragraph: supplements to such master agreement, shall cordance with, and subject to the conditions ‘‘(17) SAVINGS CLAUSE.—The meanings of be treated as a single agreement and a single of, the terms of any applicable netting con- terms used in this subsection are applicable qualified financial contract. If a master tract (except as provided in section 561(b)(2) for purposes of this subsection only, and agreement contains provisions relating to of title 11, United States Code).’’; and shall not be construed or applied so as to agreements or transactions that are not (2) by adding at the end the following new challenge or affect the characterization, def- themselves qualified financial contracts, the subsection: inition, or treatment of any similar terms master agreement shall be deemed to be a under any other statute, regulation, or rule, qualified financial contract only with re- ‘‘(f) ENFORCEABILITY OF SECURITY AGREE- including the Gramm-Leach-Bliley Act, the spect to those transactions that are them- MENTS.—The provisions of any security Legal Certainty for Bank Products Act of selves qualified financial contracts.’’. agreement or arrangement or other credit 2000, the securities laws (as that term is de- SEC. 906. FEDERAL DEPOSIT INSURANCE COR- enhancement related to one or more netting fined in section 3(a)(47) of the Securities Ex- PORATION IMPROVEMENT ACT OF contracts between any 2 financial institu- change Act of 1934), and the Commodity Ex- 1991. tions shall be enforceable in accordance with change Act.’’. (a) DEFINITIONS.—Section 402 of the Fed- their terms (except as provided in section (b) INSURED CREDIT UNIONS.—Section 207(c) eral Deposit Insurance Corporation Improve- 561(b)(2) of title 11, United States Code), and of the Federal Credit Union Act (12 U.S.C. ment Act of 1991 (12 U.S.C. 4402) is amended— shall not be stayed, avoided, or otherwise 1787(c)) is amended— (1) in paragraph (2)— limited by any State or Federal law (other (1) by redesignating paragraphs (11), (12), (A) in subparagraph (A)(ii), by inserting be- than paragraphs (8)(E), (8)(F), and (10)(B) of and (13) as paragraphs (12), (13), and (14), re- fore the semicolon ‘‘, or is exempt from such section 11(e) of the Federal Deposit Insur- spectively; registration by order of the Securities and ance Act, paragraphs (8)(E), (8)(F), and (2) by inserting after paragraph (10) the fol- Exchange Commission’’; and (10)(B) of section 207(c) of the Federal Credit lowing new paragraph: (B) in subparagraph (B), by inserting before Union Act, and section 5(b)(2) of the Securi- ‘‘(11) DISAFFIRMANCE OR REPUDIATION OF the period ‘‘, that has been granted an ex- ties Investor Protection Act of 1970).’’. QUALIFIED FINANCIAL CONTRACTS.—In exer- emption under section 4(c)(1) of the Com- (c) ENFORCEABILITY OF CLEARING ORGANIZA- cising the rights of disaffirmance or repudi- modity Exchange Act, or that is a multilat- TION NETTING CONTRACTS.—Section 404 of the ation of a conservator or liquidating agent eral clearing organization (as defined in sec- Federal Deposit Insurance Corporation Im- with respect to any qualified financial con- tion 408 of this Act)’’; provement Act of 1991 (12 U.S.C. 4404) is tract to which an insured credit union is a (2) in paragraph (6)— amended— party, the conservator or liquidating agent (A) by redesignating subparagraphs (B) (1) by striking subsection (a) and inserting for such credit union shall either— through (D) as subparagraphs (C) through the following: ‘‘(A) disaffirm or repudiate all qualified fi- (E), respectively; nancial contracts between— (B) by inserting after subparagraph (A) the ‘‘(a) GENERAL RULE.—Notwithstanding any ‘‘(i) any person or any affiliate of such per- following new subparagraph: other provision of State or Federal law son; and ‘‘(B) an uninsured national bank or an un- (other than paragraphs (8)(E), (8)(F), and ‘‘(ii) the credit union in default; or insured State bank that is a member of the (10)(B) of section 11(e) of the Federal Deposit ‘‘(B) disaffirm or repudiate none of the Federal Reserve System, if the national Insurance Act, paragraphs (8)(E), (8)(F), and qualified financial contracts referred to in bank or State member bank is not eligible to (10)(B) of section 207(c) of the Federal Credit subparagraph (A) (with respect to such per- make application to become an insured bank Union Act, and any order authorized under son or any affiliate of such person).’’; and under section 5 of the Federal Deposit Insur- section 5(b)(2) of the Securities Investor Pro- (3) by adding at the end the following new ance Act;’’; and tection Act of 1970), the covered contractual paragraph: (C) by amending subparagraph (C), so re- payment obligations and the covered con- ‘‘(15) SAVINGS CLAUSE.—The meanings of designated, to read as follows: tractual payment entitlements of a member terms used in this subsection are applicable ‘‘(C) a branch or agency of a foreign bank, of a clearing organization to and from all for purposes of this subsection only, and a foreign bank and any branch or agency of other members of a clearing organization shall not be construed or applied so as to the foreign bank, or the foreign bank that shall be netted in accordance with and sub- challenge or affect the characterization, def- established the branch or agency, as those ject to the conditions of any applicable net- inition, or treatment of any similar terms terms are defined in section 1(b) of the Inter- ting contract (except as provided in section under any other statute, regulation, or rule, national Banking Act of 1978;’’; 561(b)(2) of title 11, United States Code).’’; including the Gramm-Leach-Bliley Act, the (3) in paragraph (11), by inserting before and Legal Certainty for Bank Products Act of the period ‘‘and any other clearing organiza- (2) by adding at the end the following new 2000, the securities laws (as that term is de- tion with which such clearing organization subsection: fined in section (a)(47) of the Securities Ex- has a netting contract’’; ‘‘(h) ENFORCEABILITY OF SECURITY AGREE- change Act of 1934), and the Commodity Ex- (4) by amending paragraph (14)(A)(i) to MENTS.—The provisions of any security change Act.’’. read as follows: agreement or arrangement or other credit SEC. 905. CLARIFYING AMENDMENT RELATING ‘‘(i) means a contract or agreement be- enhancement related to one or more netting TO MASTER AGREEMENTS. tween 2 or more financial institutions, clear- contracts between any 2 members of a clear- (a) FDIC-INSURED DEPOSITORY INSTITU- ing organizations, or members that provides ing organization shall be enforceable in ac- TIONS.—Section 11(e)(8)(D)(vii) of the Federal for netting present or future payment obliga- cordance with their terms (except as pro- Deposit Insurance Act (12 U.S.C. tions or payment entitlements (including vided in section 561(b)(2) of title 11, United 1821(e)(8)(D)(vii)) is amended to read as fol- liquidation or close out values relating to States Code), and shall not be stayed, avoid- lows: such obligations or entitlements) among the ed, or otherwise limited by any State or Fed- ‘‘(vii) TREATMENT OF MASTER AGREEMENT parties to the agreement; and’’; and eral law (other than paragraphs (8)(E), (8)(F), AS ONE AGREEMENT.—Any master agreement (5) by adding at the end the following new and (10)(B) of section 11(e) of the Federal De- for any contract or agreement described in paragraph: posit Insurance Act, paragraphs (8)(E), (8)(F), any preceding clause of this subparagraph ‘‘(15) PAYMENT.—The term ‘payment’ and (10)(B) of section 207(c) of the Federal (or any master agreement for such master means a payment of United States dollars, Credit Union Act, and section 5(b)(2) of the agreement or agreements), together with all another currency, or a composite currency, Securities Investor Protection Act of 1970).’’. supplements to such master agreement, shall and a noncash delivery, including a payment be treated as a single agreement and a single or delivery to liquidate an unmatured obli- (d) ENFORCEABILITY OF CONTRACTS WITH qualified financial contract. If a master gation.’’. UNINSURED NATIONAL BANKS, UNINSURED FED- agreement contains provisions relating to (b) ENFORCEABILITY OF BILATERAL NETTING ERAL BRANCHES AND AGENCIES, CERTAIN UNIN- agreements or transactions that are not CONTRACTS.—Section 403 of the Federal De- SURED STATE MEMBER BANKS, AND EDGE ACT themselves qualified financial contracts, the posit Insurance Corporation Improvement CORPORATIONS.—The Federal Deposit Insur- master agreement shall be deemed to be a Act of 1991 (12 U.S.C. 4403) is amended— ance Corporation Improvement Act of 1991 qualified financial contract only with re- (1) by striking subsection (a) and inserting (12 U.S.C. 4401 et seq.) is amended— spect to those transactions that are them- the following: (1) by redesignating section 407 as section selves qualified financial contracts.’’. ‘‘(a) GENERAL RULE.—Notwithstanding any 407A; and (b) INSURED CREDIT UNIONS.—Section other provision of State or Federal law (2) by inserting after section 406 the fol- 207(c)(8)(D) of the Federal Credit Union Act (other than paragraphs (8)(E), (8)(F), and lowing new section:

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00128 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S809 ‘‘SEC. 407. TREATMENT OF CONTRACTS WITH UN- posit Insurance Corporation adopted pursu- kind described in this clause, at a date cer- INSURED NATIONAL BANKS, UNIN- ant to the Federal Deposit Insurance Act. tain not later than 1 year after such transfer SURED FEDERAL BRANCHES AND ‘‘(d) DEFINITIONS.—For purposes of this sec- or on demand, against the transfer of funds; AGENCIES, CERTAIN UNINSURED tion, the terms ‘Federal branch’, ‘Federal ‘‘(ii) any combination of agreements or STATE MEMBER BANKS, AND EDGE ACT CORPORATIONS. agency’, and ‘foreign bank’ have the same transactions referred to in clauses (i) and (iii); ‘‘(a) IN GENERAL.—Notwithstanding any meanings as in section 1(b) of the Inter- other provision of law, paragraphs (8), (9), national Banking Act of 1978.’’. ‘‘(iii) an option to enter into an agreement (10), and (11) of section 11(e) of the Federal SEC. 907. BANKRUPTCY LAW AMENDMENTS. or transaction referred to in clause (i) or (ii); ‘‘(iv) a master agreement that provides for Deposit Insurance Act shall apply to an un- (a) DEFINITIONS OF FORWARD CONTRACT, RE- an agreement or transaction referred to in insured national bank or uninsured Federal PURCHASE AGREEMENT, SECURITIES CLEARING clause (i), (ii), or (iii), together with all sup- branch or Federal agency, a corporation AGENCY, SWAP AGREEMENT, COMMODITY CON- plements to any such master agreement, chartered under section 25A of the Federal TRACT, AND SECURITIES CONTRACT.—Title 11, without regard to whether such master Reserve Act, or an uninsured State member United States Code, is amended— agreement provides for an agreement or bank which operates, or operates as, a multi- (1) in section 101— transaction that is not a repurchase agree- lateral clearing organization pursuant to (A) in paragraph (25)— ment under this paragraph, except that such section 409 of this Act, except that for such (i) by striking ‘‘means a contract’’ and in- master agreement shall be considered to be a purpose— serting ‘‘means— repurchase agreement under this paragraph ‘‘(1) any reference to the ‘Corporation as ‘‘(A) a contract’’; only with respect to each agreement or receiver’ or ‘the receiver or the Corporation’ (ii) by striking ‘‘, or any combination transaction under the master agreement thereof or option thereon;’’ and inserting ‘‘, shall refer to the receiver appointed by the that is referred to in clause (i), (ii), or (iii); or any other similar agreement;’’; and Comptroller of the Currency in the case of an or (iii) by adding at the end the following: uninsured national bank or uninsured Fed- ‘‘(v) any security agreement or arrange- ‘‘(B) any combination of agreements or eral branch or agency, or to the receiver ap- ment or other credit enhancement related to transactions referred to in subparagraphs (A) pointed by the Board of Governors of the any agreement or transaction referred to in and (C); Federal Reserve System in the case of a cor- clause (i), (ii), (iii), or (iv), including any poration chartered under section 25A of the ‘‘(C) any option to enter into an agreement guarantee or reimbursement obligation by or Federal Reserve Act or an uninsured State or transaction referred to in subparagraph to a repo participant or financial participant member bank; (A) or (B); in connection with any agreement or trans- ‘‘(2) any reference to the ‘Corporation’ ‘‘(D) a master agreement that provides for action referred to in any such clause, but not (other than in section 11(e)(8)(D) of such an agreement or transaction referred to in to exceed the damages in connection with Act), the ‘Corporation, whether acting as subparagraph (A), (B), or (C), together with any such agreement or transaction, meas- such or as conservator or receiver’, a ‘re- all supplements to any such master agree- ured in accordance with section 562 of this ceiver’, or a ‘conservator’ shall refer to the ment, without regard to whether such mas- title; and receiver or conservator appointed by the ter agreement provides for an agreement or ‘‘(B) does not include a repurchase obliga- Comptroller of the Currency in the case of an transaction that is not a forward contract tion under a participation in a commercial uninsured national bank or uninsured Fed- under this paragraph, except that such mas- mortgage loan;’’; eral branch or agency, or to the receiver or ter agreement shall be considered to be a for- (D) in paragraph (48), by inserting ‘‘, or ex- conservator appointed by the Board of Gov- ward contract under this paragraph only empt from such registration under such sec- ernors of the Federal Reserve System in the with respect to each agreement or trans- tion pursuant to an order of the Securities case of a corporation chartered under section action under such master agreement that is and Exchange Commission,’’ after ‘‘1934’’; 25A of the Federal Reserve Act or an unin- referred to in subparagraph (A), (B), or (C); and sured State member bank; and or (E) by amending paragraph (53B) to read as ‘‘(3) any reference to an ‘insured depository ‘‘(E) any security agreement or arrange- follows: institution’ or ‘depository institution’ shall ment, or other credit enhancement related ‘‘(53B) ‘swap agreement’— refer to an uninsured national bank, an unin- to any agreement or transaction referred to ‘‘(A) means— sured Federal branch or Federal agency, a in subparagraph (A), (B), (C), or (D), includ- ‘‘(i) any agreement, including the terms corporation chartered under section 25A of ing any guarantee or reimbursement obliga- and conditions incorporated by reference in the Federal Reserve Act, or an uninsured tion by or to a forward contract merchant or such agreement, which is— State member bank which operates, or oper- financial participant in connection with any ‘‘(I) an interest rate swap, option, future, ates as, a multilateral clearing organization agreement or transaction referred to in any or forward agreement, including a rate floor, pursuant to section 409 of this Act. such subparagraph, but not to exceed the rate cap, rate collar, cross-currency rate ‘‘(b) LIABILITY.—The liability of a receiver damages in connection with any such agree- swap, and basis swap; or conservator of an uninsured national ment or transaction, measured in accordance ‘‘(II) a spot, same day-tomorrow, tomor- bank, uninsured Federal branch or agency, a with section 562;’’; row-next, forward, or other foreign exchange corporation chartered under section 25A of (B) in paragraph (46), by striking ‘‘on any or precious metals agreement; the Federal Reserve Act, or an uninsured day during the period beginning 90 days be- ‘‘(III) a currency swap, option, future, or State member bank which operates, or oper- fore the date of’’ and inserting ‘‘at any time forward agreement; ates as, a multilateral clearing organization before’’; ‘‘(IV) an equity index or equity swap, op- pursuant to section 409 of this Act, shall be (C) by amending paragraph (47) to read as tion, future, or forward agreement; determined in the same manner and subject follows: ‘‘(V) a debt index or debt swap, option, fu- to the same limitations that apply to receiv- ‘‘(47) ‘repurchase agreement’ (which defini- ture, or forward agreement; ers and conservators of insured depository tion also applies to a reverse repurchase ‘‘(VI) a total return, credit spread or credit institutions under section 11(e) of the Fed- agreement)— swap, option, future, or forward agreement; eral Deposit Insurance Act. ‘‘(A) means— ‘‘(VII) a commodity index or a commodity ‘‘(c) REGULATORY AUTHORITY.— ‘‘(i) an agreement, including related terms, swap, option, future, or forward agreement; ‘‘(1) IN GENERAL.—The Comptroller of the which provides for the transfer of one or or Currency in the case of an uninsured na- more certificates of deposit, mortgage re- ‘‘(VIII) a weather swap, weather derivative, tional bank or uninsured Federal branch or lated securities (as defined in section 3 of the or weather option; agency and the Board of Governors of the Securities Exchange Act of 1934), mortgage ‘‘(ii) any agreement or transaction that is Federal Reserve System in the case of a cor- loans, interests in mortgage related securi- similar to any other agreement or trans- poration chartered under section 25A of the ties or mortgage loans, eligible bankers’ ac- action referred to in this paragraph and Federal Reserve Act, or an uninsured State ceptances, qualified foreign government se- that— member bank that operates, or operates as, a curities (defined as a security that is a direct ‘‘(I) is of a type that has been, is presently, multilateral clearing organization pursuant obligation of, or that is fully guaranteed by, or in the future becomes, the subject of re- to section 409 of this Act, in consultation the central government of a member of the current dealings in the swap markets (in- with the Federal Deposit Insurance Corpora- Organization for Economic Cooperation and cluding terms and conditions incorporated tion, may each promulgate regulations sole- Development), or securities that are direct by reference therein); and ly to implement this section. obligations of, or that are fully guaranteed ‘‘(II) is a forward, swap, future, or option ‘‘(2) SPECIFIC REQUIREMENT.—In promul- by, the United States or any agency of the on one or more rates, currencies, commod- gating regulations, limited solely to imple- United States against the transfer of funds ities, equity securities, or other equity in- menting paragraphs (8), (9), (10), and (11) of by the transferee of such certificates of de- struments, debt securities or other debt in- section 11(e) of the Federal Deposit Insur- posit, eligible bankers’ acceptances, securi- struments, quantitative measures associated ance Act, the Comptroller of the Currency ties, mortgage loans, or interests, with a si- with an occurrence, extent of an occurrence, and the Board of Governors of the Federal multaneous agreement by such transferee to or contingency associated with a financial, Reserve System each shall ensure that the transfer to the transferor thereof certificates commercial, or economic consequence, or regulations generally are consistent with the of deposit, eligible bankers’ acceptance, se- economic or financial indices or measures of regulations and policies of the Federal De- curities, mortgage loans, or interests of the economic or financial risk or value;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00129 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S810 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(iii) any combination of agreements or ‘‘(viii) a master agreement that provides (2) by inserting after paragraph (22) the fol- transactions referred to in this subpara- for an agreement or transaction referred to lowing: graph; in clause (i), (ii), (iii), (iv), (v), (vi), or (vii), ‘‘(22A) ‘financial participant’ means— ‘‘(iv) any option to enter into an agree- together with all supplements to any such ‘‘(A) an entity that, at the time it enters ment or transaction referred to in this sub- master agreement, without regard to wheth- into a securities contract, commodity con- paragraph; er the master agreement provides for an tract, swap agreement, repurchase agree- ‘‘(v) a master agreement that provides for agreement or transaction that is not a secu- ment, or forward contract, or at the time of an agreement or transaction referred to in rities contract under this subparagraph, ex- the date of the filing of the petition, has one clause (i), (ii), (iii), or (iv), together with all cept that such master agreement shall be or more agreements or transactions de- supplements to any such master agreement, considered to be a securities contract under scribed in paragraph (1), (2), (3), (4), (5), or (6) and without regard to whether the master this subparagraph only with respect to each of section 561(a) with the debtor or any other agreement contains an agreement or trans- agreement or transaction under such master entity (other than an affiliate) of a total action that is not a swap agreement under agreement that is referred to in clause (i), gross dollar value of not less than this paragraph, except that the master (ii), (iii), (iv), (v), (vi), or (vii); or $1,000,000,000 in notional or actual principal agreement shall be considered to be a swap ‘‘(ix) any security agreement or arrange- amount outstanding on any day during the agreement under this paragraph only with ment or other credit enhancement related to previous 15-month period, or has gross mark- respect to each agreement or transaction any agreement or transaction referred to in to-market positions of not less than under the master agreement that is referred this subparagraph, including any guarantee $100,000,000 (aggregated across to in clause (i), (ii), (iii), or (iv); or or reimbursement obligation by or to a counterparties) in one or more such agree- ‘‘(vi) any security agreement or arrange- stockbroker, securities clearing agency, fi- ments or transactions with the debtor or any ment or other credit enhancement related to nancial institution, or financial participant other entity (other than an affiliate) on any any agreements or transactions referred to in connection with any agreement or trans- day during the previous 15-month period; or in clause (i) through (v), including any guar- action referred to in this subparagraph, but ‘‘(B) a clearing organization (as defined in antee or reimbursement obligation by or to a not to exceed the damages in connection section 402 of the Federal Deposit Insurance swap participant or financial participant in with any such agreement or transaction, Corporation Improvement Act of 1991);’’; and connection with any agreement or trans- measured in accordance with section 562; and (3) by striking paragraph (26) and inserting action referred to in any such clause, but not ‘‘(B) does not include any purchase, sale, or the following: to exceed the damages in connection with repurchase obligation under a participation ‘‘(26) ‘forward contract merchant’ means a any such agreement or transaction, meas- in a commercial mortgage loan;’’; and Federal reserve bank, or an entity the busi- ured in accordance with section 562; and (3) in section 761(4)— ness of which consists in whole or in part of ‘‘(B) is applicable for purposes of this title (A) by striking ‘‘or’’ at the end of subpara- entering into forward contracts as or with only, and shall not be construed or applied so graph (D); and merchants in a commodity (as defined in sec- as to challenge or affect the characteriza- (B) by adding at the end the following: tion 761) or any similar good, article, service, tion, definition, or treatment of any swap ‘‘(F) any other agreement or transaction right, or interest which is presently or in the agreement under any other statute, regula- that is similar to an agreement or trans- future becomes the subject of dealing in the tion, or rule, including the Securities Act of action referred to in this paragraph; forward contract trade;’’. 1933, the Securities Exchange Act of 1934, the ‘‘(G) any combination of the agreements or (c) DEFINITION OF MASTER NETTING AGREE- Public Utility Holding Company Act of 1935, transactions referred to in this paragraph; MENT AND MASTER NETTING AGREEMENT PAR- the Trust Indenture Act of 1939, the Invest- ‘‘(H) any option to enter into an agreement TICIPANT.—Section 101 of title 11, United ment Company Act of 1940, the Investment or transaction referred to in this paragraph; States Code, is amended by inserting after Advisers Act of 1940, the Securities Investor ‘‘(I) a master agreement that provides for paragraph (38) the following new paragraphs: Protection Act of 1970, the Commodity Ex- an agreement or transaction referred to in ‘‘(38A) ‘master netting agreement’— change Act, the Gramm-Leach-Bliley Act, subparagraph (A), (B), (C), (D), (E), (F), (G), ‘‘(A) means an agreement providing for the and the Legal Certainty for Bank Products or (H), together with all supplements to such exercise of rights, including rights of net- Act of 2000;’’; master agreement, without regard to wheth- ting, setoff, liquidation, termination, accel- (2) in section 741(7), by striking paragraph er the master agreement provides for an eration, or close out, under or in connection (7) and inserting the following: agreement or transaction that is not a com- with one or more contracts that are de- ‘‘(7) ‘securities contract’— modity contract under this paragraph, ex- scribed in any one or more of paragraphs (1) ‘‘(A) means— cept that the master agreement shall be con- through (5) of section 561(a), or any security ‘‘(i) a contract for the purchase, sale, or sidered to be a commodity contract under agreement or arrangement or other credit loan of a security, a certificate of deposit, a this paragraph only with respect to each enhancement related to one or more of the mortgage loan or any interest in a mortgage agreement or transaction under the master foregoing, including any guarantee or reim- loan, a group or index of securities, certifi- agreement that is referred to in subpara- bursement obligation related to 1 or more of cates of deposit, or mortgage loans or inter- graph (A), (B), (C), (D), (E), (F), (G), or (H); or the foregoing; and ests therein (including an interest therein or ‘‘(J) any security agreement or arrange- ‘‘(B) if the agreement contains provisions based on the value thereof), or option on any ment or other credit enhancement related to relating to agreements or transactions that of the foregoing, including an option to pur- any agreement or transaction referred to in are not contracts described in paragraphs (1) chase or sell any such security, certificate of this paragraph, including any guarantee or through (5) of section 561(a), shall be deemed deposit, mortgage loan, interest, group or reimbursement obligation by or to a com- to be a master netting agreement only with index, or option, and including any repur- modity broker or financial participant in respect to those agreements or transactions chase or reverse repurchase transaction on connection with any agreement or trans- that are described in any one or more of any such security, certificate of deposit, action referred to in this paragraph, but not paragraphs (1) through (5) of section 561(a); mortgage loan, interest, group or index, or to exceed the damages in connection with ‘‘(38B) ‘master netting agreement partici- option; any such agreement or transaction, meas- pant’ means an entity that, at any time be- ‘‘(ii) any option entered into on a national ured in accordance with section 562;’’. fore the date of the filing of the petition, is securities exchange relating to foreign cur- (b) DEFINITIONS OF FINANCIAL INSTITUTION, a party to an outstanding master netting rencies; FINANCIAL PARTICIPANT, AND FORWARD CON- agreement with the debtor;’’. ‘‘(iii) the guarantee by or to any securities TRACT MERCHANT.—Section 101 of title 11, (d) SWAP AGREEMENTS, SECURITIES CON- clearing agency of a settlement of cash, se- United States Code, is amended— TRACTS, COMMODITY CONTRACTS, FORWARD curities, certificates of deposit, mortgage (1) by striking paragraph (22) and inserting CONTRACTS, REPURCHASE AGREEMENTS, AND loans or interests therein, group or index of the following: MASTER NETTING AGREEMENTS UNDER THE securities, or mortgage loans or interests ‘‘(22) ‘financial institution’ means— AUTOMATIC-STAY.— therein (including any interest therein or ‘‘(A) a Federal reserve bank, or an entity (1) IN GENERAL.—Section 362(b) of title 11, based on the value thereof), or option on any (domestic or foreign) that is a commercial or United States Code, as amended by sections of the foregoing, including an option to pur- savings bank, industrial savings bank, sav- 224, 303, 311, 401, and 718, is amended— chase or sell any such security, certificate of ings and loan association, trust company, (A) in paragraph (6), by inserting ‘‘, deposit, mortgage loan, interest, group or federally-insured credit union, or receiver, pledged to, under the control of,’’ after ‘‘held index, or option; liquidating agent, or conservator for such by’’; ‘‘(iv) any margin loan; entity and, when any such Federal reserve (B) in paragraph (7), by inserting ‘‘, pledged ‘‘(v) any other agreement or transaction bank, receiver, liquidating agent, conser- to, under the control of,’’ after ‘‘held by’’; that is similar to an agreement or trans- vator or entity is acting as agent or custo- (C) by striking paragraph (17) and inserting action referred to in this subparagraph; dian for a customer in connection with a se- the following: ‘‘(vi) any combination of the agreements or curities contract (as defined in section 741) ‘‘(17) under subsection (a), of the setoff by transactions referred to in this subpara- such customer; or a swap participant or financial participant of graph; ‘‘(B) in connection with a securities con- a mutual debt and claim under or in connec- ‘‘(vii) any option to enter into any agree- tract (as defined in section 741) an invest- tion with one or more swap agreements that ment or transaction referred to in this sub- ment company registered under the Invest- constitutes the setoff of a claim against the paragraph; ment Company Act of 1940;’’; debtor for any payment or other transfer of

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00130 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S811 property due from the debtor under or in dividual contract covered thereby, to the ex- (3) by striking ‘‘in connection with any connection with any swap agreement against tent that such master netting agreement swap agreement’’ and inserting ‘‘in connec- any payment due to the debtor from the participant otherwise did not take (or is oth- tion with the termination, liquidation, or ac- swap participant or financial participant erwise not deemed to have taken) such trans- celeration of one or more swap agreements’’; under or in connection with any swap agree- fer for value.’’. and ment or against cash, securities, or other (g) TERMINATION OR ACCELERATION OF SECU- (4) in the second sentence, by striking ‘‘As property held by, pledged to, under the con- RITIES CONTRACTS.—Section 555 of title 11, used’’ and all that follows through ‘‘right,’’ trol of, or due from such swap participant or United States Code, is amended— and inserting ‘‘As used in this section, the financial participant to margin, guarantee, (1) by amending the section heading to term ‘contractual right’ includes a right set secure, or settle any swap agreement;’’; and read as follows: forth in a rule or bylaw of a derivatives (D) by inserting after paragraph (26) the ‘‘§ 555. Contractual right to liquidate, termi- clearing organization (as defined in the Com- following: nate, or accelerate a securities contract’’; modity Exchange Act), a multilateral clear- ‘‘(27) under subsection (a), of the setoff by and ing organization (as defined in the Federal a master netting agreement participant of a (2) in the first sentence, by striking ‘‘liq- Deposit Insurance Corporation Improvement mutual debt and claim under or in connec- uidation’’ and inserting ‘‘liquidation, termi- Act of 1991), a national securities exchange, tion with one or more master netting agree- nation, or acceleration’’. a national securities association, a securities ments or any contract or agreement subject (h) TERMINATION OR ACCELERATION OF COM- clearing agency, a contract market des- to such agreements that constitutes the MODITIES OR FORWARD CONTRACTS.—Section ignated under the Commodity Exchange Act, setoff of a claim against the debtor for any 556 of title 11, United States Code, is amend- a derivatives transaction execution facility payment or other transfer of property due ed— registered under the Commodity Exchange from the debtor under or in connection with (1) by amending the section heading to Act, or a board of trade (as defined in the such agreements or any contract or agree- read as follows: Commodity Exchange Act) or in a resolution ment subject to such agreements against any ‘‘§ 556. Contractual right to liquidate, termi- of the governing board thereof and a right,’’. payment due to the debtor from such master nate, or accelerate a commodities contract (k) LIQUIDATION, TERMINATION, ACCELERA- netting agreement participant under or in or forward contract’’; TION, OR OFFSET UNDER A MASTER NETTING connection with such agreements or any con- AGREEMENT AND ACROSS CONTRACTS.— tract or agreement subject to such agree- (2) in the first sentence, by striking ‘‘liq- (1) IN GENERAL.—Title 11, United States ments or against cash, securities, or other uidation’’ and inserting ‘‘liquidation, termi- Code, is amended by inserting after section property held by, pledged to, under the con- nation, or acceleration’’; and 560 the following: trol of, or due from such master netting (3) in the second sentence, by striking ‘‘As agreement participant to margin, guarantee, used’’ and all that follows through ‘‘right,’’ and inserting ‘‘As used in this section, the ‘‘§ 561. Contractual right to terminate, liq- secure, or settle such agreements or any con- uidate, accelerate, or offset under a master tract or agreement subject to such agree- term ‘contractual right’ includes a right set forth in a rule or bylaw of a derivatives netting agreement and across contracts; ments, to the extent that such participant is proceedings under chapter 15 eligible to exercise such offset rights under clearing organization (as defined in the Com- paragraph (6), (7), or (17) for each individual modity Exchange Act), a multilateral clear- ‘‘(a) Subject to subsection (b), the exercise contract covered by the master netting ing organization (as defined in the Federal of any contractual right, because of a condi- agreement in issue; and’’. Deposit Insurance Corporation Improvement tion of the kind specified in section 365(e)(1), Act of 1991), a national securities exchange, (2) LIMITATION.—Section 362 of title 11, to cause the termination, liquidation, or ac- a national securities association, a securities United States Code, as amended by sections celeration of or to offset or net termination clearing agency, a contract market des- 106, 305, 311, and 441, is amended by adding at values, payment amounts, or other transfer the end the following: ignated under the Commodity Exchange Act, a derivatives transaction execution facility obligations arising under or in connection ‘‘(o) The exercise of rights not subject to with one or more (or the termination, liq- the stay arising under subsection (a) pursu- registered under the Commodity Exchange uidation, or acceleration of one or more)— ant to paragraph (6), (7), (17), or (27) of sub- Act, or a board of trade (as defined in the ‘‘(1) securities contracts, as defined in sec- section (b) shall not be stayed by any order Commodity Exchange Act) or in a resolution of a court or administrative agency in any of the governing board thereof and a right,’’. tion 741(7); proceeding under this title.’’. (i) TERMINATION OR ACCELERATION OF RE- ‘‘(2) commodity contracts, as defined in (e) LIMITATION OF AVOIDANCE POWERS PURCHASE AGREEMENTS.—Section 559 of title section 761(4); UNDER MASTER NETTING AGREEMENT.—Sec- 11, United States Code, is amended— ‘‘(3) forward contracts; tion 546 of title 11, United States Code, is (1) by amending the section heading to ‘‘(4) repurchase agreements; amended— read as follows: ‘‘(5) swap agreements; or (1) in subsection (g) (as added by section ‘‘§ 559. Contractual right to liquidate, termi- ‘‘(6) master netting agreements, 103 of Public Law 101–311)— nate, or accelerate a repurchase agree- shall not be stayed, avoided, or otherwise (A) by striking ‘‘under a swap agreement’’; ment’’; limited by operation of any provision of this (B) by striking ‘‘in connection with a swap (2) in the first sentence, by striking ‘‘liq- title or by any order of a court or adminis- agreement’’ and inserting ‘‘under or in con- uidation’’ and inserting ‘‘liquidation, termi- trative agency in any proceeding under this nection with any swap agreement’’; and nation, or acceleration’’; and title. (C) by inserting ‘‘or financial participant’’ (3) in the third sentence, by striking ‘‘As ‘‘(b)(1) A party may exercise a contractual after ‘‘swap participant’’; and used’’ and all that follows through ‘‘right,’’ right described in subsection (a) to termi- (2) by adding at the end the following: and inserting ‘‘As used in this section, the ‘‘(j) Notwithstanding sections 544, 545, 547, term ‘contractual right’ includes a right set nate, liquidate, or accelerate only to the ex- 548(a)(1)(B), and 548(b) the trustee may not forth in a rule or bylaw of a derivatives tent that such party could exercise such a avoid a transfer made by or to a master net- clearing organization (as defined in the Com- right under section 555, 556, 559, or 560 for ting agreement participant under or in con- modity Exchange Act), a multilateral clear- each individual contract covered by the mas- nection with any master netting agreement ing organization (as defined in the Federal ter netting agreement in issue. or any individual contract covered thereby Deposit Insurance Corporation Improvement that is made before the commencement of ‘‘(2) If a debtor is a commodity broker sub- Act of 1991), a national securities exchange, the case, except under section 548(a)(1)(A) ject to subchapter IV of chapter 7— a national securities association, a securities and except to the extent that the trustee ‘‘(A) a party may not net or offset an obli- clearing agency, a contract market des- could otherwise avoid such a transfer made gation to the debtor arising under, or in con- ignated under the Commodity Exchange Act, under an individual contract covered by such nection with, a commodity contract traded a derivatives transaction execution facility master netting agreement.’’. on or subject to the rules of a contract mar- (f) FRAUDULENT TRANSFERS OF MASTER registered under the Commodity Exchange ket designated under the Commodity Ex- NETTING AGREEMENTS.—Section 548(d)(2) of Act, or a board of trade (as defined in the change Act or a derivatives transaction exe- title 11, United States Code, is amended— Commodity Exchange Act) or in a resolution cution facility registered under the Com- (1) in subparagraph (C), by striking ‘‘and’’ of the governing board thereof and a right,’’. modity Exchange Act against any claim aris- at the end; (j) LIQUIDATION, TERMINATION, OR ACCEL- ing under, or in connection with, other in- (2) in subparagraph (D), by striking the pe- ERATION OF SWAP AGREEMENTS.—Section 560 struments, contracts, or agreements listed in riod and inserting ‘‘; and’’; and of title 11, United States Code, is amended— subsection (a) except to the extent that the (3) by adding at the end the following new (1) by amending the section heading to party has positive net equity in the com- subparagraph: read as follows: modity accounts at the debtor, as calculated ‘‘(E) a master netting agreement partici- ‘‘§ 560. Contractual right to liquidate, termi- under such subchapter; and pant that receives a transfer in connection nate, or accelerate a swap agreement’’; ‘‘(B) another commodity broker may not with a master netting agreement or any in- (2) in the first sentence, by striking ‘‘ter- net or offset an obligation to the debtor aris- dividual contract covered thereby takes for mination of a swap agreement’’ and inserting ing under, or in connection with, a com- value to the extent of such transfer, except ‘‘liquidation, termination, or acceleration of modity contract entered into or held on be- that, with respect to a transfer under any in- one or more swap agreements’’; half of a customer of the debtor and traded

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on or subject to the rules of a contract mar- shall not affect the priority of any unsecured (p) CONFORMING AMENDMENTS.—Title 11, ket designated under the Commodity Ex- claim it may have after the exercise of such United States Code, is amended— change Act or a derivatives transaction exe- rights.’’. (1) in the table of sections for chapter 5— cution facility registered under the Com- (m) STOCKBROKER LIQUIDATIONS.—Title 11, (A) by amending the items relating to sec- modity Exchange Act against any claim aris- United States Code, is amended by inserting tions 555 and 556 to read as follows: ing under, or in connection with, other in- after section 752 the following: ‘‘555. Contractual right to liquidate, termi- struments, contracts, or agreements listed in ‘‘§ 753. Stockbroker liquidation and forward nate, or accelerate a securities subsection (a). contract merchants, commodity brokers, contract. ‘‘(3) No provision of subparagraph (A) or stockbrokers, financial institutions, finan- ‘‘556. Contractual right to liquidate, termi- (B) of paragraph (2) shall prohibit the offset cial participants, securities clearing agen- nate, or accelerate a commod- of claims and obligations that arise under— cies, swap participants, repo participants, ities contract or forward con- ‘‘(A) a cross-margining agreement or simi- and master netting agreement participants tract.’’; lar arrangement that has been approved by ‘‘Notwithstanding any other provision of and the Commodity Futures Trading Commission this title, the exercise of rights by a forward (B) by amending the items relating to sec- or submitted to the Commodity Futures contract merchant, commodity broker, tions 559 and 560 to read as follows: Trading Commission under paragraph (1) or stockbroker, financial institution, financial ‘‘559. Contractual right to liquidate, termi- (2) of section 5c(c) of the Commodity Ex- participant, securities clearing agency, swap change Act and has not been abrogated or participant, repo participant, or master net- nate, or accelerate a repurchase rendered ineffective by the Commodity Fu- ting agreement participant under this title agreement. tures Trading Commission; or shall not affect the priority of any unsecured ‘‘560. Contractual right to liquidate, termi- ‘‘(B) any other netting agreement between claim it may have after the exercise of such nate, or accelerate a swap a clearing organization (as defined in section rights.’’. agreement.’’; 761) and another entity that has been ap- (n) SETOFF.—Section 553 of title 11, United and proved by the Commodity Futures Trading States Code, is amended— (2) in the table of sections for chapter 7— Commission. (1) in subsection (a)(2)(B)(ii), by inserting (A) by inserting after the item relating to ‘‘(c) As used in this section, the term ‘con- before the semicolon the following: ‘‘(except section 766 the following: tractual right’ includes a right set forth in a for a setoff of a kind described in section ‘‘767. Commodity broker liquidation and for- rule or bylaw of a derivatives clearing orga- 362(b)(6), 362(b)(7), 362(b)(17), 362(b)(27), 555, ward contract merchants, com- nization (as defined in the Commodity Ex- 556, 559, 560, or 561)’’; modity brokers, stockbrokers, change Act), a multilateral clearing organi- (2) in subsection (a)(3)(C), by inserting be- financial institutions, financial zation (as defined in the Federal Deposit In- fore the period the following: ‘‘(except for a participants, securities clearing surance Corporation Improvement Act of setoff of a kind described in section 362(b)(6), agencies, swap participants, 1991), a national securities exchange, a na- 362(b)(7), 362(b)(17), 362(b)(27), 555, 556, 559, 560, repo participants, and master tional securities association, a securities or 561)’’; and netting agreement partici- clearing agency, a contract market des- (3) in subsection (b)(1), by striking pants.’’; ‘‘362(b)(14),’’ and inserting ‘‘362(b)(17), ignated under the Commodity Exchange Act, and a derivatives transaction execution facility 362(b)(27), 555, 556, 559, 560, 561,’’. (o) SECURITIES CONTRACTS, COMMODITY CON- (B) by inserting after the item relating to registered under the Commodity Exchange section 752 the following: Act, or a board of trade (as defined in the TRACTS, AND FORWARD CONTRACTS.—Title 11, ‘‘753. Stockbroker liquidation and forward Commodity Exchange Act) or in a resolution United States Code, is amended— contract merchants, com- of the governing board thereof, and a right, (1) in section 362(b)(6), by striking ‘‘finan- modity brokers, stockbrokers, whether or not evidenced in writing, arising cial institutions,’’ each place such term ap- financial institutions, financial under common law, under law merchant, or pears and inserting ‘‘financial institution, fi- participants, securities clearing by reason of normal business practice. nancial participant,’’; ‘‘(d) Any provisions of this title relating to (2) in sections 362(b)(7) and 546(f), by insert- agencies, swap participants, securities contracts, commodity contracts, ing ‘‘or financial participant’’ after ‘‘repo repo participants, and master forward contracts, repurchase agreements, participant’’ each place such term appears; netting agreement partici- swap agreements, or master netting agree- (3) in section 546(e), by inserting ‘‘financial pants.’’. ments shall apply in a case under chapter 15, participant,’’ after ‘‘financial institution,’’; SEC. 908. RECORDKEEPING REQUIREMENTS. so that enforcement of contractual provi- (4) in section 548(d)(2)(B), by inserting ‘‘fi- (a) FDIC-INSURED DEPOSITORY INSTITU- sions of such contracts and agreements in nancial participant,’’ after ‘‘financial insti- TIONS.—Section 11(e)(8) of the Federal De- accordance with their terms will not be tution,’’; posit Insurance Act (12 U.S.C. 1821(e)(8)) is stayed or otherwise limited by operation of (5) in section 548(d)(2)(C), by inserting ‘‘or amended by adding at the end the following any provision of this title or by order of a financial participant’’ after ‘‘repo partici- new subparagraph: court in any case under this title, and to pant’’; ‘‘(H) RECORDKEEPING REQUIREMENTS.—The limit avoidance powers to the same extent as (6) in section 548(d)(2)(D), by inserting ‘‘or Corporation, in consultation with the appro- in a proceeding under chapter 7 or 11 of this financial participant’’ after ‘‘swap partici- priate Federal banking agencies, may pre- title (such enforcement not to be limited pant’’; scribe regulations requiring more detailed based on the presence or absence of assets of (7) in section 555— recordkeeping by any insured depository in- the debtor in the United States).’’. (A) by inserting ‘‘financial participant,’’ stitution with respect to qualified financial after ‘‘financial institution,’’; and (2) CONFORMING AMENDMENT.—The table of contracts (including market valuations) only sections for chapter 5 of title 11, United (B) by striking the second sentence and in- if such insured depository institution is in a States Code, is amended by inserting after serting the following: ‘‘As used in this sec- troubled condition (as such term is defined the item relating to section 560 the fol- tion, the term ‘contractual right’ includes a by the Corporation pursuant to section 32).’’. lowing: right set forth in a rule or bylaw of a deriva- (b) INSURED CREDIT UNIONS.—Section tives clearing organization (as defined in the 207(c)(8) of the Federal Credit Union Act (12 ‘‘561. Contractual right to terminate, liq- Commodity Exchange Act), a multilateral U.S.C. 1787(c)(8)) is amended by adding at the uidate, accelerate, or offset clearing organization (as defined in the Fed- end the following new subparagraph: under a master netting agree- eral Deposit Insurance Corporation Improve- ‘‘(H) RECORDKEEPING REQUIREMENTS.—The ment and across contracts; pro- ment Act of 1991), a national securities ex- Board, in consultation with the appropriate ceedings under chapter 15.’’. change, a national securities association, a Federal banking agencies, may prescribe reg- (l) COMMODITY BROKER LIQUIDATIONS.— securities clearing agency, a contract mar- ulations requiring more detailed record- Title 11, United States Code, is amended by ket designated under the Commodity Ex- keeping by any insured credit union with re- inserting after section 766 the following: change Act, a derivatives transaction execu- spect to qualified financial contracts (includ- ‘‘§ 767. Commodity broker liquidation and for- tion facility registered under the Commodity ing market valuations) only if such insured ward contract merchants, commodity bro- Exchange Act, or a board of trade (as defined credit union is in a troubled condition (as kers, stockbrokers, financial institutions, fi- in the Commodity Exchange Act), or in a such term is defined by the Board pursuant nancial participants, securities clearing resolution of the governing board thereof, to section 212).’’. agencies, swap participants, repo partici- and a right, whether or not in writing, aris- SEC. 909. EXEMPTIONS FROM CONTEMPORA- pants, and master netting agreement par- ing under common law, under law merchant, NEOUS EXECUTION REQUIREMENT. ticipants or by reason of normal business practice.’’; Section 13(e)(2) of the Federal Deposit In- ‘‘Notwithstanding any other provision of (8) in section 556, by inserting ‘‘, financial surance Act (12 U.S.C. 1823(e)(2)) is amended this title, the exercise of rights by a forward participant,’’ after ‘‘commodity broker’’; to read as follows: contract merchant, commodity broker, (9) in section 559, by inserting ‘‘or financial ‘‘(2) EXEMPTIONS FROM CONTEMPORANEOUS stockbroker, financial institution, financial participant’’ after ‘‘repo participant’’ each EXECUTION REQUIREMENT.—An agreement to participant, securities clearing agency, swap place such term appears; and provide for the lawful collateralization of— participant, repo participant, or master net- (10) in section 560, by inserting ‘‘or finan- ‘‘(A) deposits of, or other credit extension ting agreement participant under this title cial participant’’ after ‘‘swap participant’’. by, a Federal, State, or local governmental

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entity, or of any depositor referred to in sec- (b) CLAIMS ARISING FROM REJECTION.—Sec- ‘‘(2) provide for the full payment, in de- tion 11(a)(2), including an agreement to pro- tion 502(g) of title 11, United States Code, is ferred cash payments, of all claims entitled vide collateral in lieu of a surety bond; amended— to priority under section 507, unless— ‘‘(B) bankruptcy estate funds pursuant to (1) by inserting ‘‘(1)’’ after ‘‘(g)’’; and ‘‘(A) the claim is a claim owed to a govern- section 345(b)(2) of title 11, United States (2) by adding at the end the following: mental unit that arises as a result of the Code; ‘‘(2) A claim for damages calculated in ac- sale, transfer, exchange, or other disposition ‘‘(C) extensions of credit, including any cordance with section 562 shall be allowed of any farm asset used in the debtor’s farm- overdraft, from a Federal reserve bank or under subsection (a), (b), or (c), or disallowed ing operation, in which case the claim shall Federal home loan bank; or under subsection (d) or (e), as if such claim be treated as an unsecured claim that is not ‘‘(D) one or more qualified financial con- had arisen before the date of the filing of the entitled to priority under section 507, but the tracts, as defined in section 11(e)(8)(D), petition.’’. debt shall be treated in such manner only if shall not be deemed invalid pursuant to SEC. 911. SIPC STAY. the debtor receives a discharge; or paragraph (1)(B) solely because such agree- Section 5(b)(2) of the Securities Investor ‘‘(B) the holder of a particular claim agrees ment was not executed contemporaneously Protection Act of 1970 (15 U.S.C. 78eee(b)(2)) to a different treatment of that claim;’’. with the acquisition of the collateral or be- is amended by adding at the end the fol- (b) SPECIAL NOTICE PROVISIONS.—Section cause of pledges, delivery, or substitution of lowing new subparagraph: 1231(b) of title 11, United States Code, as so the collateral made in accordance with such ‘‘(C) EXCEPTION FROM STAY.— designated by section 719, is amended by agreement.’’. ‘‘(i) Notwithstanding section 362 of title 11, striking ‘‘a State or local governmental United States Code, neither the filing of an SEC. 910. DAMAGE MEASURE. unit’’ and inserting ‘‘any governmental application under subsection (a)(3) nor any unit’’. (a) IN GENERAL.—Title 11, United States order or decree obtained by SIPC from the Code, is amended— (c) EFFECTIVE DATE; APPLICATION OF court shall operate as a stay of any contrac- AMENDMENTS.—This section and the amend- (1) by inserting after section 561, as added tual rights of a creditor to liquidate, termi- by section 907, the following: ments made by this section shall take effect nate, or accelerate a securities contract, on the date of the enactment of this Act and ‘‘§ 562. Timing of damage measurement in commodity contract, forward contract, re- shall not apply with respect to cases com- connection with swap agreements, securi- purchase agreement, swap agreement, or menced under title 11 of the United States ties contracts, forward contracts, com- master netting agreement, as those terms Code before such date. modity contracts, repurchase agreements, are defined in sections 101, 741, and 761 of SEC. 1004. DEFINITION OF FAMILY FARMER. and master netting agreements title 11, United States Code, to offset or net Section 101(18) of title 11, United States termination values, payment amounts, or ‘‘(a) If the trustee rejects a swap agree- Code, is amended— other transfer obligations arising under or in ment, securities contract (as defined in sec- (1) in subparagraph (A)— connection with one or more of such con- tion 741), forward contract, commodity con- (A) by striking ‘‘$1,500,000’’ and inserting tracts or agreements, or to foreclose on any tract (as defined in section 761), repurchase ‘‘$3,237,000’’; and cash collateral pledged by the debtor, wheth- agreement, or master netting agreement (B) by striking ‘‘80’’ and inserting ‘‘50’’; er or not with respect to one or more of such pursuant to section 365(a), or if a forward and contracts or agreements. contract merchant, stockbroker, financial (2) in subparagraph (B)(ii)— ‘‘(ii) Notwithstanding clause (i), such ap- institution, securities clearing agency, repo (A) by striking ‘‘$1,500,000’’ and inserting plication, order, or decree may operate as a participant, financial participant, master ‘‘$3,237,000’’; and stay of the foreclosure on, or disposition of, netting agreement participant, or swap par- (B) by striking ‘‘80’’ and inserting ‘‘50’’. securities collateral pledged by the debtor, ticipant liquidates, terminates, or acceler- SEC. 1005. ELIMINATION OF REQUIREMENT THAT whether or not with respect to one or more ates such contract or agreement, damages FAMILY FARMER AND SPOUSE RE- of such contracts or agreements, securities shall be measured as of the earlier of— CEIVE OVER 50 PERCENT OF IN- sold by the debtor under a repurchase agree- ‘‘(1) the date of such rejection; or COME FROM FARMING OPERATION ment, or securities lent under a securities IN YEAR PRIOR TO BANKRUPTCY. ‘‘(2) the date or dates of such liquidation, lending agreement. Section 101(18)(A) of title 11, United States termination, or acceleration. ‘‘(iii) As used in this subparagraph, the Code, is amended by striking ‘‘for the tax- ‘‘(b) If there are not any commercially rea- term ‘contractual right’ includes a right set able year preceding the taxable year’’ and in- sonable determinants of value as of any date forth in a rule or bylaw of a national securi- serting the following: referred to in paragraph (1) or (2) of sub- ties exchange, a national securities associa- ‘‘for— section (a), damages shall be measured as of tion, or a securities clearing agency, a right ‘‘(i) the taxable year preceding; or the earliest subsequent date or dates on set forth in a bylaw of a clearing organiza- ‘‘(ii) each of the 2d and 3d taxable years which there are commercially reasonable de- tion or contract market or in a resolution of preceding; terminants of value. the governing board thereof, and a right, the taxable year’’. ‘‘(c) For the purposes of subsection (b), if whether or not in writing, arising under SEC. 1006. PROHIBITION OF RETROACTIVE AS- damages are not measured as of the date or common law, under law merchant, or by rea- SESSMENT OF DISPOSABLE INCOME. dates of rejection, liquidation, termination, son of normal business practice.’’. (a) CONFIRMATION OF PLAN.—Section or acceleration, and the forward contract 1225(b)(1) of title 11, United States Code, is merchant, stockbroker, financial institu- TITLE X—PROTECTION OF FAMILY FARMERS AND FAMILY FISHERMEN amended— tion, securities clearing agency, repo partici- (1) in subparagraph (A) by striking ‘‘or’’ at pant, financial participant, master netting SEC. 1001. PERMANENT REENACTMENT OF CHAP- TER 12. the end; agreement participant, or swap participant (2) in subparagraph (B) by striking the pe- or the trustee objects to the timing of the (a) REENACTMENT.— (1) IN GENERAL.—Chapter 12 of title 11, riod at the end and inserting ‘‘; or’’; and measurement of damages— (3) by adding at the end the following: ‘‘(1) the trustee, in the case of an objection United States Code, as reenacted by section 149 of division C of the Omnibus Consolidated ‘‘(C) the value of the property to be distrib- by a forward contract merchant, stock- uted under the plan in the 3-year period, or broker, financial institution, securities and Emergency Supplemental Appropria- tions Act, 1999 (Public Law 105–277), and as in such longer period as the court may approve clearing agency, repo participant, financial under section 1222(c), beginning on the date participant, master netting agreement par- effect on June 30, 2005, is hereby reenacted. (2) EFFECTIVE DATE OF REENACTMENT.— that the first distribution is due under the ticipant, or swap participant; or plan is not less than the debtor’s projected ‘‘(2) the forward contract merchant, stock- Paragraph (1) shall take effect on July 1, 2005. disposable income for such period.’’. broker, financial institution, securities (b) MODIFICATION OF PLAN.—Section 1229 of clearing agency, repo participant, financial (b) AMENDMENTS—Chapter 12 of title 11, United States Code, as reenacted by sub- title 11, United States Code, is amended by participant, master netting agreement par- adding at the end the following: ticipant, or swap participant, in the case of section (a), is amended by this Act. (c) CONFORMING AMENDMENT.—Section 302 ‘‘(d) A plan may not be modified under this an objection by the trustee, of the Bankruptcy Judges, United States section— has the burden of proving that there were no Trustees, and Family Farmer Bankruptcy ‘‘(1) to increase the amount of any pay- commercially reasonable determinants of Act of 1986 (28 U.S.C. 581 note) is amended by ment due before the plan as modified be- value as of such date or dates.’’; and striking subsection (f). comes the plan; (2) in the table of sections for chapter 5, by SEC. 1002. DEBT LIMIT INCREASE. ‘‘(2) by anyone except the debtor, based on inserting after the item relating to section Section 104(b) of title 11, United States an increase in the debtor’s disposable in- 561 (as added by section 907) the following Code, as amended by section 226, is amended come, to increase the amount of payments to new item: by inserting ‘‘101(18),’’ after ‘‘101(3),’’ each unsecured creditors required for a particular ‘‘562. Timing of damage measure in connec- place it appears. month so that the aggregate of such pay- tion with swap agreements, se- SEC. 1003. CERTAIN CLAIMS OWED TO GOVERN- ments exceeds the debtor’s disposable in- curities contracts, forward con- MENTAL UNITS. come for such month; or tracts, commodity contracts, (a) CONTENTS OF PLAN.—Section 1222(a)(2) ‘‘(3) in the last year of the plan by anyone repurchase agreements, or mas- of title 11, United States Code, as amended except the debtor, to require payments that ter netting agreements.’’. by section 213, is amended to read as follows: would leave the debtor with insufficient

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FAMILY FISHERMEN. commercial fishing operation (including a appropriate newspapers, that if patient (a) DEFINITIONS.—Section 101 of title 11, commercial fishing vessel)’’. records are not claimed by the patient or an United States Code, is amended— (d) CLERICAL AMENDMENT.—In the table of insurance provider (if applicable law permits (1) by inserting after paragraph (7) the fol- chapters for title 11, United States Code, the the insurance provider to make that claim) lowing: item relating to chapter 12, is amended to by the date that is 365 days after the date of ‘‘(7A) ‘commercial fishing operation’ read as follows: that notification, the trustee will destroy means— ‘‘12. Adjustments of Debts of a Family the patient records; and ‘‘(A) the catching or harvesting of fish, Farmer or Family Fisherman with ‘‘(B) during the first 180 days of the 365-day shrimp, lobsters, urchins, seaweed, shellfish, Regular Annual Income ...... 1201’’. period described in subparagraph (A), or other aquatic species or products of such (e) APPLICABILITY.—Nothing in this section promptly attempt to notify directly each pa- species; or shall change, affect, or amend the Fishery tient that is the subject of the patient ‘‘(B) for purposes of section 109 and chapter Conservation and Management Act of 1976 (16 records and appropriate insurance carrier 12, aquaculture activities consisting of rais- U.S.C. 1801 et seq.). concerning the patient records by mailing to ing for market any species or product de- the most recent known address of that pa- TITLE XI—HEALTH CARE AND EMPLOYEE tient, or a family member or contact person scribed in subparagraph (A); BENEFITS ‘‘(7B) ‘commercial fishing vessel’ means a for that patient, and to the appropriate in- SEC. 1101. DEFINITIONS. vessel used by a family fisherman to carry surance carrier an appropriate notice regard- (a) HEALTH CARE BUSINESS DEFINED.—Sec- out a commercial fishing operation;’’; and ing the claiming or disposing of patient tion 101 of title 11, United States Code, as (2) by inserting after paragraph (19) the fol- records. amended by section 306, is amended— lowing: ‘‘(2) If, after providing the notification (1) by redesignating paragraph (27A) as ‘‘(19A) ‘family fisherman’ means— under paragraph (1), patient records are not paragraph (27B); and ‘‘(A) an individual or individual and spouse claimed during the 365-day period described (2) by inserting after paragraph (27) the fol- engaged in a commercial fishing operation— under that paragraph, the trustee shall mail, lowing: ‘‘(i) whose aggregate debts do not exceed by certified mail, at the end of such 365-day ‘‘(27A) ‘health care business’— $1,500,000 and not less than 80 percent of period a written request to each appropriate ‘‘(A) means any public or private entity whose aggregate noncontingent, liquidated Federal agency to request permission from (without regard to whether that entity is or- debts (excluding a debt for the principal resi- that agency to deposit the patient records ganized for profit or not for profit) that is dence of such individual or such individual with that agency, except that no Federal primarily engaged in offering to the general and spouse, unless such debt arises out of a agency is required to accept patient records public facilities and services for— commercial fishing operation), on the date under this paragraph. ‘‘(i) the diagnosis or treatment of injury, the case is filed, arise out of a commercial ‘‘(3) If, following the 365-day period de- deformity, or disease; and fishing operation owned or operated by such scribed in paragraph (2) and after providing ‘‘(ii) surgical, drug treatment, psychiatric, individual or such individual and spouse; and the notification under paragraph (1), patient or obstetric care; and ‘‘(ii) who receive from such commercial records are not claimed by a patient or in- ‘‘(B) includes— fishing operation more than 50 percent of surance provider, or request is not granted ‘‘(i) any— such individual’s or such individual’s and by a Federal agency to deposit such records ‘‘(I) general or specialized hospital; spouse’s gross income for the taxable year with that agency, the trustee shall destroy ‘‘(II) ancillary ambulatory, emergency, or preceding the taxable year in which the case those records by— surgical treatment facility; concerning such individual or such indi- ‘‘(A) if the records are written, shredding ‘‘(III) hospice; vidual and spouse was filed; or or burning the records; or ‘‘(IV) home health agency; and ‘‘(B) a corporation or partnership— ‘‘(B) if the records are magnetic, optical, or ‘‘(V) other health care institution that is ‘‘(i) in which more than 50 percent of the other electronic records, by otherwise de- similar to an entity referred to in subclause outstanding stock or equity is held by— stroying those records so that those records (I), (II), (III), or (IV); and ‘‘(I) 1 family that conducts the commercial cannot be retrieved.’’. ‘‘(ii) any long-term care facility, including fishing operation; or (b) CLERICAL AMENDMENT.—The table of any— ‘‘(II) 1 family and the relatives of the mem- sections for subchapter III of chapter 3 of ‘‘(I) skilled nursing facility; bers of such family, and such family or such title 11, United States Code, is amended by ‘‘(II) intermediate care facility; relatives conduct the commercial fishing op- adding at the end the following: ‘‘(III) assisted living facility; eration; and ‘‘351. Disposal of patient records.’’. ‘‘(IV) home for the aged; ‘‘(ii)(I) more than 80 percent of the value of SEC. 1103. ADMINISTRATIVE EXPENSE CLAIM FOR ‘‘(V) domiciliary care facility; and its assets consists of assets related to the COSTS OF CLOSING A HEALTH CARE ‘‘(VI) health care institution that is re- commercial fishing operation; BUSINESS AND OTHER ADMINISTRA- lated to a facility referred to in subclause ‘‘(II) its aggregate debts do not exceed TIVE EXPENSES. (I), (II), (III), (IV), or (V), if that institution $1,500,000 and not less than 80 percent of its Section 503(b) of title 11, United States is primarily engaged in offering room, board, aggregate noncontingent, liquidated debts Code, as amended by section 445, is amended laundry, or personal assistance with activi- (excluding a debt for 1 dwelling which is by adding at the end the following: ties of daily living and incidentals to activi- owned by such corporation or partnership ‘‘(8) the actual, necessary costs and ex- ties of daily living;’’. and which a shareholder or partner main- penses of closing a health care business in- (b) PATIENT AND PATIENT RECORDS DE- tains as a principal residence, unless such curred by a trustee or by a Federal agency FINED.—Section 101 of title 11, United States debt arises out of a commercial fishing oper- (as defined in section 551(1) of title 5) or a de- Code, is amended by inserting after para- ation), on the date the case is filed, arise out partment or agency of a State or political graph (40) the following: of a commercial fishing operation owned or subdivision thereof, including any cost or ex- ‘‘(40A) ‘patient’ means any individual who operated by such corporation or such part- pense incurred— obtains or receives services from a health nership; and ‘‘(A) in disposing of patient records in ac- care business; ‘‘(III) if such corporation issues stock, such cordance with section 351; or ‘‘(40B) ‘patient records’ means any written stock is not publicly traded; ‘‘(B) in connection with transferring pa- document relating to a patient or a record ‘‘(19B) ‘family fisherman with regular an- tients from the health care business that is recorded in a magnetic, optical, or other nual income’ means a family fisherman in the process of being closed to another form of electronic medium;’’. whose annual income is sufficiently stable health care business; and’’. (c) RULE OF CONSTRUCTION.—The amend- and regular to enable such family fisherman SEC. 1104. APPOINTMENT OF OMBUDSMAN TO ments made by subsection (a) of this section to make payments under a plan under chap- ACT AS PATIENT ADVOCATE. shall not affect the interpretation of section ter 12 of this title;’’. (a) OMBUDSMAN TO ACT AS PATIENT ADVO- 109(b) of title 11, United States Code. CATE.— (b) WHO MAY BEADEBTOR.—Section 109(f) of title 11, United States Code, is amended by SEC. 1102. DISPOSAL OF PATIENT RECORDS. (1) APPOINTMENT OF OMBUDSMAN.—Title 11, inserting ‘‘or family fisherman’’ after ‘‘fam- (a) IN GENERAL.—Subchapter III of chapter United States Code, as amended by section ily farmer’’. 3 of title 11, United States Code, is amended 232, is amended by inserting after section 332 by adding at the end the following: the following: (c) CHAPTER 12.—Chapter 12 of title 11, United States Code, is amended— ‘‘§ 351. Disposal of patient records ‘‘§ 333. Appointment of patient care ombuds- (1) in the chapter heading, by inserting ‘‘If a health care business commences a man ‘‘OR FISHERMAN’’ after ‘‘FAMILY FARM- case under chapter 7, 9, or 11, and the trustee ‘‘(a)(1) If the debtor in a case under chapter ER’’; does not have a sufficient amount of funds to 7, 9, or 11 is a health care business, the court (2) in section 1203, by inserting ‘‘or com- pay for the storage of patient records in the shall order, not later than 30 days after the mercial fishing operation’’ after ‘‘farm’’; and manner required under applicable Federal or commencement of the case, the appointment (3) in section 1206, by striking ‘‘if the prop- State law, the following requirements shall of an ombudsman to monitor the quality of erty is farmland or farm equipment’’ and in- apply: patient care and to represent the interests of

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PENALTY FOR PERSONS WHO NEG- of an ombudsman under paragraph (1), the ‘‘(B) provides the patient with services LIGENTLY OR FRAUDULENTLY PRE- United States trustee shall appoint 1 disin- that are substantially similar to those pro- PARE BANKRUPTCY PETITIONS. terested person (other than the United vided by the health care business that is in Section 110(j)(4) of title 11, United States States trustee) to serve as such ombudsman. the process of being closed; and Code, as so redesignated by section 221, is ‘‘(B) If the debtor is a health care business ‘‘(C) maintains a reasonable quality of amended by striking ‘‘attorney’s’’ and in- that provides long-term care, then the care.’’. serting ‘‘attorneys’’’. United States trustee may appoint the State (b) CONFORMING AMENDMENT.—Section SEC. 1206. LIMITATION ON COMPENSATION OF Long-Term Care Ombudsman appointed 1106(a)(1) of title 11, United States Code, as PROFESSIONAL PERSONS. under the Older Americans Act of 1965 for amended by section 446, is amended by strik- Section 328(a) of title 11, United States the State in which the case is pending to ing ‘‘and (11)’’ and inserting ‘‘(11), and (12)’’. Code, is amended by inserting ‘‘on a fixed or serve as the ombudsman required by para- SEC. 1106. EXCLUSION FROM PROGRAM PARTICI- percentage fee basis,’’ after ‘‘hourly basis,’’. graph (1). PATION NOT SUBJECT TO AUTO- SEC. 1207. EFFECT OF CONVERSION. ‘‘(C) If the United States trustee does not MATIC STAY. Section 348(f)(2) of title 11, United States Section 362(b) of title 11, United States appoint a State Long-Term Care Ombudsman Code, is amended by inserting ‘‘of the es- Code, is amended by inserting after para- under subparagraph (B), the court shall no- tate’’ after ‘‘property’’ the first place it ap- graph (27), as amended by sections 224, 303, tify the State Long-Term Care Ombudsman pears. appointed under the Older Americans Act of 311, 401, 718, and 907, the following: ‘‘(28) under subsection (a), of the exclusion SEC. 1208. ALLOWANCE OF ADMINISTRATIVE EX- 1965 for the State in which the case is pend- PENSES. by the Secretary of Health and Human Serv- ing, of the name and address of the person Section 503(b)(4) of title 11, United States ices of the debtor from participation in the who is appointed under subparagraph (A). Code, is amended by inserting ‘‘subparagraph medicare program or any other Federal ‘‘(b) An ombudsman appointed under sub- (A), (B), (C), (D), or (E) of’’ before ‘‘paragraph health care program (as defined in section section (a) shall— (3)’’. ‘‘(1) monitor the quality of patient care 1128B(f) of the Social Security Act pursuant SEC. 1209. EXCEPTIONS TO DISCHARGE. provided to patients of the debtor, to the ex- to title XI or XVIII of such Act).’’. Section 523 of title 11, United States Code, tent necessary under the circumstances, in- TITLE XII—TECHNICAL AMENDMENTS as amended by sections 215 and 314, is amend- cluding interviewing patients and physi- SEC. 1201. DEFINITIONS. cians; ed— Section 101 of title 11, United States Code, (1) by transferring paragraph (15), as added ‘‘(2) not later than 60 days after the date of as amended by this Act, is further amended— appointment, and not less frequently than at by section 304(e) of Public Law 103–394 (108 (1) by striking ‘‘In this title—’’ and insert- Stat. 4133), so as to insert such paragraph 60-day intervals thereafter, report to the ing ‘‘In this title the following definitions court after notice to the parties in interest, after subsection (a)(14A); shall apply:’’; (2) in subsection (a)(9), by striking ‘‘motor at a hearing or in writing, regarding the (2) in each paragraph (other than para- quality of patient care provided to patients vehicle’’ and inserting ‘‘motor vehicle, ves- graph (54A)), by inserting ‘‘The term’’ after sel, or aircraft’’; and of the debtor; and the paragraph designation; ‘‘(3) if such ombudsman determines that (3) in subsection (e), by striking ‘‘a in- (3) in paragraph (35)(B), by striking ‘‘para- sured’’ and inserting ‘‘an insured’’. the quality of patient care provided to pa- graphs (21B) and (33)(A)’’ and inserting tients of the debtor is declining significantly ‘‘paragraphs (23) and (35)’’; SEC. 1210. EFFECT OF DISCHARGE. or is otherwise being materially com- (4) in each of paragraphs (35A), (38), and Section 524(a)(3) of title 11, United States promised, file with the court a motion or a (54A), by striking ‘‘; and’’ at the end and in- Code, is amended by striking ‘‘section 523’’ written report, with notice to the parties in serting a period; and all that follows through ‘‘or that’’ and interest immediately upon making such de- (5) in paragraph (51B)— inserting ‘‘section 523, 1228(a)(1), or 1328(a)(1), termination. (A) by inserting ‘‘who is not a family farm- or that’’. ‘‘(c)(1) An ombudsman appointed under er’’ after ‘‘debtor’’ the first place it appears; SEC. 1211. PROTECTION AGAINST DISCRIMINA- subsection (a) shall maintain any informa- and TORY TREATMENT. tion obtained by such ombudsman under this (B) by striking ‘‘thereto having aggregate’’ Section 525(c) of title 11, United States section that relates to patients (including in- and all that follows through the end of the Code, is amended— formation relating to patient records) as paragraph and inserting a semicolon; (1) in paragraph (1), by inserting ‘‘student’’ confidential information. Such ombudsman (6) by striking paragraph (54) and inserting before ‘‘grant’’ the second place it appears; may not review confidential patient records the following: and unless the court approves such review in ad- ‘‘(54) The term ‘transfer’ means— (2) in paragraph (2), by striking ‘‘the pro- vance and imposes restrictions on such om- ‘‘(A) the creation of a lien; gram operated under part B, D, or E of’’ and budsman to protect the confidentiality of ‘‘(B) the retention of title as a security in- inserting ‘‘any program operated under’’. such records. terest; SEC. 1212. PROPERTY OF THE ESTATE. ‘‘(2) An ombudsman appointed under sub- ‘‘(C) the foreclosure of a debtor’s equity of Section 541(b)(4)(B)(ii) of title 11, United section (a)(2)(B) shall have access to patient redemption; or States Code, is amended by inserting ‘‘365 records consistent with authority of such ‘‘(D) each mode, direct or indirect, abso- or’’ before ‘‘542’’. ombudsman under the Older Americans Act lute or conditional, voluntary or involun- SEC. 1213. PREFERENCES. of 1965 and under non-Federal laws governing tary, of disposing of or parting with— (a) IN GENERAL.—Section 547 of title 11, the State Long-Term Care Ombudsman pro- ‘‘(i) property; or United States Code, as amended by section gram.’’. ‘‘(ii) an interest in property;’’; 201, is amended— (2) CLERICAL AMENDMENT.—The table of (7) in paragraph (54A)— (1) in subsection (b), by striking ‘‘sub- sections for subchapter II of chapter 3 of (A) by striking ‘‘the term’’ and inserting section (c)’’ and inserting ‘‘subsections (c) title 11, United States Code, as amended by ‘‘The term’’; and and (i)’’; and section 232, is amended by adding at the end (B) by indenting the left margin of para- (2) by adding at the end the following: the following: graph (54A) 2 ems to the right; and ‘‘(i) If the trustee avoids under subsection ‘‘333. Appointment of ombudsman.’’. (8) in each of paragraphs (1) through (35), in (b) a transfer made between 90 days and 1 (b) COMPENSATION OF OMBUDSMAN.—Section each of paragraphs (36), (37), (38A), (38B) and year before the date of the filing of the peti- 330(a)(1) of title 11, United States Code, is (39A), and in each of paragraphs (40) through tion, by the debtor to an entity that is not amended— (55), by striking the semicolon at the end and an insider for the benefit of a creditor that is (1) in the matter preceding subparagraph inserting a period. an insider, such transfer shall be considered (A), by inserting ‘‘an ombudsman appointed SEC. 1202. ADJUSTMENT OF DOLLAR AMOUNTS. to be avoided under this section only with under section 333, or’’ before ‘‘a professional Section 104 of title 11, United States Code, respect to the creditor that is an insider.’’. person’’; and is amended by inserting ‘‘522(f)(3),’’ after (b) APPLICABILITY.—The amendments made (2) in subparagraph (A), by inserting ‘‘om- ‘‘522(d),’’ each place it appears. by this section shall apply to any case that budsman,’’ before ‘‘professional person’’. SEC. 1203. EXTENSION OF TIME. is pending or commenced on or after the date SEC. 1105. DEBTOR IN POSSESSION; DUTY OF Section 108(c)(2) of title 11, United States of enactment of this Act. TRUSTEE TO TRANSFER PATIENTS. Code, is amended by striking ‘‘922’’ and all SEC. 1214. POSTPETITION TRANSACTIONS. (a) IN GENERAL.—Section 704(a) of title 11, that follows through ‘‘or’’, and inserting Section 549(c) of title 11, United States United States Code, as amended by sections ‘‘922, 1201, or’’. Code, is amended— 102, 219, and 446, is amended by adding at the SEC. 1204. TECHNICAL AMENDMENTS. (1) by inserting ‘‘an interest in’’ after end the following: Title 11, United States Code, is amended— ‘‘transfer of’’ each place it appears;

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DISPOSITION OF PROPERTY OF THE States Code, without considering whether (B) CENTRAL DISTRICT OF CALIFORNIA.—The ESTATE. this section would substantially affect the 1st, 2d, and 3d vacancies in the office of Section 726(b) of title 11, United States rights of a party in interest who first ac- bankruptcy judge in the central district of Code, is amended by striking ‘‘1009,’’. quired rights with respect to the debtor after California— the date of the filing of the petition. The SEC. 1216. GENERAL PROVISIONS. (i) occurring 5 years or more after the re- parties who may appear and be heard in a spective 1st, 2d, and 3d appointment dates of Section 901(a) of title 11, United States proceeding under this section include the at- the bankruptcy judges appointed under para- Code, is amended by inserting ‘‘1123(d),’’ torney general of the State in which the graph (1)(B); and after ‘‘1123(b),’’. debtor is incorporated, was formed, or does (ii) resulting from the death, retirement, SEC. 1217. ABANDONMENT OF RAILROAD LINE. business. resignation, or removal of a bankruptcy Section 1170(e)(1) of title 11, United States (e) RULE OF CONSTRUCTION.—Nothing in judge; Code, is amended by striking ‘‘section 11347’’ this section shall be construed to require the shall not be filled. and inserting ‘‘section 11326(a)’’. court in which a case under chapter 11 of (C) DISTRICT OF DELAWARE.—The 1st, 2d, 3d, SEC. 1218. CONTENTS OF PLAN. title 11, United States Code, is pending to re- and 4th vacancies in the office of bankruptcy Section 1172(c)(1) of title 11, United States mand or refer any proceeding, issue, or con- judge in the district of Delaware— Code, is amended by striking ‘‘section 11347’’ troversy to any other court or to require the (i) occurring 5 years or more after the re- and inserting ‘‘section 11326(a)’’. approval of any other court for the transfer spective 1st, 2d, 3d, and 4th appointment of property. SEC. 1219. BANKRUPTCY CASES AND PRO- dates of the bankruptcy judges appointed SEC. 1222. PROTECTION OF VALID PURCHASE CEEDINGS. under paragraph (1)(F); and MONEY SECURITY INTERESTS. Section 1334(d) of title 28, United States (ii) resulting from the death, retirement, Section 547(c)(3)(B) of title 11, United resignation, or removal of a bankruptcy Code, is amended— States Code, is amended by striking ‘‘20’’ and (1) by striking ‘‘made under this sub- judge; inserting ‘‘30’’. shall not be filled. section’’ and inserting ‘‘made under sub- SEC. 1223. BANKRUPTCY JUDGESHIPS. section (c)’’; and (D) SOUTHERN DISTRICT OF FLORIDA.—The (a) SHORT TITLE.—This section may be 1st and 2d vacancies in the office of bank- (2) by striking ‘‘This subsection’’ and in- cited as the ‘‘Bankruptcy Judgeship Act of serting ‘‘Subsection (c) and this subsection’’. ruptcy judge in the southern district of Flor- 2005’’. ida— SEC. 1220. KNOWING DISREGARD OF BANK- (b) TEMPORARY JUDGESHIPS.— (i) occurring 5 years or more after the re- RUPTCY LAW OR RULE. (1) APPOINTMENTS.—The following bank- spective 1st and 2d appointment dates of the Section 156(a) of title 18, United States ruptcy judges shall be appointed in the man- bankruptcy judges appointed under para- Code, is amended— ner prescribed in section 152(a)(1) of title 28, graph (1)(D); and (1) in the first undesignated paragraph— United States Code, for the appointment of (ii) resulting from the death, retirement, (A) by inserting ‘‘(1) the term’’ before bankruptcy judges provided for in section resignation, or removal of a bankruptcy ‘‘ ‘bankruptcy’’; and 152(a)(2) of such title: judge; (B) by striking the period at the end and (A) One additional bankruptcy judge for shall not be filled. inserting ‘‘; and’’; and the eastern district of California. (E) DISTRICT OF MARYLAND.—The 1st, 2d, (2) in the second undesignated paragraph— (B) Three additional bankruptcy judges for and 3d vacancies in the office of bankruptcy (A) by inserting ‘‘(2) the term’’ before the central district of California. judge in the district of Maryland— ‘‘ ‘document’’; and (C) Four additional bankruptcy judges for (i) occurring 5 years or more after the re- (B) by striking ‘‘this title’’ and inserting the district of Delaware. spective 1st, 2d, and 3d appointment dates of ‘‘title 11’’. (D) Two additional bankruptcy judges for the bankruptcy judges appointed under para- SEC. 1221. TRANSFERS MADE BY NONPROFIT the southern district of Florida. graph (1)(F); and CHARITABLE CORPORATIONS. (E) One additional bankruptcy judge for (ii) resulting from the death, retirement, (a) SALE OF PROPERTY OF ESTATE.—Section the southern district of Georgia. resignation, or removal of a bankruptcy 363(d) of title 11, United States Code, is (F) Three additional bankruptcy judges for judge; amended by striking ‘‘only’’ and all that fol- the district of Maryland. shall not be filled. lows through the end of the subsection and (G) One additional bankruptcy judge for (c) EXTENSIONS.— inserting ‘‘only— the eastern district of Michigan. (1) IN GENERAL.—The temporary office of ‘‘(1) in accordance with applicable non- (H) One additional bankruptcy judge for bankruptcy judges authorized for the north- bankruptcy law that governs the transfer of the southern district of Mississippi. ern district of Alabama, the district of Dela- property by a corporation or trust that is (I) One additional bankruptcy judge for the ware, the district of Puerto Rico, and the not a moneyed, business, or commercial cor- district of New Jersey. eastern district of Tennessee under para- poration or trust; and (J) One additional bankruptcy judge for graphs (1), (3), (7), and (9) of section 3(a) of ‘‘(2) to the extent not inconsistent with the eastern district of New York. the Bankruptcy Judgeship Act of 1992 (28 any relief granted under subsection (c), (d), (K) One additional bankruptcy judge for U.S.C. 152 note) are extended until the first (e), or (f) of section 362.’’. the northern district of New York. vacancy occurring in the office of a bank- (b) CONFIRMATION OF PLAN OF REORGANIZA- (L) One additional bankruptcy judge for ruptcy judge in the applicable district re- TION.—Section 1129(a) of title 11, United the southern district of New York. sulting from the death, retirement, resigna- States Code, as amended by sections 213 and (M) One additional bankruptcy judge for tion, or removal of a bankruptcy judge and 321, is amended by adding at the end the fol- the eastern district of North Carolina. occurring 5 years after the date of the enact- lowing: (N) One additional bankruptcy judge for ment of this Act. ‘‘(16) All transfers of property of the plan the eastern district of Pennsylvania. (2) APPLICABILITY OF OTHER PROVISIONS.— shall be made in accordance with any appli- (O) One additional bankruptcy judge for All other provisions of section 3 of the Bank- cable provisions of nonbankruptcy law that the middle district of Pennsylvania. ruptcy Judgeship Act of 1992 (28 U.S.C. 152 govern the transfer of property by a corpora- (P) One additional bankruptcy judge for note) remain applicable to the temporary of- tion or trust that is not a moneyed, business, the district of Puerto Rico. fice of bankruptcy judges referred to in this or commercial corporation or trust.’’. (Q) One additional bankruptcy judge for subsection. (c) TRANSFER OF PROPERTY.—Section 541 of the western district of Tennessee. (d) TECHNICAL AMENDMENTS.—Section title 11, United States Code, as amended by (R) One additional bankruptcy judge for 152(a) of title 28, United States Code, is section 225, is amended by adding at the end the eastern district of Virginia. amended— the following: (S) One additional bankruptcy judge for (1) in paragraph (1), by striking the first ‘‘(f) Notwithstanding any other provision the district of South Carolina. sentence and inserting the following: ‘‘Each of this title, property that is held by a debt- (T) One additional bankruptcy judge for bankruptcy judge to be appointed for a judi- or that is a corporation described in section the district of Nevada. cial district, as provided in paragraph (2), 501(c)(3) of the Internal Revenue Code of 1986 (2) VACANCIES.— shall be appointed by the court of appeals of and exempt from tax under section 501(a) of (A) DISTRICTS WITH SINGLE APPOINTMENTS.— the United States for the circuit in which such Code may be transferred to an entity Except as provided in subparagraphs (B), (C), such district is located.’’; and that is not such a corporation, but only (D), and (E), the first vacancy occurring in (2) in paragraph (2)— under the same conditions as would apply if the office of bankruptcy judge in each of the (A) in the item relating to the middle dis- the debtor had not filed a case under this judicial districts set forth in paragraph (1)— trict of Georgia, by striking ‘‘2’’ and insert- title.’’. (i) occurring 5 years or more after the ap- ing ‘‘3’’; and (d) APPLICABILITY.—The amendments made pointment date of the bankruptcy judge ap- (B) in the collective item relating to the by this section shall apply to a case pending pointed under paragraph (1) to such office; middle and southern districts of Georgia, by under title 11, United States Code, on the and striking ‘‘Middle and Southern ...... 1’’.

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(e) EFFECTIVE DATE.—The amendments riod expires after the commencement of the ‘‘(8) subject to subchapter III of chapter 5, made by this section shall take effect on the case. any interest of the debtor in property where date of the enactment of this Act. ‘‘(2) If a seller of goods fails to provide no- the debtor pledged or sold tangible personal SEC. 1224. COMPENSATING TRUSTEES. tice in the manner described in paragraph property (other than securities or written or Section 1326 of title 11, United States Code, (1), the seller still may assert the rights con- printed evidences of indebtedness or title) as is amended— tained in section 503(b)(9).’’. collateral for a loan or advance of money (1) in subsection (b)— (b) ADMINISTRATIVE EXPENSES.—Section given by a person licensed under law to make (A) in paragraph (1), by striking ‘‘and’’; 503(b) of title 11, United States Code, as such loans or advances, where— (B) in paragraph (2), by striking the period amended by sections 445 and 1103, is amended ‘‘(A) the tangible personal property is in at the end and inserting ‘‘; and’’; and by adding at the end the following: the possession of the pledgee or transferee; (C) by adding at the end the following: ‘‘(9) the value of any goods received by the ‘‘(B) the debtor has no obligation to repay ‘‘(3) if a chapter 7 trustee has been allowed debtor within 20 days before the date of com- the money, redeem the collateral, or buy compensation due to the conversion or dis- mencement of a case under this title in back the property at a stipulated price; and missal of the debtor’s prior case pursuant to which the goods have been sold to the debtor ‘‘(C) neither the debtor nor the trustee section 707(b), and some portion of that com- in the ordinary course of such debtor’s busi- have exercised any right to redeem provided pensation remains unpaid in a case con- ness.’’. under the contract or State law, in a timely verted to this chapter or in the case dis- SEC. 1228. PROVIDING REQUESTED TAX DOCU- manner as provided under State law and sec- missed under section 707(b) and refiled under MENTS TO THE COURT. tion 108(b); or’’. this chapter, the amount of any such unpaid (a) CHAPTER 7 CASES.—The court shall not SEC. 1231. TRUSTEES. compensation, which shall be paid monthly— grant a discharge in the case of an individual (a) SUSPENSION AND TERMINATION OF PANEL ‘‘(A) by prorating such amount over the re- who is a debtor in a case under chapter 7 of TRUSTEES AND STANDING TRUSTEES.—Section maining duration of the plan; and title 11, United States Code, unless requested 586(d) of title 28, United States Code, is ‘‘(B) by monthly payments not to exceed tax documents have been provided to the amended— the greater of— court. (1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and ‘‘(i) $25; or (b) CHAPTER 11 AND CHAPTER 13 CASES.— (2) by adding at the end the following: ‘‘(ii) the amount payable to unsecured non- The court shall not confirm a plan of reorga- ‘‘(2) A trustee whose appointment under priority creditors, as provided by the plan, nization in the case of an individual under subsection (a)(1) or under subsection (b) is multiplied by 5 percent, and the result di- chapter 11 or 13 of title 11, United States terminated or who ceases to be assigned to vided by the number of months in the plan.’’; Code, unless requested tax documents have cases filed under title 11, United States Code, and been filed with the court. may obtain judicial review of the final agen- (2) by adding at the end the following: (c) DOCUMENT RETENTION.—The court shall cy decision by commencing an action in the ‘‘(d) Notwithstanding any other provision destroy documents submitted in support of a district court of the United States for the of this title— bankruptcy claim not sooner than 3 years district for which the panel to which the ‘‘(1) compensation referred to in subsection after the date of the conclusion of a case trustee is appointed under subsection (a)(1), (b)(3) is payable and may be collected by the filed by an individual under chapter 7, 11, or or in the district court of the United States trustee under that paragraph, even if such 13 of title 11, United States Code. In the for the district in which the trustee is ap- amount has been discharged in a prior case event of a pending audit or enforcement ac- pointed under subsection (b) resides, after under this title; and tion, the court may extend the time for de- first exhausting all available administrative ‘‘(2) such compensation is payable in a case struction of such requested tax documents. remedies, which if the trustee so elects, shall under this chapter only to the extent per- SEC. 1229. ENCOURAGING CREDITWORTHINESS. also include an administrative hearing on mitted by subsection (b)(3).’’. (a) SENSE OF THE CONGRESS.—It is the sense the record. Unless the trustee elects to have SEC. 1225. AMENDMENT TO SECTION 362 OF of the Congress that— an administrative hearing on the record, the TITLE 11, UNITED STATES CODE. (1) certain lenders may sometimes offer trustee shall be deemed to have exhausted Section 362(b)(18) of title 11, United States credit to consumers indiscriminately, with- all administrative remedies for purposes of Code, is amended to read as follows: out taking steps to ensure that consumers this paragraph if the agency fails to make a ‘‘(18) under subsection (a) of the creation are capable of repaying the resulting debt, final agency decision within 90 days after the or perfection of a statutory lien for an ad va- and in a manner which may encourage cer- trustee requests administrative remedies. lorem property tax, or a special tax or spe- tain consumers to accumulate additional The Attorney General shall prescribe proce- cial assessment on real property whether or debt; and dures to implement this paragraph. The deci- not ad valorem, imposed by a governmental (2) resulting consumer debt may increas- sion of the agency shall be affirmed by the unit, if such tax or assessment comes due ingly be a major contributing factor to con- district court unless it is unreasonable and after the date of the filing of the petition;’’. sumer insolvency. without cause based on the administrative SEC. 1226. JUDICIAL EDUCATION. (b) STUDY REQUIRED.—The Board of Gov- record before the agency.’’. The Director of the Federal Judicial Cen- ernors of the Federal Reserve System (here- (b) EXPENSES OF STANDING TRUSTEES.—Sec- ter, in consultation with the Director of the after in this section referred to as the tion 586(e) of title 28, United States Code, is Executive Office for United States Trustees, ‘‘Board’’) shall conduct a study of— amended by adding at the end the following: shall develop materials and conduct such (1) consumer credit industry practices of ‘‘(3) After first exhausting all available ad- training as may be useful to courts in imple- soliciting and extending credit— ministrative remedies, an individual ap- menting this Act and the amendments made (A) indiscriminately; pointed under subsection (b) may obtain ju- by this Act, including the requirements re- (B) without taking steps to ensure that dicial review of final agency action to deny lating to the means test under section 707(b), consumers are capable of repaying the re- a claim of actual, necessary expenses under and reaffirmation agreements under section sulting debt; and this subsection by commencing an action in 524, of title 11 of the United States Code, as (C) in a manner that encourages consumers the district court of the United States for amended by this Act. to accumulate additional debt; and the district where the individual resides. The SEC. 1227. RECLAMATION. (2) the effects of such practices on con- decision of the agency shall be affirmed by (a) RIGHTS AND POWERS OF THE TRUSTEE.— sumer debt and insolvency. the district court unless it is unreasonable Section 546(c) of title 11, United States Code, (c) REPORT AND REGULATIONS.—Not later and without cause based upon the adminis- is amended to read as follows: than 12 months after the date of enactment trative record before the agency. ‘‘(c)(1) Except as provided in subsection (d) of this Act, the Board— ‘‘(4) The Attorney General shall prescribe of this section and in section 507(c), and sub- (1) shall make public a report on its find- procedures to implement this subsection.’’. ject to the prior rights of a holder of a secu- ings with respect to the indiscriminate solic- SEC. 1232. BANKRUPTCY FORMS. rity interest in such goods or the proceeds itation and extension of credit by the credit Section 2075 of title 28, United States Code, thereof, the rights and powers of the trustee industry; is amended by adding at the end the fol- under sections 544(a), 545, 547, and 549 are (2) may issue regulations that would re- lowing: subject to the right of a seller of goods that quire additional disclosures to consumers; ‘‘The bankruptcy rules promulgated under has sold goods to the debtor, in the ordinary and this section shall prescribe a form for the course of such seller’s business, to reclaim (3) may take any other actions, consistent statement required under section 707(b)(2)(C) such goods if the debtor has received such with its existing statutory authority, that of title 11 and may provide general rules on goods while insolvent, within 45 days before the Board finds necessary to ensure respon- the content of such statement.’’. the date of the commencement of a case sible industrywide practices and to prevent SEC. 1233. DIRECT APPEALS OF BANKRUPTCY under this title, but such seller may not re- resulting consumer debt and insolvency. MATTERS TO COURTS OF APPEALS. claim such goods unless such seller demands SEC. 1230. PROPERTY NO LONGER SUBJECT TO (a) APPEALS.—Section 158 of title 28, in writing reclamation of such goods— REDEMPTION. United States Code, is amended— ‘‘(A) not later than 45 days after the date Section 541(b) of title 11, United States (1) in subsection (c)(1), by striking ‘‘Sub- of receipt of such goods by the debtor; or Code, as amended by sections 225 and 323, is ject to subsection (b),’’ and inserting ‘‘Sub- ‘‘(B) not later than 20 days after the date of amended by adding after paragraph (7), as ject to subsections (b) and (d)(2),’’; and commencement of the case, if the 45-day pe- added by section 323, the following: (2) in subsection (d)—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00137 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S818 CONGRESSIONAL RECORD — SENATE February 1, 2005 (A) by inserting ‘‘(1)’’ after ‘‘(d)’’; and include a reference to the parties to the repay your balance, making only minimum (B) by adding at the end the following: judgment, order, or decree from which the payments, call this toll-free number: ‘‘(2)(A) The appropriate court of appeals appeal is taken. llllll.’ (the blank space to be filled in shall have jurisdiction of appeals described (4) FILING OF PETITION WITH ATTACHMENT.— by the creditor). in the first sentence of subsection (a) if the A petition requesting permission to appeal, ‘‘(B) In the case of an open end credit plan bankruptcy court, the district court, or the that is based on a certification made under that requires a minimum monthly payment bankruptcy appellate panel involved, acting subparagraph (A) or (B) of section 158(d)(2) of more than 4 percent of the balance on on its own motion or on the request of a shall— which finance charges are accruing, the fol- party to the judgment, order, or decree de- (A) be filed with the circuit clerk not later lowing statement, in a prominent location scribed in such first sentence, or all the ap- than 10 days after the certification is entered on the front of the billing statement, dis- pellants and appellees (if any) acting jointly, on the docket of the bankruptcy court, the closed clearly and conspicuously: ‘Minimum certify that— district court, or the bankruptcy appellate Payment Warning: Making only the required ‘‘(i) the judgment, order, or decree involves panel from which the appeal is taken; and minimum payment will increase the interest a question of law as to which there is no con- (B) have attached a copy of such certifi- you pay and the time it takes to repay your trolling decision of the court of appeals for cation. balance. Making a typical 5% minimum the circuit or of the Supreme Court of the (5) REFERENCES IN RULE 5.—FOR PURPOSES monthly payment on a balance of $300 at an United States, or involves a matter of public OF RULE 5 OF THE FEDERAL RULES OF APPEL- interest rate of 17% would take 24 months to importance; LATE PROCEDURE— repay the balance in full. For an estimate of ‘‘(ii) the judgment, order, or decree in- (A) a reference in such rule to a district the time it would take to repay your bal- volves a question of law requiring resolution court shall be deemed to include a reference ance, making only minimum monthly pay- of conflicting decisions; or to a bankruptcy court and to a bankruptcy ments, call this toll-free number: ‘‘(iii) an immediate appeal from the judg- appellate panel; and llllll.’ (the blank space to be filled in ment, order, or decree may materially ad- (B) a reference in such rule to a district by the creditor). vance the progress of the case or proceeding clerk shall be deemed to include a reference ‘‘(C) Notwithstanding subparagraphs (A) in which the appeal is taken; to a clerk of a bankruptcy court and to a and (B), in the case of a creditor with respect and if the court of appeals authorizes the di- clerk of a bankruptcy appellate panel. to which compliance with this title is en- rect appeal of the judgment, order, or decree. (6) APPLICATION OF RULES.—The Federal forced by the Federal Trade Commission, the ‘‘(B) If the bankruptcy court, the district Rules of Appellate Procedure shall apply in following statement, in a prominent location court, or the bankruptcy appellate panel— the courts of appeals with respect to appeals on the front of the billing statement, dis- ‘‘(i) on its own motion or on the request of authorized under section 158(d)(2)(A), to the closed clearly and conspicuously: ‘Minimum a party, determines that a circumstance extent relevant and as if such appeals were Payment Warning: Making only the required specified in clause (i), (ii), or (iii) of subpara- taken from final judgments, orders, or de- minimum payment will increase the interest graph (A) exists; or crees of the district courts or bankruptcy ap- you pay and the time it takes to repay your ‘‘(ii) receives a request made by a majority pellate panels exercising appellate jurisdic- balance. For example, making only the typ- of the appellants and a majority of appellees tion under subsection (a) or (b) of section 158 ical 5% minimum monthly payment on a bal- (if any) to make the certification described of title 28, United States Code. ance of $300 at an interest rate of 17% would in subparagraph (A); SEC. 1234. INVOLUNTARY CASES. take 24 months to repay the balance in full. then the bankruptcy court, the district (a) AMENDMENTS.—Section 303 of title 11, For an estimate of the time it would take to court, or the bankruptcy appellate panel United States Code, is amended— repay your balance, making only minimum shall make the certification described in (1) in subsection (b)(1), by— monthly payments, call the Federal Trade subparagraph (A). (A) inserting ‘‘as to liability or amount’’ Commission at this toll-free number: ‘‘(C) The parties may supplement the cer- after ‘‘bona fide dispute’’; and llllll.’ (the blank space to be filled in tification with a short statement of the basis (B) striking ‘‘if such claims’’ and inserting by the creditor). A creditor who is subject to for the certification. ‘‘if such noncontingent, undisputed claims’’; this subparagraph shall not be subject to ‘‘(D) An appeal under this paragraph does and subparagraph (A) or (B). not stay any proceeding of the bankruptcy (2) in subsection (h)(1), by inserting ‘‘as to ‘‘(D) Notwithstanding subparagraph (A), court, the district court, or the bankruptcy liability or amount’’ before the semicolon at (B), or (C), in complying with any such sub- appellate panel from which the appeal is the end. paragraph, a creditor may substitute an ex- taken, unless the respective bankruptcy (b) EFFECTIVE DATE; APPLICATION OF ample based on an interest rate that is court, district court, or bankruptcy appel- AMENDMENTS.—This section and the amend- greater than 17 percent. Any creditor that is late panel, or the court of appeals in which ments made by this section shall take effect subject to subparagraph (B) may elect to the appeal in pending, issues a stay of such on the date of the enactment of this Act and provide the disclosure required under sub- proceeding pending the appeal. shall apply with respect to cases commenced paragraph (A) in lieu of the disclosure re- ‘‘(E) Any request under subparagraph (B) under title 11 of the United States Code be- quired under subparagraph (B). for certification shall be made not later than fore, on, and after such date. ‘‘(E) The Board shall, by rule, periodically 60 days after the entry of the judgment, SEC. 1235. FEDERAL ELECTION LAW FINES AND recalculate, as necessary, the interest rate order, or decree.’’. PENALTIES AS NONDISCHARGEABLE and repayment period under subparagraphs (b) PROCEDURAL RULES.— DEBT. (A), (B), and (C). (1) TEMPORARY APPLICATION.—A provision Section 523(a) of title 11, United States ‘‘(F)(i) The toll-free telephone number dis- of this subsection shall apply to appeals Code, as amended by section 314, is amended closed by a creditor or the Federal Trade under section 158(d)(2) of title 28, United by inserting after paragraph (14A) the fol- Commission under subparagraph (A), (B), or States Code, until a rule of practice and pro- lowing: (G), as appropriate, may be a toll-free tele- cedure relating to such provision and such ‘‘(14B) incurred to pay fines or penalties phone number established and maintained by appeals is promulgated or amended under imposed under Federal election law;’’. the creditor or the Federal Trade Commis- chapter 131 of such title. TITLE XIII—CONSUMER CREDIT sion, as appropriate, or may be a toll-free (2) CERTIFICATION.—A district court, a DISCLOSURE telephone number established and main- bankruptcy court, or a bankruptcy appellate SEC. 1301. ENHANCED DISCLOSURES UNDER AN tained by a third party for use by the cred- panel may make a certification under sec- OPEN END CREDIT PLAN. itor or multiple creditors or the Federal tion 158(d)(2) of title 28, United States Code, (a) MINIMUM PAYMENT DISCLOSURES.—Sec- Trade Commission, as appropriate. The toll- only with respect to matters pending in the tion 127(b) of the Truth in Lending Act (15 free telephone number may connect con- respective bankruptcy court, district court, U.S.C. 1637(b)) is amended by adding at the sumers to an automated device through or bankruptcy appellate panel. end the following: which consumers may obtain information de- (3) PROCEDURE.—Subject to any other pro- ‘‘(11)(A) In the case of an open end credit scribed in subparagraph (A), (B), or (C), by vision of this subsection, an appeal author- plan that requires a minimum monthly pay- inputting information using a touch-tone ized by the court of appeals under section ment of not more than 4 percent of the bal- telephone or similar device, if consumers 158(d)(2)(A) of title 28, United States Code, ance on which finance charges are accruing, whose telephones are not equipped to use shall be taken in the manner prescribed in the following statement, located on the front such automated device are provided the op- subdivisions (a)(1), (b), (c), and (d) of rule 5 of of the billing statement, disclosed clearly portunity to be connected to an individual the Federal Rules of Appellate Procedure. and conspicuously: ‘Minimum Payment from whom the information described in sub- For purposes of subdivision (a)(1) of rule 5— Warning: Making only the minimum pay- paragraph (A), (B), or (C), as applicable, may (A) a reference in such subdivision to a dis- ment will increase the interest you pay and be obtained. A person that receives a request trict court shall be deemed to include a ref- the time it takes to repay your balance. For for information described in subparagraph erence to a bankruptcy court and a bank- example, making only the typical 2% min- (A), (B), or (C) from an obligor through the ruptcy appellate panel, as appropriate; and imum monthly payment on a balance of toll-free telephone number disclosed under (B) a reference in such subdivision to the $1,000 at an interest rate of 17% would take subparagraph (A), (B), or (C), as applicable, parties requesting permission to appeal to be 88 months to repay the balance in full. For shall disclose in response to such request served with the petition shall be deemed to an estimate of the time it would take to only the information set forth in the table

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00138 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S819 promulgated by the Board under subpara- months that it will take to repay the cus- ‘‘(B) in any case in which the extension of graph (H)(i). tomer’s outstanding balance is not subject to credit exceeds the fair market value (as de- ‘‘(ii)(I) The Board shall establish and main- the requirements of subparagraph (A) or (B). fined under the Internal Revenue Code of tain for a period not to exceed 24 months fol- ‘‘(K) A creditor that maintains a toll-free 1986) of the dwelling, the interest on the por- lowing the effective date of the Bankruptcy telephone number for the purpose of pro- tion of the credit extension that is greater Abuse Prevention and Consumer Protection viding customers with the actual number of than the fair market value of the dwelling is Act of 2005, a toll-free telephone number, or months that it will take to repay an out- not tax deductible for Federal income tax provide a toll-free telephone number estab- standing balance shall include the following purposes.’’. lished and maintained by a third party, for statement on each billing statement: ‘Mak- (2) CREDIT ADVERTISEMENTS.—Section use by creditors that are depository institu- ing only the minimum payment will increase 147(b) of the Truth in Lending Act (15 U.S.C. tions (as defined in section 3 of the Federal the interest you pay and the time it takes to 1665b(b)) is amended— Deposit Insurance Act), including a Federal repay your balance. For more information, (A) by striking ‘‘If any’’ and inserting the credit union or State credit union (as defined call this toll-free number: llll.’ (the following: in section 101 of the Federal Credit Union blank space to be filled in by the creditor).’’. ‘‘(1) IN GENERAL.—If any’’; and Act), with total assets not exceeding (b) REGULATORY IMPLEMENTATION.— (B) by adding at the end the following: $250,000,000. The toll-free telephone number (1) IN GENERAL.—The Board of Governors of ‘‘(2) CREDIT IN EXCESS OF FAIR MARKET may connect consumers to an automated de- the Federal Reserve System (hereafter in VALUE.—Each advertisement described in vice through which consumers may obtain this title referred to as the ‘‘Board’’) shall subsection (a) that relates to an extension of information described in subparagraph (A) or promulgate regulations implementing the credit that may exceed the fair market value (B), as applicable, by inputting information requirements of section 127(b)(11) of the of the dwelling, and which advertisement is using a touch-tone telephone or similar de- Truth in Lending Act, as added by sub- disseminated in paper form to the public or vice, if consumers whose telephones are not section (a) of this section. through the Internet, as opposed to by radio equipped to use such automated device are (2) EFFECTIVE DATE.—Section 127(b)(11) of or television, shall include a clear and con- provided the opportunity to be connected to the Truth in Lending Act, as added by sub- spicuous statement that— an individual from whom the information de- section (a) of this section, and the regula- ‘‘(A) the interest on the portion of the scribed in subparagraph (A) or (B), as appli- tions issued under paragraph (1) of this sub- credit extension that is greater than the fair cable, may be obtained. A person that re- section shall not take effect until the later market value of the dwelling is not tax de- ceives a request for information described in of— ductible for Federal income tax purposes; subparagraph (A) or (B) from an obligor (A) 18 months after the date of enactment and through the toll-free telephone number dis- of this Act; or ‘‘(B) the consumer should consult a tax ad- closed under subparagraph (A) or (B), as ap- (B) 12 months after the publication of such viser for further information regarding the plicable, shall disclose in response to such final regulations by the Board. deductibility of interest and charges.’’. request only the information set forth in the (c) STUDY OF FINANCIAL DISCLOSURES.— (b) NON-OPEN END CREDIT EXTENSIONS.— table promulgated by the Board under sub- (1) IN GENERAL.—The Board may conduct a (1) CREDIT APPLICATIONS.—Section 128 of paragraph (H)(i). The dollar amount con- study to determine the types of information the Truth in Lending Act (15 U.S.C. 1638) is tained in this subclause shall be adjusted ac- amended— cording to an indexing mechanism estab- available to potential borrowers from con- (A) in subsection (a), by adding at the end lished by the Board. sumer credit lending institutions regarding the following: ‘‘(II) Not later than 6 months prior to the factors qualifying potential borrowers for ‘‘(15) In the case of a consumer credit expiration of the 24-month period referenced credit, repayment requirements, and the transaction that is secured by the principal in subclause (I), the Board shall submit to consequences of default. the Committee on Banking, Housing, and (2) FACTORS FOR CONSIDERATION.—In con- dwelling of the consumer, in which the ex- Urban Affairs of the Senate and the Com- ducting a study under paragraph (1), the tension of credit may exceed the fair market mittee on Financial Services of the House of Board should, in consultation with the other value of the dwelling, a clear and con- Representatives a report on the program de- Federal banking agencies (as defined in sec- spicuous statement that— scribed in subclause (I). tion 3 of the Federal Deposit Insurance Act), ‘‘(A) the interest on the portion of the ‘‘(G) The Federal Trade Commission shall the National Credit Union Administration, credit extension that is greater than the fair establish and maintain a toll-free number for and the Federal Trade Commission, consider market value of the dwelling is not tax de- the purpose of providing to consumers the the extent to which— ductible for Federal income tax purposes; information required to be disclosed under (A) consumers, in establishing new credit and subparagraph (C). arrangements, are aware of their existing ‘‘(B) the consumer should consult a tax ad- ‘‘(H) The Board shall— payment obligations, the need to consider viser for further information regarding the ‘‘(i) establish a detailed table illustrating those obligations in deciding to take on new deductibility of interest and charges.’’; and the approximate number of months that it credit, and how taking on excessive credit (B) in subsection (b), by adding at the end would take to repay an outstanding balance can result in financial difficulty; the following: if a consumer pays only the required min- (B) minimum periodic payment features of- ‘‘(3) In the case of a credit transaction de- imum monthly payments and if no other ad- fered in connection with open end credit scribed in paragraph (15) of subsection (a), vances are made, which table shall clearly plans impact consumer default rates; disclosures required by that paragraph shall present standardized information to be used (C) consumers make only the required min- be made to the consumer at the time of ap- to disclose the information required to be imum payment under open end credit plans; plication for such extension of credit.’’. disclosed under subparagraph (A), (B), or (C), (D) consumers are aware that making only (2) CREDIT ADVERTISEMENTS.—Section 144 of as applicable; required minimum payments will increase the Truth in Lending Act (15 U.S.C. 1664) is ‘‘(ii) establish the table required under the cost and repayment period of an open amended by adding at the end the following: clause (i) by assuming— end credit obligation; and ‘‘(e) Each advertisement to which this sec- ‘‘(I) a significant number of different an- (E) the availability of low minimum pay- tion applies that relates to a consumer cred- nual percentage rates; ment options is a cause of consumers experi- it transaction that is secured by the prin- ‘‘(II) a significant number of different ac- encing financial difficulty. cipal dwelling of a consumer in which the ex- count balances; (3) REPORT TO CONGRESS.—Findings of the tension of credit may exceed the fair market ‘‘(III) a significant number of different Board in connection with any study con- value of the dwelling, and which advertise- minimum payment amounts; and ducted under this subsection shall be sub- ment is disseminated in paper form to the ‘‘(IV) that only minimum monthly pay- mitted to Congress. Such report shall also public or through the Internet, as opposed to ments are made and no additional extensions include recommendations for legislative ini- by radio or television, shall clearly and con- of credit are obtained; and tiatives, if any, of the Board, based on its spicuously state that— ‘‘(iii) promulgate regulations that provide findings. ‘‘(1) the interest on the portion of the cred- instructional guidance regarding the manner SEC. 1302. ENHANCED DISCLOSURE FOR CREDIT it extension that is greater than the fair in which the information contained in the EXTENSIONS SECURED BY A DWELL- market value of the dwelling is not tax de- table established under clause (i) should be ING. ductible for Federal income tax purposes; used in responding to the request of an obli- (a) OPEN END CREDIT EXTENSIONS.— and gor for any information required to be dis- (1) CREDIT APPLICATIONS.—Section ‘‘(2) the consumer should consult a tax ad- closed under subparagraph (A), (B), or (C). 127A(a)(13) of the Truth in Lending Act (15 viser for further information regarding the ‘‘(I) The disclosure requirements of this U.S.C. 1637a(a)(13)) is amended— deductibility of interest and charges.’’. paragraph do not apply to any charge card (A) by striking ‘‘CONSULTATION OF TAX AD- (c) REGULATORY IMPLEMENTATION.— account, the primary purpose of which is to VISER.—A statement that the’’ and inserting (1) IN GENERAL.—The Board shall promul- require payment of charges in full each the following: ‘‘TAX DEDUCTIBILITY.—A state- gate regulations implementing the amend- month. ment that— ments made by this section. ‘‘(J) A creditor that maintains a toll-free ‘‘(A) the’’; and (2) EFFECTIVE DATE.—Regulations issued telephone number for the purpose of pro- (B) by striking the period at the end and under paragraph (1) shall not take effect viding customers with the actual number of inserting the following: ‘‘; and until the later of—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00139 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S820 CONGRESSIONAL RECORD — SENATE February 1, 2005 (A) 12 months after the date of enactment percentage rate’ mean any rate of interest SEC. 1305. DISCLOSURES RELATED TO LATE PAY- of this Act; or applicable to a credit card account for an in- MENT DEADLINES AND PENALTIES. (B) 12 months after the date of publication troductory period of less than 1 year, if that (a) DISCLOSURES RELATED TO LATE PAY- of such final regulations by the Board. rate is less than an annual percentage rate MENT DEADLINES AND PENALTIES.—Section SEC. 1303. DISCLOSURES RELATED TO ‘‘INTRO- that was in effect within 60 days before the 127(b) of the Truth in Lending Act (15 U.S.C. DUCTORY RATES’’. date of mailing the application or solicita- 1637(b)) is amended by adding at the end the (a) INTRODUCTORY RATE DISCLOSURES.—Sec- tion; and following: ‘‘(12) If a late payment fee is to be imposed tion 127(c) of the Truth in Lending Act (15 ‘‘(ii) the term ‘introductory period’ means due to the failure of the obligor to make pay- U.S.C. 1637(c)) is amended by adding at the the maximum time period for which the tem- ment on or before a required payment due end the following: porary annual percentage rate may be appli- date, the following shall be stated clearly ‘‘(6) ADDITIONAL NOTICE CONCERNING ‘INTRO- cable. DUCTORY RATES and conspicuously on the billing statement: ’.— ‘‘(E) RELATION TO OTHER DISCLOSURE RE- ‘‘(A) IN GENERAL.—Except as provided in ‘‘(A) The date on which that payment is QUIREMENTS.—Nothing in this paragraph may subparagraph (B), an application or solicita- due or, if different, the earliest date on be construed to supersede subsection (a) of which a late payment fee may be charged. tion to open a credit card account and all section 122, or any disclosure required by promotional materials accompanying such ‘‘(B) The amount of the late payment fee paragraph (1) or any other provision of this application or solicitation for which a disclo- to be imposed if payment is made after such subsection.’’. sure is required under paragraph (1), and date.’’. that offers a temporary annual percentage (b) REGULATORY IMPLEMENTATION.— (b) REGULATORY IMPLEMENTATION.— rate of interest, shall— (1) IN GENERAL.—The Board shall promul- (1) IN GENERAL.—The Board shall promul- ‘‘(i) use the term ‘introductory’ in imme- gate regulations implementing the require- gate regulations implementing the require- diate proximity to each listing of the tem- ments of section 127(c)(6) of the Truth in ments of section 127(b)(12) of the Truth in porary annual percentage rate applicable to Lending Act, as added by this section. Lending Act, as added by this section. such account, which term shall appear clear- (2) EFFECTIVE DATE.—Section 127(c)(6) of (2) EFFECTIVE DATE.—The amendment ly and conspicuously; the Truth in Lending Act, as added by this made by subsection (a) and regulations ‘‘(ii) if the annual percentage rate of inter- section, and regulations issued under para- issued under paragraph (1) of this subsection est that will apply after the end of the tem- graph (1) of this subsection shall not take ef- shall not take effect until the later of— porary rate period will be a fixed rate, state fect until the later of— (A) 12 months after the date of enactment in a clear and conspicuous manner in a (A) 12 months after the date of enactment of this Act; or prominent location closely proximate to the of this Act; or (B) 12 months after the date of publication first listing of the temporary annual per- (B) 12 months after the date of publication of such final regulations by the Board. centage rate (other than a listing of the tem- of such final regulations by the Board. SEC. 1306. PROHIBITION ON CERTAIN ACTIONS porary annual percentage rate in the tabular FOR FAILURE TO INCUR FINANCE format described in section 122(c)), the time SEC. 1304. INTERNET-BASED CREDIT CARD SO- CHARGES. period in which the introductory period will LICITATIONS. (a) PROHIBITION ON CERTAIN ACTIONS FOR FAILURE TO INCUR FINANCE CHARGES.—Sec- end and the annual percentage rate that will (a) INTERNET-BASED SOLICITATIONS.—Sec- tion 127 of the Truth in Lending Act (15 apply after the end of the introductory pe- tion 127(c) of the Truth in Lending Act (15 U.S.C. 1637) is amended by adding at the end riod; and U.S.C. 1637(c)) is amended by adding at the the following: ‘‘(iii) if the annual percentage rate that end the following: ‘‘(h) PROHIBITION ON CERTAIN ACTIONS FOR will apply after the end of the temporary ‘‘(7) INTERNET-BASED SOLICITATIONS.— FAILURE TO INCUR FINANCE CHARGES.—A rate period will vary in accordance with an ‘‘(A) IN GENERAL.—In any solicitation to creditor of an account under an open end index, state in a clear and conspicuous man- open a credit card account for any person consumer credit plan may not terminate an ner in a prominent location closely proxi- under an open end consumer credit plan account prior to its expiration date solely mate to the first listing of the temporary an- using the Internet or other interactive com- because the consumer has not incurred fi- nual percentage rate (other than a listing in puter service, the person making the solici- nance charges on the account. Nothing in the tabular format prescribed by section tation shall clearly and conspicuously dis- this subsection shall prohibit a creditor from 122(c)), the time period in which the intro- close— terminating an account for inactivity in 3 or ductory period will end and the rate that ‘‘(i) the information described in subpara- more consecutive months.’’. will apply after that, based on an annual per- graphs (A) and (B) of paragraph (1); and (b) REGULATORY IMPLEMENTATION.— centage rate that was in effect within 60 ‘‘(ii) the information described in para- (1) IN GENERAL.—The Board shall promul- days before the date of mailing the applica- gate regulations implementing the require- tion or solicitation. graph (6). ‘‘(B) FORM OF DISCLOSURE.—The disclosures ments of section 127(h) of the Truth in Lend- ‘‘(B) EXCEPTION.—Clauses (ii) and (iii) of ing Act, as added by this section. subparagraph (A) do not apply with respect required by subparagraph (A) shall be— ‘‘(i) readily accessible to consumers in (2) EFFECTIVE DATE.—The amendment to any listing of a temporary annual per- made by subsection (a) and regulations centage rate on an envelope or other enclo- close proximity to the solicitation to open a credit card account; and issued under paragraph (1) of this subsection sure in which an application or solicitation shall not take effect until the later of— to open a credit card account is mailed. ‘‘(ii) updated regularly to reflect the cur- rent policies, terms, and fee amounts appli- (A) 12 months after the date of enactment ‘‘(C) CONDITIONS FOR INTRODUCTORY cable to the credit card account. of this Act; or RATES.—An application or solicitation to ‘‘(C) DEFINITIONS.—For purposes of this (B) 12 months after the date of publication open a credit card account for which a dis- of such final regulations by the Board. closure is required under paragraph (1), and paragraph— ‘‘(i) the term ‘Internet’ means the inter- SEC. 1307. DUAL USE DEBIT CARD. that offers a temporary annual percentage (a) REPORT.—The Board may conduct a rate of interest shall, if that rate of interest national computer network of both Federal and non-Federal interoperable packet study of, and present to Congress a report is revocable under any circumstance or upon containing its analysis of, consumer protec- any event, clearly and conspicuously dis- switched data networks; and ‘‘(ii) the term ‘interactive computer serv- tions under existing law to limit the liability close, in a prominent manner on or with of consumers for unauthorized use of a debit such application or solicitation— ice’ means any information service, system, or access software provider that provides or card or similar access device. Such report, if ‘‘(i) a general description of the cir- submitted, shall include recommendations cumstances that may result in the revoca- enables computer access by multiple users to a computer server, including specifically a for legislative initiatives, if any, of the tion of the temporary annual percentage Board, based on its findings. service or system that provides access to the rate; and (b) CONSIDERATIONS.—In preparing a report ‘‘(ii) if the annual percentage rate that will Internet and such systems operated or serv- under subsection (a), the Board may in- apply upon the revocation of the temporary ices offered by libraries or educational insti- clude— annual percentage rate— tutions.’’. (1) the extent to which section 909 of the ‘‘(I) will be a fixed rate, the annual per- (b) REGULATORY IMPLEMENTATION.— Electronic Fund Transfer Act (15 U.S.C. centage rate that will apply upon the revoca- (1) IN GENERAL.—The Board shall promul- 1693g), as in effect at the time of the report, tion of the temporary annual percentage gate regulations implementing the require- and the implementing regulations promul- rate; or ments of section 127(c)(7) of the Truth in gated by the Board to carry out that section ‘‘(II) will vary in accordance with an index, Lending Act, as added by this section. provide adequate unauthorized use liability the rate that will apply after the temporary (2) EFFECTIVE DATE.—The amendment protection for consumers; rate, based on an annual percentage rate made by subsection (a) and the regulations (2) the extent to which any voluntary in- that was in effect within 60 days before the issued under paragraph (1) of this subsection dustry rules have enhanced or may enhance date of mailing the application or solicita- shall not take effect until the later of— the level of protection afforded consumers in tion. (A) 12 months after the date of enactment connection with such unauthorized use li- ‘‘(D) DEFINITIONS.—In this paragraph— of this Act; or ability; and ‘‘(i) the terms ‘temporary annual percent- (B) 12 months after the date of publication (3) whether amendments to the Electronic age rate of interest’ and ‘temporary annual of such final regulations by the Board. Fund Transfer Act (15 U.S.C. 1693 et seq.), or

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00140 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S821 revisions to regulations promulgated by the (A) in subclause (II) by striking ‘‘or’’ at the (2) in section 523(a)(1)(A) by striking Board to carry out that Act, are necessary to end, ‘‘507(a)(2)’’ and inserting ‘‘507(a)(3)’’; further address adequate protection for con- (B) in subclause (III) by striking the period (3) in section 752(a) by striking ‘‘507(a)(1)’’ sumers concerning unauthorized use liabil- at the end and inserting ‘‘; or’’, and and inserting ‘‘507(a)(2)’’; ity. (C) by adding at the end the following: (4) in section 766— SEC. 1308. STUDY OF BANKRUPTCY IMPACT OF ‘‘(IV) made such transfer to or for the ben- (A) in subsection (h) by striking ‘‘507(a)(1)’’ CREDIT EXTENDED TO DEPENDENT efit of an insider, or incurred such obligation and inserting ‘‘507(a)(2)’’; and STUDENTS. to or for the benefit of an insider, under an (B) in subsection (i) by striking ‘‘507(a)(1)’’ (a) STUDY.— employment contract and not in the ordi- each place it appears and inserting (1) IN GENERAL.—The Board shall conduct a nary course of business.’’. ‘‘507(a)(2)’’; study regarding the impact that the exten- SEC. 1403. PAYMENT OF INSURANCE BENEFITS (5) in section 901(a) by striking ‘‘507(a)(1)’’ sion of credit described in paragraph (2) has TO RETIRED EMPLOYEES. and inserting ‘‘507(a)(2)’’; on the rate of cases filed under title 11 of the Section 1114 of title 11, United States Code, (6) in section 943(b)(5) by striking United States Code. is amended— ‘‘507(a)(1)’’ and inserting ‘‘507(a)(2)’’; (2) EXTENSION OF CREDIT.—The extension of (1) by redesignating subsection (l) as sub- (7) in section 1123(a)(1) by striking credit described in this paragraph is the ex- section (m), and ‘‘507(a)(1), 507(a)(2)’’ and inserting ‘‘507(a)(2), tension of credit to individuals who are— (2) by inserting after subsection (k) the fol- 507(a)(3)’’; (A) claimed as dependents for purposes of lowing: (8) in section 1129(a)(9)— the Internal Revenue Code of 1986; and ‘‘(l) If the debtor, during the 180-day period (A) in subparagraph (A) by striking (B) enrolled within 1 year of successfully ending on the date of the filing of the peti- ‘‘507(a)(1) or 507(a)(2)’’ and inserting completing all required secondary education tion— ‘‘507(a)(2) or 507(a)(3)’’; and requirements and on a full-time basis, in ‘‘(1) modified retiree benefits; and (B) in subparagraph (B) by striking postsecondary educational institutions. ‘‘(2) was insolvent on the date such bene- ‘‘507(a)(3)’’ and inserting ‘‘507(a)(1)’’; (b) REPORT.—Not later than 1 year after fits were modified; (9) in section 1226(b)(1) by striking the date of enactment of this Act, the Board the court, on motion of a party in interest, ‘‘507(a)(1)’’ and inserting ‘‘507(a)(2)’’; and shall submit to the Senate and the House of and after notice and a hearing, shall issue an (10) in section 1326(b)(1) by striking Representatives a report summarizing the order reinstating as of the date the modifica- ‘‘507(a)(1)’’ and inserting ‘‘507(a)(2)’’. results of the study conducted under sub- tion was made, such benefits as in effect im- (b) RELATED CONFORMING AMENDMENT.— section (a). mediately before such date unless the court Section 6(e) of the Securities Investor Pro- finds that the balance of the equities clearly SEC. 1309. CLARIFICATION OF CLEAR AND CON- tection Act of 1970 (15 U.S.C. 78fff(e)) is SPICUOUS. favors such modification.’’. amended by striking ‘‘507(a)(1)’’ and insert- (a) REGULATIONS.—Not later than 6 months SEC. 1404. EFFECTIVE DATE; APPLICATION OF ing ‘‘507(a)(2)’’. AMENDMENTS. after the date of enactment of this Act, the f (a) EFFECTIVE DATE.—Except as provided in Board, in consultation with the other Fed- subsection (b), this title and the amend- eral banking agencies (as defined in section SUBMITTED RESOLUTIONS ments made by this title shall take effect on 3 of the Federal Deposit Insurance Act), the the date of the enactment of this Act. National Credit Union Administration (b) APPLICATION OF AMENDMENTS.— Board, and the Federal Trade Commission, SENATE RESOLUTION 27—COM- (1) IN GENERAL.—Except as provided in MENDING THE RESULTS OF THE shall promulgate regulations to provide paragraph (2), the amendments made by this guidance regarding the meaning of the term title shall apply only with respect to cases JANUARY 9, 2005, PALESTINIAN ‘‘clear and conspicuous’’, as used in subpara- commenced under title 11 of the United PRESIDENTIAL ELECTIONS graphs (A), (B), and (C) of section 127(b)(11) States Code on or after the date of the enact- Mr. FRIST (for himself, Mr. REID, and clauses (ii) and (iii) of section ment of this Act. 127(c)(6)(A) of the Truth in Lending Act. Mr. LUGAR, Mr. BIDEN, Mr. LEVIN,, Mr. (2) AVOIDANCE PERIOD.—The amendment SUNUNU, Mr. CHAFEE, Mr. HAGEL, and (b) EXAMPLES.—Regulations promulgated made by section 1402(1) shall apply only with under subsection (a) shall include examples Mr. FEINGOLD) submitted the following respect to cases commenced under title 11 of resolution; which was considered and of clear and conspicuous model disclosures the United States Code more than 1 year for the purposes of disclosures required by after the date of the enactment of this Act. agreed to: the provisions of the Truth in Lending Act S. RES. 27 TITLE XV—GENERAL EFFECTIVE DATE; referred to in subsection (a). Whereas on January 9, 2005, for the first TANDARDS.—In promulgating regula- APPLICATION OF AMENDMENTS (c) S time in 9 years, large numbers of Palestin- tions under this section, the Board shall en- SEC. 1501. EFFECTIVE DATE; APPLICATION OF ians living in the West Bank, the Gaza Strip, sure that the clear and conspicuous standard AMENDMENTS. and Jerusalem voted in elections that were required for disclosures made under the pro- (a) EFFECTIVE DATE.—Except as otherwise widely described by outside monitors as free visions of the Truth in Lending Act referred provided in this Act, this Act and the amend- and fair; to in subsection (a) can be implemented in a ments made by this Act shall take effect 180 days after the date of enactment of this Act. Whereas the Palestinian people elected manner which results in disclosures which (b) APPLICATION OF AMENDMENTS.— former Prime Minister Mahmoud Abbas, also are reasonably understandable and designed (1) IN GENERAL.—Except as otherwise pro- known as Abu Mazen, to the office of Presi- to call attention to the nature and signifi- vided in this Act and paragraph (2), the dent of the Palestinian Authority; cance of the information in the notice. amendments made by this Act shall not Whereas an estimated 65 percent of eligible TITLE XIV—PREVENTING CORPORATE apply with respect to cases commenced Palestinians living in the West Bank, the BANKRUPTCY ABUSE under title 11, United States Code, before the Gaza Strip, and Jerusalem participated in SEC. 1401. EMPLOYEE WAGE AND BENEFIT PRI- effective date of this Act. voting at over 1000 polling stations, and for ORITIES. (2) CERTAIN LIMITATIONS APPLICABLE TO the first time in nearly 30 years, the Pales- Section 507(a) of title 11, United States DEBTORS.—The amendments made by sec- tinian people elected new leadership; Code, as amended by section 212, is amend- tions 308, 322, and 330 shall apply with re- Whereas on January 9, 2005, President of ed— spect to cases commenced under title 11, the United States George W. Bush stated (1) in paragraph (4) by striking ‘‘90’’ and in- United States Code, on or after the date of that it was a ‘‘historic day for the Pales- serting ‘‘180’’, and the enactment of this Act. tinian people and for the people of the Mid- (2) in paragraphs (4) and (5) by striking SEC. 1502. TECHNICAL CORRECTIONS. dle East’’ and that ‘‘Palestinians throughout ‘‘$4,000’’ and inserting ‘‘$10,000’’. (a) CONFORMING AMENDMENTS TO TITLE 11 the West Bank and Gaza took a key step to- SEC. 1402. FRAUDULENT TRANSFERS AND OBLI- OF THE UNITED STATES CODE.—Title 11 of the ward building a democratic future by choos- GATIONS. United States Code, as amended by the pre- ing a new president in elections that observ- Section 548 of title 11, United States Code, ceding provisions of this Act, is amended— ers described as largely free and fair’’; is amended— (1) in section 507— Whereas Israel provided important co- (1) in subsections (a) and (b) by striking (A) in subsection (a)— operation with the Palestinian Authority to ‘‘one year’’ and inserting ‘‘2 years’’, (i) in paragraph (5)(B)(ii) by striking enable the holding of this election, including (2) in subsection (a)— ‘‘paragraph (3)’’ and inserting ‘‘paragraph minimizing delays at checkpoints and rede- (A) by inserting ‘‘(including any transfer (4)’’; and ploying Israeli security forces away from to or for the benefit of an insider under an (ii) in paragraph (8)(D) by striking ‘‘para- Palestinian population centers; employment contract)’’ after ‘‘transfer’’ the graph (3)’’ and inserting ‘‘paragraph (4)’’; Whereas the Palestinian election was an 1st place it appears, and (B) in subsection (b) by striking ‘‘sub- important step towards democracy for the (B) by inserting ‘‘(including any obligation section (a)(1)’’ and inserting ‘‘subsection Palestinian people and an example to all to or for the benefit of an insider under an (a)(2)’’; and those in the region who are striving to employment contract)’’ after ‘‘obligation’’ (C) in subsection (d) by striking ‘‘sub- achieve democracy in their own nation; the 1st place it appears, and section (a)(3)’’ and inserting ‘‘subsection Whereas during his inaugural speech, (3) in subsection (a)(1)(B)(ii)— (a)(1)’’; President Abbas stated that ‘‘The winner in

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00141 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S822 CONGRESSIONAL RECORD — SENATE February 1, 2005 these elections is the great Palestinian peo- (4) expresses its respect for the freely ex- Whereas according to the Joint Center for ple who have created this democratic epic pressed will of the Palestinian people, and its International Language, foreign language and who will safeguard it’’, that ‘‘The people intention to work with President Abbas to study increases a student’s cognitive and have voted for the rule of law, order, plu- help the Palestinian people realize the op- critical thinking abilities; ralism, the peaceful transfer of authority, portunity for a more peaceful, prosperous fu- Whereas according to the American Coun- and equality for all’’, and further ‘‘Let us ture; cil on the Teaching of Foreign Languages, start implementing the Roadmap’’; (5) urges President Abbas and the new Pal- foreign language study increases a student’s Whereas these comments build upon Mr. estinian leadership to abide by its commit- ability to compare and contrast cultural Abbas’ 1993 statements on the White House ments to reform the security services, estab- concepts; lawn, where he said that a Palestinian state lish the rule of law, and press on with the de- Whereas according to a 1992 report by the and an Israeli state could live in ‘‘peaceful velopment of democratic institutions, in- College Entrance Examination Board, stu- coexistence and cooperation’’; cluding an independent judiciary and an em- dents with 4 or more years in foreign lan- Whereas the election of Mahmoud Abbas powered and democratically elected legisla- guage study scored higher on the verbal sec- was hailed around the world as a positive ture; tion of the Scholastic Aptitude Test (SAT) step opening new opportunities to move to- (6) urges President Abbas to move quickly than students who did not; ward peace between the Palestinian Author- to honor his pledges to halt violence and in- Whereas the Higher Education Act of 1965 ity and Israel; citement against Israel, dismantle terrorist labels foreign language study as vital to se- Whereas the Palestinian election provided organizations, and fulfill the Palestinian cure the future economic welfare of the President Abbas with a mandate from the Authority’s obligations according to the United States in a growing international majority of Palestinians to reject violence terms of the Roadmap; economy; and pursue peace with Israel; (7) supports efforts to increase United Whereas the Higher Education Act of 1965 Whereas the extent of cooperation between States assistance to the Palestinian people recommends encouraging businesses and for- the Israelis and Palestinians during the pe- and to help President Abbas rebuild and re- eign language study programs to work in a riod leading up to and including election day form the Palestinian Authority’s institu- mutually productive relationship which ben- was unprecedented in the past four years and tions, as President Abbas takes actions con- efits the Nation’s future economic interest; reflects the potential for future cooperation; sistent with the Roadmap, so that they may Whereas according to the Centers for Inter- Whereas the election must be followed better serve the Palestinian people; national Business Education and Research quickly by concrete steps on the part of the (8) urges all members of the international program, foreign language study provides new Palestinian President to meet his com- community, particularly all parties to the the ability both to gain a comprehensive un- mitment to reform the Palestinian security Roadmap, to take advantage of this historic derstanding of and to interact with the cul- services, establish the rule of law, and do all opportunity by providing timely assistance tures of United States trading partners, and in his power to combat terrorism; to the new Palestinian Government as it thus establishes a solid foundation for suc- Whereas a democratic Palestinian Author- moves forward to implement the Roadmap, cessful economic relationships; ity will serve as one of the most important to help it build the necessary political, eco- Whereas Report 107–592 of the Permanent building blocks for a viable, free, and stable nomic, and security infrastructure essential Select Committee on Intelligence of the Palestinian state; to establishing a viable, democratic state House of Representatives concludes that Whereas President Abbas’ success likely and improving the lives of the Palestinian American multinational corporations and will depend upon his ability to tangibly and people; nongovernmental organizations do not have quickly improve the quality of life for Pal- (9) calls upon Arab states in particular to the people with the foreign language abili- estinians, and end corruption and violence; provide political and financial support to the ties and cultural exposure that are needed; Whereas the United States Government Palestinian Authority, to support a complete Whereas the 2001 Hart-Rudman Report on stands ready to work with the new Pales- end to terrorism against Israel, to end in- National Security in the 21st Century names tinian President to facilitate a renewed dia- citement against it, and to reach out to the foreign language study and requisite knowl- logue between the new Palestinian leader- State of Israel in friendship and full recogni- edge in languages as vital for the Federal ship and the Government of Israel with the tion; Government to meet 21st century security goal of achieving through the Performance (10) reaffirms the commitment of the Based Roadmap to a Permanent Two-State United States to the security of Israel as a challenges properly and effectively; Solution to the Israeli-Palestinian Conflict democratic, Jewish state, and supports the Whereas the American intelligence com- (the ‘‘Roadmap’’), President George W. commitment of Israel to fulfill its obliga- munity stresses that individuals with proper Bush’s vision of two states, Israel and Pal- tions under the Roadmap; and foreign language expertise are greatly need- estine, living side by side in peace; (11) reaffirms the commitment of the ed to work on important national security Whereas the Roadmap, endorsed by the United States to the Roadmap including re- and foreign policy issues, especially in light United States, Israel, the Palestinian Au- alization of the vision of two democratic of the terrorist attacks on September 11, thority, the European Union, Russia, and the states, Israel and Palestine, living side by 2001; United Nations, remains the only realistic side in peace and security, and looks forward Whereas a 1998 study conducted by the Na- and widely recognized plan for making to working closely with the Executive tional Foreign Language Center concludes progress toward peace; Branch to achieve this vision. that inadequate resources existed for the de- Whereas the policy of the United States is velopment, publication, distribution, and to work toward a just and peaceful resolu- teaching of critical foreign languages (such SENATE RESOLUTION 28—DESIG- as Arabic, Vietnamese, and Thai) because of tion of the Palestinian-Israeli conflict based NATING THE YEAR 2005 AS THE on two democratic states, Israel and Pal- low student enrollment in the United States; ‘‘YEAR OF FOREIGN LANGUAGE and estine, living side by side in peace and secu- STUDY’’ rity; Whereas a shortfall of experts in foreign Whereas all parties to the Roadmap have Mr. DODD (for himself, Mr. COCHRAN, languages has seriously hampered informa- an obligation to urgently provide support for Mr. AKAKA, Mr. BAUCUS, Mr. BINGAMAN, tion gathering and analysis within the American intelligence community as dem- the Palestinian Authority in its efforts to Mr. DURBIN, Mr. FEINGOLD, Mr. HAGEL, confront and fight terror as well as to assist onstrated by the 2000 Cox Commission noting Mr. KENNEDY, Mr. LAUTENBERG, Mr. shortfalls in Chinese proficiency, and the Na- in the creation of true democratic institu- LIEBERMAN, and Mr. LUGAR) submitted tions that will enforce the rule of law; and tional Intelligence Council citing defi- the following resolution; which was re- ciencies in Central Eurasian, East Asian, and Whereas people of all peaceful nations be- ferred to the Committee on the Judici- lieve peace between the Palestinian Author- Middle Eastern languages: Now, therefore, be ity and the state of Israel will have far ary: it reaching positive effects on the entire region S. RES. 28 Resolved, That— and throughout the world; Now, therefore, be Whereas according to the 2000 decennial (1) it is the sense of the Senate that foreign it census of the population, 9.3 percent of language study makes important contribu- Resolved, That the Senate— Americans speak both their native language tions to a student’s cognitive development, (1) recognizes that, on January 9, 2005, Mr. and another language fluently; our national economy, and our national se- Mahmoud Abbas, also known as Abu Mazen, Whereas according to the European Com- curity; was elected by the Palestinian people to the mission Directorate General for Education (2) the Senate— office of President of the Palestinian Author- and Culture, 52.7 percent of Europeans speak (A) designates the year 2005 as the ‘‘Year of ity in what were widely described as free and both their native language and another lan- Foreign Language Study’’, during which for- fair elections; guage fluently; eign language study is promoted and ex- (2) recognizes this milestone in the devel- Whereas the Elementary and Secondary panded in elementary schools, secondary opment of Palestinian democracy and con- Education Act of 1965 names foreign lan- schools, institutions of higher learning, busi- gratulates President Abbas on his election to guage study as part of a core curriculum nesses, and government programs; and the presidency of the Palestinian Authority; that includes English, mathematics, science, (B) requests that the President issue a (3) commends the efforts of the Israeli Gov- civics, economics, arts, history, and geog- proclamation calling upon the people of the ernment to facilitate the election; raphy; United States to—

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00142 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S823 (i) encourage and support initiatives to SENATE RESOLUTION 30—AUTHOR- telecommunications provided by the Office promote and expand the study of foreign lan- IZING EXPENDITURES BY THE of the Sergeant at Arms and Doorkeeper, guages; and COMMITTEE ON COMMERCE, United States Senate, (3) for the payment of stationery supplies purchased through the (ii) observe the ‘‘Year of Foreign Language SCIENCE, AND TRANSPORTATION Study’’ with appropriate ceremonies, pro- Keeper of the Stationery, United States Sen- grams, and other activities. Mr. STEVENS submitted the fol- ate, (4) for payments to the Postmaster, lowing resolution; from the Committee United States Senate, (5) for the payment of on Commerce, Science, and Transpor- metered charges on copying equipment pro- vided by the Office of the Sergeant at Arms SENATE RESOLUTION 29—AUTHOR- tation; which was referred to the Com- mittee on Rules and Administration: and Doorkeeper, United States Senate, (6) IZING EXPENDITURES BY THE for the payment of Senate Recording and COMMITTEE ON ARMED SERV- S. 30 Photographic Services, or (7) for the pay- ICES Resolved, That, in carrying out its powers, ment of franked and mass mail costs by the duties, and functions under the Standing Office of the Sergeant at Arms and Door- Mr. WARNER submitted the fol- Rules of the Senate, in accordance with its keeper, United States Senate. lowing resolution; from the Committee jurisdiction under rule XXV of such rules, in- SEC. 5. There are authorized such sums as cluding holding hearings, reporting such may be necessary for agency contributions on Armed Services; which was referred hearings, and making investigations as au- related to the compensation of employees of to the Committee on Rules and Admin- thorized by paragraphs 1 and 8 of rule XXVI the Committee from March 1, 2005, through istration: of the Standing Rules of the Senate, the September 30, 2005, October 1, 2005, through Committee on Commerce, Science, and September 30, 2006, and October 1, 2006, S. RES. 29 Transportation is authorized from March 1, through February 28, 2007, to be paid from Resolved, That, in carrying out its powers, 2005, through September 30, 2005, October 1, the Appropriations account for ‘‘Expenses of duties, and functions under the Standing 2005, through September 30, 2006, and October Inquiries and Investigations’’. Rules of the Senate, in accordance with its 1, 2006, through February 28, 2007, in its dis- jurisdiction under rule XXV of such rules, in- cretion (1) to make expenditures from the SENATE RESOLUTION 31—EX- cluding holding hearings, reporting such contingent fund of the Senate, (2) to employ PRESSING THE SENSE OF THE personnel, and (3) with the prior consent of hearings, and making investigations as au- SENATE THAT THE WEEK OF AU- the Government department or agency con- thorized by paragraphs 1 and 8 of rule XXVI GUST 7, 2005, BE DESIGNATED AS cerned and the Committee on Rules and Ad- of the Standing Rules of the Senate, the ministration, to use on a reimbursable or ‘‘NATIONAL HEALTH CENTER Committee on Armed Services is authorized non-reimbursable basis the services of per- WEEK’’ IN ORDER TO RAISE from March 1, 2005, through September 30, sonnel of any such department or agency. AWARENESS OF HEALTH SERV- 2005; October 1, 2005, through September 30, SEC. 2. (a) The expenses of the Committee ICES PROVIDED BY COMMUNITY, 2006; and October 1, 2006, through February for the period from March 1, 2005, through MIGRANT, PUBLIC HOUSING, AND 28, 2007, in its discretion (1) to make expendi- September 30, 2005, under this resolution HOMELESS HEALTH CENTERS, tures from the contingent fund of the Sen- shall not exceed $3,463,046, of which amount AND FOR OTHER PURPOSES ate, (2) to employ personnel, and (3) with the (1) not to exceed $50,000 may be expended for prior consent of the Government department the procurement of the services of individual Mr. COLEMAN (for himself and Mr. or agency concerned and the Committee on consultants, or organizations thereof (as au- DURBIN) submitted the following reso- Rules and Administration, to use on a reim- thorized by section 202(i) of the Legislative lution; which was referred to the Com- bursable or nonreimbursable basis the serv- Reorganization Act of 1946, as amended), and mittee on the Judiciary: (2) not to exceed $50,000 may be expended for ices of personnel of any such department or S. RES. 31 agency. the training of the professional staff of the Committee (under procedures specified by Whereas community, migrant, public hous- SEC. 2. (a) The expenses of the committee section 202(j) of the Legislative Reorganiza- ing, and homeless health centers (‘‘health for the period March 1, 2005, through Sep- tion Act of 1946). centers’’) are nonprofit, community owned tember 30, 2005, under this resolution shall (b) For the period October 1, 2005, through and operated health providers and are vital not exceed $3,859,485, within which amount— September 30, 2006, expenses of the Com- to the Nation’s communities; (1) not to exceed $80,000 may be expended mittee under this resolution shall not exceed Whereas there are more than 1,000 such for the procurement of the services of indi- $6,080,372, of which amount (1) not to exceed health centers serving more than 15,000,000 vidual consultants, or organizations thereof $50,000 may be expended for the procurement people in over 3,600 communities; (as authorized by section 202(i) of the Legis- of the services of individual consultants, or Whereas health centers are found in urban lative Reorganization Act of 1946 (2 U.S.C. organizations thereof (as authorized by sec- and rural communities in all 50 States, the 72a(i))); and tion 202(i) of the Legislative Reorganization District of Columbia, Puerto Rico, Guam, (2) not to exceed $30,000 may be expended Act of 1946, as amended), and (2) not to ex- and the Virgin Islands; for the training of the professional staff of ceed $50,000 may be expended for the training Whereas health centers have provided cost- such committee (under the procedures speci- of the professional staff of the Committee effective, high-quality health care to the Na- fied in section 202(j) of that Act). (under procedures specified by section 202(j) tion’s poor and medically underserved (in- (b) For the period October 1, 2005, through of the Legislative Reorganization Act of cluding the working poor, the uninsured, and September 30, 2006, expenses of the com- 1946). many high-risk and vulnerable populations), acting as a vital safety net in the Nation’s mittee under this resolution shall not exceed (c) For the period October 1, 2006, through health delivery system; $6,778,457, within which amount— February 28, 2007, expenses of the committee Whereas health centers provide care to 1 of (1) not to exceed $75,000 may be expended under this resolution shall not exceed every 7 uninsured individuals, 1 of every 9 for the procurement of the services of indi- $2,588,267, of which amount (1) not to exceed Medicaid beneficiaries, 1 of every 7 people of vidual consultants, or organizations thereof $50,000 may be expended for the procurement color, and 1 of every 9 rural Americans, all of (as authorized by section 202(i) of the Legis- of the services of individual consultants, or whom would otherwise lack access to health lative Reorganization Act of 1946 (2 U.S.C. organizations thereof (as authorized by sec- care; 72a(i))); and tion 202(i) of the Legislative Reorganization Whereas health centers are engaged with (2) not to exceed $30,000 may be expended Act of 1946, as amended), and (2) not to ex- other innovative programs in primary and for the training of the professional staff of ceed $50,000 may be expended for the training preventive care to reach out to over 621,000 such committee (under the procedures speci- of the professional staff of such committee homeless persons and more than 709,000 farm fied in section 202(j) of that Act). (under procedures specified by section 202(j) of the Legislative Reorganization Act of workers; (c) For the period October 1, 2006, through 1946). Whereas health centers make health care February 28, 2007, expenses of the committee SEC. 3. The Committee shall report its responsive and cost-effective by integrating under this resolution shall not exceed findings, together with such recommenda- the delivery of primary care with aggressive $2,886,176, within which amount— tions for legislation as it deems advisable, to outreach, patient education, transportation, (1) not to exceed $50,000 may be expended the Senate at the earliest practicable date, translation, and enabling support services; for the procurement of the services of indi- but not later than February 28, 2006, and Whereas health centers increase the use of vidual consultants, or organizations thereof February 28, 2007, respectively. preventive health services such as immuni- (as authorized by section 202(i) of the Legis- SEC. 4. Expenses of the Committee under zations, Pap smears, mammograms, and lative Reorganization Act of 1946 (2 U.S.C. this resolution shall be paid from the contin- glaucoma screenings; 72a(i))); and gent fund of the Senate upon vouchers ap- Whereas in communities served by health (2) not to exceed $30,000 may be expended proved by the chairman of the Committee, centers, infant mortality rates have been re- for the training of the professional staff of except that vouchers shall not be required (1) duced over the past 4 years even as infant such committee (under the procedures speci- for the disbursement of salaries of employees mortality rates across the country have fied in section 202(j) of that Act). paid at an annual rate, (2) for the payment of risen;

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00143 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S824 CONGRESSIONAL RECORD — SENATE February 1, 2005 Whereas health centers are built by com- the services of personnel of any such depart- Mrs. FEINSTEIN, Mr. JOHNSON, Mr. JEF- munity initiative, and run by the patients ment or agency. FORDS, Mr. WYDEN, Ms. CANTWELL, Mr. SEC. 2(a). The expenses of the committee they serve; DODD, Mr. FEINGOLD, Mr. DURBIN, Mr. Whereas Federal grants provide seed for the period March 1, 2005, through Sep- SCHUMER, Mrs. MURRAY, and Mr. DOR- money empowering health centers to find tember 30, 2005, under this resolution shall partners and resources to recruit doctors and not exceed $3,290,588, of which amount (1) not GAN) submitted the following resolu- needed health professionals; to exceed $100,000 may be expended for the tion; which was referred to the Com- Whereas Federal grants on average con- procurement of the services of individual mittee on Foreign Relations: tribute 25 percent of a health center’s budg- consultants, or organizations thereof (as au- S. RES. 33 thorized by section 202(i) of the Legislative et, with the remainder provided by State and Whereas on November 15, 2004, the Govern- Reorganization Act of 1946, as amended), and local governments, Medicare, Medicaid, pri- ment of Canada opened a commercial hunt (2) not to exceed $5,000 may be expended for vate contributions, private insurance, and for seals in the waters off the east coast of the training of the professional staff of such patient fees; Canada; committee (under procedures specified by Whereas there are more than 100 health Whereas an international outcry regarding section 202(j) of the Legislative Reorganiza- centers that receive no Federal grant fund- the plight of the seals hunted in Canada re- tion Act of 1946). ing, yet continue to serve their communities sulted in the 1983 ban by the European Union regardless of their patients’ ability to pay; (b) For the period October 1, 2005, through September 30, 2006, expenses of the com- of whitecoat and blueback seal skins and the Whereas all health centers tailor their subsequent collapse of the commercial seal services to fit the special needs and prior- mittee under this resolution shall not exceed $5,769,387, of which amount (1) not to exceed hunt in Canada; ities of their communities, working together Whereas the Marine Mammal Protection with schools, businesses, churches, commu- $100,000 may be expended for the procure- ment of the services of individual consult- Act of 1972 (16 U.S.C. 1361 et seq.) bars the nity organizations, foundations, and State ants, or organizations thereof (as authorized import into the United States of any seal and local governments; by section 202(i) of the Legislative Reorga- products; Whereas all health centers contribute to nization Act of 1946, as amended), and (2) not Whereas in February 2003, the Ministry of the health and well-being of their commu- to exceed $5,000 may be expended for the Fisheries and Oceans in Canada authorized nities by keeping children healthy and in training of the professional staff of such the highest quota for harp seals in Canadian school and helping adults remain productive committee (under procedures specified by history, allowing nearly 1,000,000 seals to be and on the job; section 202(j) of the Legislative Reorganiza- killed over a 3-year period; Whereas all health centers encourage cit- tion Act of 1946). Whereas harp seal pups can be legally izen participation and provide jobs for nearly (c) For the period October 1, 2006, through hunted in Canada as soon as they have begun 100,000 community residents; and February 28, 2007, expenses of the committee to molt their white coats at approximately Whereas the designation of the week of Au- under this resolution shall not exceed 12 days of age; gust 7, 2005, as ‘‘National Health Center $2,452,849, of which amount (1) not to exceed Whereas 95 percent of the seals culled over Week’’ would raise awareness of the health $100,000 may be expended for the procure- the past 5 years were pups between just 12 services provided by all health centers: Now, ment of the services of individual consult- days and 12 weeks of age, many of which had therefore, be it ants, or organizations thereof (as authorized not yet eaten their first solid meal or Resolved, That the Senate— by section 202(i) of the Legislative Reorga- learned to swim; (1) designates the week of August 7, 2005, as nization Act of 1946, as amended), and (2) not Whereas a report by an independent team ‘‘National Health Center Week’’; and to exceed $5,000 may be expended for the of veterinarians invited to observe the hunt (2) requests that the President issue a training of the professional staff of such by the International Fund for Animal Wel- proclamation calling upon the people of the committee (under procedures specified by fare concluded that the seal hunt failed to United States to observe the week with ap- section 202(j) of the Legislative Reorganiza- comply with basic animal welfare regula- propriate ceremonies and activities. tion Act of 1946). tions in Canada and that governmental regu- Mr. COLEMAN. Mr. President, this SEC. 3. The Committee shall report its lations regarding humane killing were not resolution would designate August 7, findings, together with such recommenda- being respected or enforced; 2005 as ‘‘National Health Center Week’’ tions for legislation as it deems advisable, to Whereas the veterinary report concluded in order to raise awareness of health the Senate at the earliest practicable date, that as many as 42 percent of the seals stud- services provided by community, mi- but not later than February 28, 2007. ied were likely skinned while alive and con- SEC. 4. Expenses of the committee under scious; grant, public housing, and homeless this resolution shall be paid from the contin- Whereas the commercial slaughter of seals centers. gent fund of the Senate upon vouchers ap- in the Northwest Atlantic is inherently I hope my colleagues will join me in proved by the chairman of the committee, cruel, whether the killing is conducted by cosponsoring this important resolution except that vouchers shall not be required (1) clubbing or by shooting; and I look forward to its passage in the for the disbursement of salaries of employees Whereas many seals are shot in the course Senate. paid at an annual rate, or (2) for the pay- of the hunt, but escape beneath the ice where ment of telecommunications provided by the they die slowly and are never recovered, and SENATE RESOLUTION 32—AUTHOR- Office of the Sergeant at Arms and Door- these seals are not counted in official kill keeper, United States Senate, or (3) for the IZING EXPENDITURES BY THE statistics, making the actual kill level far payment of stationery supplies purchased higher than the level that is reported; COMMITTEE ON FOREIGN RELA- through the Keeper of the Stationery, United Whereas the commercial hunt for harp and TIONS States Senate, or (4) for payments to the hooded seals is a commercial slaughter car- Mr. LUGAR submitted the following Postmaster, United States Senate, or (5) for ried out almost entirely by non-Native peo- resolution; from the Committee on the payment of metered charges on copying ple from the East Coast of Canada for seal Foreign Relations; which was referred equipment provided by the Office of the Ser- fur, oil, and penises (used as aphrodisiacs in geant at Arms and Doorkeeper, United to the Committee on Rules and Admin- some Asian markets); States Senate, or (6) for the payment of Sen- Whereas the fishing and sealing industries istration: ate Recording and Photographic Services, or in Canada continue to justify the expanded S. RES. 32 (7) for payment of franked and mass mail seal hunt on the grounds that the seals in Resolved, That, in carrying out its powers, costs by the Sergeant at Arms and Door- the Northwest Atlantic are preventing the duties, and functions under the Standing keeper, United States Senate. recovery of cod stocks, despite the lack of Rules of the Senate, in accordance with its SEC. 5. There are authorized such sums as any credible scientific evidence to support jurisdiction under rule XXV of such rules, in- may be necessary for agency contributions this claim; cluding holding hearings, reporting such related to the compensation of employees of Whereas 2 Canadian Government marine hearings, and making investigations as au- the committee from March 1, 2005, through scientists reported in 1994 that the true thorized by paragraphs 1 and 8 of rule XXVI September 30, 2005; October 1, 2005, through cause of cod depletion in the North Atlantic of the Standing Rules of the Senate, the September 30, 2006; and October 1, 2006, was over-fishing, and the consensus among Committee on Foreign Relations, is author- through February 28, 2007, to be paid from the international scientific community is ized from March 1, 2005, through September the Appropriations account for ‘‘Expenses of that seals are not responsible for the col- 30, 2005; October 1, 2005, through September Inquiries and Investigations.’’ lapse of cod stocks; 30, 2006; and October 1, 2006, through Feb- Whereas harp and hooded seals are a vital ruary 28, 2007, in its discretion (1) to make SENATE RESOLUTION 33—URGING part of the complex ecosystem of the North- expenditures from the contingent fund of the THE GOVERNMENT OF CANADA west Atlantic, and because the seals con- Senate, (2) to employ personnel, and (3) with TO END THE COMMERCIAL SEAL sume predators of commercial cod stocks, re- the prior consent of the Government depart- HUNT moving the seals might actually inhibit re- ment or agency concerned and the Com- covery of cod stocks; mittee on Rules and Administration, to use Mr. LEVIN (for himself, Ms. COLLINS, Whereas certain ministries of the Govern- on a reimbursable or non-reimbursable basis Mr. LUGAR, Mr. REED, Mr. LAUTENBERG, ment of Canada have stated clearly that

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00144 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S825 there is no evidence that killing seals will and the dragging of live seals across SENATE CONCURRENT RESOLU- help groundfish stocks to recover; and the ice using steel hooks. TION 8—EXPRESSING THE SENSE Whereas the persistence of this cruel and Few would argue that this industry OF CONGRESS THAT THERE needless commercial hunt is inconsistent still serves a legitimate purpose. Even SHOULD CONTINUE TO BE PAR- with the well-earned international reputa- in Newfoundland, where 93 percent of tion of Canada: Now, therefore, be it ITY BETWEEN THE ADJUST- Resolved, That the Senate urges the Gov- the hunt occurs, the economic con- MENTS IN THE PAY OF MEM- ernment of Canada to end the commercial tribution of the seal hunt is marginal. BERS OF THE UNIFORMED SERV- hunt on seals that opened in the waters off Exports of seal products from New- ICES AND THE ADJUSTMENTS IN the east coast of Canada on November 15, foundland account for less than one- THE PAY OF CIVILIAN EMPLOY- 2004. tenth of one percent of the province’s EES OF THE UNITED STATES total exports. Is that worth the damage Mr. LEVIN. Mr. President, according Mr. SARBANES (for himself, Ms. to the highly respected Humane Soci- the seal hunt causes to Canada’s rep- COLLINS, Mr. AKAKA, Mr. WARNER, Mr. ety of the United States, HSUS, Can- utation? Out of a population of over LIEBERMAN, Mr. ALLEN, Ms. MIKULSKI, ada’s government has authorized the half a million people, only about 4,000 Ms. SNOWE, Mr. JOHNSON, Mr. DAYTON, slaughter of nearly 1 million seals over Newfoundlanders participate in the Mr. LAUTENBERG, Mr. KENNEDY, Mr. 3 years, 2004–2006, most of them be- hunt. That’s a total take home pay of DURBIN, Mr. CORZINE, Ms. LANDRIEU, tween 12 days and 12 weeks old. This is well under $800 per sealer. Mr. BINGAMAN, and Mrs. MURRAY) sub- the largest kill quota in history, which Many believe that it makes little sense to continue an industry that only mitted the following concurrent resolu- means that Canada is facilitating the tion; which was referred to the Com- artificial extension of an industry that operates for a few weeks a year, in which the concentrated killings takes mittee on Homeland Security and Gov- has ceased to exist in most developed ernmental Affairs: countries. place. Moreover, it employs only a few Canada officially opened its 6 months hundred people on a seasonal, part- S. CON. RES. 8 commercial seal hunt on November 15, time basis. Whereas members of the uniformed serv- The clubbing of baby seals can’t be 2004, paving the way for hundreds of ices of the United States and civilian em- defended or justified, and Canada ployees of the United States contribute to thousands of baby seals to be killed for should end it just as we ended the Alas- the general welfare of the United States, their fur during the 2004–2005 season. ka baby seal massacre 20 years ago. maintain the Nation’s defenses, and ensure Today, I am joined by Senators COL- I ask unanimous consent that the the security of the homeland; LINS, LUGAR, REED, LAUTENBERG, FEIN- January 19, 2005 letter from the U.S. Whereas civilian employees of the United STEIN, JOHNSON, JEFFORDS, WYDEN, State Department be printed in the States play a crucial role in the fight against CANTWELL, DODD, FEINGOLD, DURBIN, terrorism, as exemplified by— RECORD. (1) the civilian employees of the Depart- SCHUMER, MURRAY, and DORGAN in sub- There being no objection, the letter mitting a resolution that urges the ment of Homeland Security and the Depart- was ordered to be printed in the ment of Defense who are working to ensure Government of Canada to end this RECORD, as follows: the security of the United States; senseless, inhumane slaughter. Last DEPARTMENT OF STATE, (2) the employees of the Intelligence Com- year, we submitted a similar resolu- Washington, DC, January 19, 2005. munity and Federal law enforcement who tion, which was favorably reported by Hon. CARL LEVIN, have played a critical role in the investiga- the Senate Foreign Relations Com- U.S. Senate, tion of the September 11, 2001, terrorist at- mittee. Washington, DC. tacks and who are working to prevent fur- Opposition to the seal hunt is mount- DEAR SENATOR LEVIN: This is in response ther terrorist attacks; ing. Canada’s own people don’t support to your letter to the President of November (3) the civilian employees of the Depart- 24, 2004 regarding Canadian commercial seal the hunt. Polling shows that 71 percent ment of State who are working to maintain hunting. The White House has requested that a broad and sustained international commit- of Canadians—including 60 percent of the Department of State respond. We regret ment to wipe out terrorism around the Atlantic Canadians—believe the seal the delay in responding. Unfortunately, this world; hunt should be banned outright or lim- letter was not received in the Department of (4) the numerous skilled trade and craft ci- ited to seals over one year of age. Last State until mid-December, well after the ref- vilian employees of the Federal Government week, Canada’s conservative news- erenced meeting between President Bush and who work side-by-side with the men and paper, National Post, called for an end Prime Minister Paul Martin of Canada. women of the Armed Forces to maintain and We are aware of Canada’s seal hunting ac- deploy our air and sea fleet safely and swift- to the hunt. In January 2004, the Bel- tivities and of the opposition to it expressed gian government announced its inten- ly; and by many Americans. Furthermore, we can (5) the employees of the Centers for Dis- tion to prohibit the sale of seal fur; and assure you that the United States has a long- ease Control and Prevention within the De- standing policy opposing the hunting of seals in November 2003, 166 members of the partment of Health and Human Services who and other marine mammals absent sufficient British House of Commons signed an work every day protecting Americans from safeguards and information to ensure that bioterrorism and those at the Department of Early Day Motion opposing Canada’s the hunting will not adversely impact the af- Agriculture who strive to keep the Nation’s seal hunt. That motion received strong fected marine mammal population or the support from Britain’s Foreign Office ecosystem of which it is a part. The United food supply safe; Minister, Mike O’Brien. The American States policy is reflected in the Marine Whereas Americans depend on civilian em- people don’t support it either. Accord- Mammal Protection Act of 1972 (MMPA) ployees of the United States for a vast array which generally prohibits, with narrow and of important services from high profile dis- ing to a 2002 poll conducted by Penn, aster relief in times of national or inter- Schoen and Berland, 79 percent of specific exceptions, the taking of marine mammals in waters or lands subject to the national emergencies to the reliable admin- American voters oppose Canada’s seal jurisdiction of the United States and the im- istration of the Social Security program; hunt; and the U.S. Government has portation of marine mammals and marine Whereas civilian employees of the United gone on record in opposition to this mammal products into the United States. States will continue to serve and defend the senseless slaughter, as noted in the at- The United States has made known to the United States; tached, January 19, 2005, letter from Government of Canada its objections and the Whereas in fiscal year 2005 the Senate the U.S. Department of State, in re- objections of concerned American legislators budget resolution supported an across-the- and citizens to the Canadian commercial board pay raise for both members of the uni- sponse to a letter Senator COLLINS and seal hunt on numerous occasions over recent formed services and civilian employees of I wrote to President Bush, urging him years. The United States has also opposed the United States; and to raise this issue during his November Canada’s efforts within the Arctic Council to Whereas the House of Representatives 30, 2004 visit with Canadian Prime Min- promote trade in sealskins and other marine adopted House Resolution 581 affirming the ister Paul Martin. mammal products. bipartisan commitment to pay parity for fis- In 2001, a group of independent vet- We hope this information is helpful to you. cal year 2005: Now, therefore, be it erinarians traveled to observe the seal Please do not hesitate to contact us if we Resolved by the Senate (the House of Rep- hunt. What they witnessed was shock- can be of assistance in this or any other mat- resentatives concurring), That it is the sense ter. of Congress that rates of pay for all civilian ing to all who are concerned about the Sincerely, employees of the United States should be ad- humane treatment of animals. The im- NANCY POWELL, justed at the same time, and in the same ages are difficult to envision but hard- (For Paul V. Kelly, Asst. Secretary, proportion, as are rates of pay for members er to believe: skinning oflive animals Legislative Affairs). of the uniformed services.

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00145 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S826 CONGRESSIONAL RECORD — SENATE February 1, 2005 Mr. SARBANES. Mr. President, I am more positive attitude towards govern- in open session to receive testimony on pleased to join with Senators COLLINS, ment and politics in recent years, but death benefits and services available to AKAKA, WARNER, LIEBERMAN, ALLEN, are still unlikely to consider govern- survivors of military personnel and leg- MIKULSKI, SNOWE, JOHNSON, DAYTON, ment service as a career. One way to islative proposals to enhance these LAUTENBERG, KENNEDY, DURBIN, address this looming crisis is to take benefits. CORZINE, LANDRIEU, BINGAMAN, and tangible steps to make Federal service The PRESIDING OFFICER. Without MURRAY in submitting a resolution ex- more financially attractive. objection, it is so ordered. pressing the sense of the Congress that I should note that despite the press- COMMITTEE ON COMMERCE, SCIENCE, AND parity between Federal civilian pay ing need to draw more qualified can- TRANSPORTATION and military pay should be maintained. didates to Federal service, the Federal Mr. HATCH. Mr. President, I ask During this unprecedented time in Employee Pay Comparability Act unanimous consent that the Com- our Nation’s history, both members of (FEPCA)—designed to bring Federal mittee on Commerce, Science, and the uniformed services and civilian pay in line with private sector pay— Transportation be authorized to meet Federal employees are maintaining our has never been fully implemented. If on Tuesday, February 1, 2005, at 10 Nation’s defenses, ensuring the secu- we are serious about resolving our Fed- a.m., on pending Committee business. rity of the homeland, and making re- eral workforce shortage issue, we must The PRESIDING OFFICER. Without markable contributions to the general also begin a conversation about imple- objection, it is so ordered. welfare of the United States. Pay par- menting FEPCA. At a minimum, how- COMMITTEE ON FOREIGN RELATIONS ity among all those who serve our Na- ever, we should recognize the impor- Mr. HATCH. Mr. President, I ask tion appropriately recognizes the cru- tance of civilian Federal employees by unanimous consent that the Com- cial work and honorable sacrifices of providing equal pay raises to all those mittee on Foreign Relations be author- the civilian Federal workforce. The who choose to serve our country. Oth- ized to meet during the session of the contributions of civilian employees erwise we risk further reducing the Senate on Tuesday, February 1, 2005 at range from Department of Defense em- number of qualified candidates we can 9 a.m., to hold a hearing on Iraq. ployees working alongside the military recruit to civilian federal jobs. The PRESIDING OFFICER. Without in hostile environments abroad to The dedication of both the uniformed objection, it is so ordered. those at the Department of Health and services and our civilian employees COMMITTEE ON FOREIGN RELATIONS Human Services who consistently embody the greatness of our Nation, Mr. HATCH. Mr. President, I ask achieve critical breakthroughs in day in and day out, through their com- unanimous consent that the Com- science and medicine. The sacrifice of mitment to public service. I urge my mittee on Foreign Relations be author- these individuals is made evident by colleagues to support this resolution so ized to meet during the session of the individuals such as CIA employee Mike that the contributions of both are rec- Senate on Tuesday, February 1, 2005 at Spann, the first casualty of the conflict ognized in an equitable manner. 2:30 p.m., to hold a Business Meeting. in Afghanistan; Lawrence Foley, an f The PRESIDING OFFICER. Without employee of the U.S. Agency for Inter- objection, it is so ordered. national Development who was assas- AMENDMENTS SUBMITTED & f sinated by terrorists in Jordan; Joseph PROPOSED Curseen, Jr. and Thomas Morris, Jr., PRIVILEGES OF THE FLOOR SA 1. Mr. DURBIN (for Mr. LEAHY (for postal workers who died as a result of himself and Mr. HATCH)) proposed an amend- Mr. SPECTER. Mr. President, I ask the anthrax attacks of 2001; and many ment to the bill S. 167, to provide for the pro- unanimous consent that Michael others. tection of intellectual property rights, and O’Neill, chief counsel of the Senate Ju- Congress has demonstrated a bipar- for other purposes. diciary Committee; Brett Tolman, a tisan and longstanding commitment to f detailee from the Department of Jus- the principle of pay parity by providing tice; and Nicholas Rossi, a detailee for equal pay adjustments in each of TEXT OF AMENDMENTS from the Federal Bureau of Investiga- the last three years and 17 of the last 19 SA 1. Mr. DURBIN (for Mr. LEAHY tion, be granted floor privileges for the years. The budget proposal presented (for himself and Mr. HATCH)) proposed first session of the 109th Congress. to Congress for Fiscal Year 2005 in- an agreement to the bill S. 167, to pro- Mr. LEAHY. Mr. President, reserving cluded a 3.5 percent pay raise for mem- vide for the protection of intellectual the right to object, and I will not ob- bers of the uniformed services, but only property rights, and for other purposes; ject, I also ask, for purposes of debate a 1.5 percent pay raise for our dedi- as follows: on the Gonzales nomination, unani- cated public servants. However, both On page 21, line 7, strike ‘‘12’’ and insert mous consent that floor privileges be Houses of Congress reaffirmed their ‘‘13’’. granted to Matthew Nelson. support for equal pay by including a 3.5 Mr. SPECTER. With that modifica- f percent raise for both civilian and mili- tion, the unanimous consent request is tary employees in their respective res- NOTICES OF HEARINGS/MEETINGS pursued. olutions and relevant Fiscal Year 2005 The PRESIDING OFFICER. Is there COMMITTEE ON AGRICULTURE, NUTRITION, AND appropriations bills. objection? Providing equitable pay raises for FORESTRY Mr. CHAMBLISS. Mr. President, I Without objection, it is so ordered. federal employees is not just an issue Mr. SPECTER. Mr. President, I ask announce that the Committee on Agri- of fairness. It is also critical to recruit- unanimous consent that the following culture, Nutrition, and Forestry will ing and retaining talented individuals individuals be granted privileges of the conduct a hearing on February 3, 2005 in public service, and therefore, to suc- floor for the duration of the 109th Con- in SD–106 at 11 a.m. The purpose of this cessfully administering important Fed- gress: Grace Chung Becker, a detailee hearing will be to examine the effects eral programs. Our Federal Govern- from the U.S. Sentencing Commission; of Bovine Spongiform Encephalopathy ment is facing a ‘‘human capital’’ crisis Bruce Artim, a detailee from the Na- (BSE) on U.S. imports and exports of that threatens institutional experience tional Institute of Health; and Reed cattle and beef. and knowledge at every level. Within O’Connor, a detailee from the Depart- the next five years, our government f ment of Justice. could lose up to half of its workforce to The PRESIDING OFFICER. Without retirement. These vacancies will occur AUTHORITY FOR COMMITTEES TO MEET objection, it is so ordered. in an era in which those entering the f workforce are far less likely to join COMMITTEE ON ARMED SERVICES public service. Numerous studies by Mr. HATCH. Mr. President, I ask FAMILY ENTERTAINMENT AND groups such as the Partnership for Pub- unanimous consent that the Com- COPYRIGHT ACT OF 2005 lic Service and the Council for Excel- mittee on Armed Services be author- Mr. BROWNBACK. Mr. President, I lence in Government indicate that ized to meet during the session of the ask unanimous consent that the Judi- young Americans have developed a Senate on February 1, 2005, at 9:30 a.m., ciary Committee be discharged from

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00146 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S827 further consideration of S. 167, and the The amendment (No. 1) was agreed work for the purpose of questioning or sum- Senate proceed to its immediate con- to, as follows: moning a law enforcement officer; and sideration. On page 21, line 7, strike ‘‘12’’ and insert ‘‘(2) shall not be held liable in any civil or The PRESIDING OFFICER. Without ‘‘13’’. criminal action arising out of a detention objection, it is so ordered. The clerk under paragraph (1). The bill (S. 167), as amended, was ‘‘(e) VICTIM IMPACT STATEMENT.— will report the bill by title. read the third time and passed, as fol- ‘‘(1) IN GENERAL.—During the preparation The assistant legislative clerk read lows: of the presentence report under rule 32(c) of as follows: S. 167 the Federal Rules of Criminal Procedure, A bill (S. 167) to provide for the protection victims of an offense under this section shall Be it enacted by the Senate and House of Rep- of intellectual property rights, and for other be permitted to submit to the probation offi- resentatives of the United States of America in purposes. cer a victim impact statement that identi- Congress assembled, There being no objection, the Senate fies the victim of the offense and the extent SECTION 1. SHORT TITLE. and scope of the injury and loss suffered by proceeded to consider the bill. This Act may be cited as the ‘‘Family En- Mr. LEAHY. Mr. President, I am the victim, including the estimated eco- tertainment and Copyright Act of 2005’’. nomic impact of the offense on that victim. pleased that today the Senate will pass TITLE I—ARTISTS’ RIGHTS AND THEFT the Family Entertainment and Copy- ‘‘(2) CONTENTS.—A victim impact state- PREVENTION ment submitted under this subsection shall right Act of 2005. This bill completes SEC. 101. SHORT TITLE. include— the ambitious package of intellectual This title may be cited as the ‘‘Artists’ ‘‘(A) producers and sellers of legitimate property legislation that we under- Rights and Theft Prevention Act of 2005’’ or works affected by conduct involved in the of- took, along with our counterparts in the ‘‘ART Act’’. fense; the House of Representatives, to enact SEC. 102. CRIMINAL PENALTIES FOR UNAUTHOR- ‘‘(B) holders of intellectual property rights at the end of the 108th Congress. This is IZED RECORDING OF MOTION PIC- in the works described in subparagraph (A); a bipartisan bill that makes important TURES IN A MOTION PICTURE EXHI- and BITION FACILITY. changes to our copyright laws and that ‘‘(C) the legal representatives of such pro- (a) IN GENERAL.—Chapter 113 of title 18, ducers, sellers, and holders. will help ensure the preservation of United States Code, is amended by adding ‘‘(f) STATE LAW NOT PREEMPTED.—Nothing America’s cultural heritage. Today’s after section 2319A the following new sec- in this section may be construed to annul or passage of this bill is testimony to the tion: limit any rights or remedies under the laws efforts of several in this Chamber to ‘‘§ 2319B. Unauthorized recording of Motion of any State. ensure we make good law, capable of pictures in a Motion picture exhibition fa- ‘‘(g) DEFINITIONS.—In this section, the fol- swift enactment, and for that I thank cility lowing definitions shall apply: in particular the bill’s cosponsors, Sen- ‘‘(a) OFFENSE.—Any person who, without ‘‘(1) TITLE 17 DEFINITIONS.—The terms ators HATCH, FEINSTEIN, ALEXANDER, the authorization of the copyright owner, ‘audiovisual work’, ‘copy’, ‘copyright owner’, ‘motion picture’, ‘motion picture exhibition and CORNYN. knowingly uses or attempts to use an audio- The FECA bill is made up of four im- visual recording device to transmit or make facility’, and ‘transmit’ have, respectively, a copy of a motion picture or other audio- the meanings given those terms in section portant provisions. Title I of the bill 101 of title 17. contains the ART Act, which will crim- visual work protected under title 17, or any part thereof, from a performance of such ‘‘(2) AUDIOVISUAL RECORDING DEVICE.—The inalize the use of camcorders to steal work in a motion picture exhibition facility, term ‘audiovisual recording device’ means a movies surreptitiously from the big shall— digital or analog photographic or video cam- screen. The second title of the bill is ‘‘(1) be imprisoned for not more than 3 era, or any other technology or device capa- the Family Movie Act, which was de- years, fined under this title, or both; or ble of enabling the recording or transmission signed to allow consumers to view only ‘‘(2) if the offense is a second or subsequent of a copyrighted motion picture or other those portions of movies, in their own offense, be imprisoned for no more than 6 audiovisual work, or any part thereof, re- years, fined under this title, or both. gardless of whether audiovisual recording is homes, that they want to. Title III of the sole or primary purpose of the device.’’. The possession by a person of an audiovisual the bill contains the Film Preservation (b) CLERICAL AMENDMENT.—The table of recording device in a motion picture exhi- Act, legislation that I sponsored in the sections at the beginning of chapter 113 of bition facility may be considered as evidence last Congress. The Film Preservation title 18, United States Code, is amended by in any proceeding to determine whether that Act will allow the Library of Congress inserting after the item relating to section person committed an offense under this sub- 2319A the following: to continue its important work in pre- section, but shall not, by itself, be sufficient serving America’s fading film treas- to support a conviction of that person for ‘‘2319B. Unauthorized recording of motion ures. What is more, the bill will assist such offense. pictures in a motion picture ex- libraries, museums, and archives in ‘‘(b) FORFEITURE AND DESTRUCTION.—When hibition facility.’’. preserving films, and in making those a person is convicted of a violation of sub- (c) DEFINITION.—Section 101 of title 17, works available to researchers and the section (a), the court in its judgment of con- United States Code, is amended by inserting public. Finally, the bill contains the viction shall, in addition to any penalty pro- after the definition of ‘‘Motion pictures’’ the Preservation of Orphan Works Act, vided, order the forfeiture and destruction or following: ‘‘The term ‘‘motion picture exhi- other disposition of all unauthorized copies bition facility’’ means a movie theater, which will correct a drafting error in of motion pictures or other audiovisual screening room, or other venue that is being the Sonny Bono Copyright Term Ex- works protected under title 17, or parts used primarily for the exhibition of a copy- tension Act and will allow libraries to thereof, and any audiovisual recording de- righted motion picture, if such exhibition is create copies of orphan works—copy- vices or other equipment used in connection open to the public or is made to an assem- righted materials that are in the last with the offense. bled group of viewers outside of a normal cir- 20 years of their copyright term, are no ‘‘(c) AUTHORIZED ACTIVITIES.—This section cle of a family and its social acquaint- longer commercially exploited, and are does not prevent any lawfully authorized in- ances.’’. not available at a reasonable price. vestigative, protective, or intelligence activ- SEC. 103. CRIMINAL INFRINGEMENT OF A WORK I thank the cosponsors of the Family ity by an officer, agent, or employee of the BEING PREPARED FOR COMMER- CIAL DISTRIBUTION. Entertainment and Copyright Act, and United States, a State, or a political subdivi- sion of a State, or by a person acting under (a) PROHIBITED ACTS.—Section 506(a) of I hope the House of Representatives a contract with the United States, a State, title 17, United States Code, is amended to will move with dispatch to pass and or a political subdivision of a State. read as follows: send to the President this consensus ‘‘(d) IMMUNITY FOR THEATERS.—With rea- ‘‘(a) CRIMINAL INFRINGEMENT.— legislation. sonable cause, the owner or lessee of a mo- ‘‘(1) IN GENERAL.—Any person who willfully Mr. BROWNBACK. Mr. President, I tion picture exhibition facility where a mo- infringes a copyright shall be punished as ask unanimous consent that the tech- tion picture or other audiovisual work is provided under section 2319 of title 18, if the nical amendment that is at the desk be being exhibited, the authorized agent or em- infringement was committed— agreed to, the bill, as amended, be read ployee of such owner or lessee, the licensor ‘‘(A) for purposes of commercial advantage a third time and passed, the motions to of the motion picture or other audiovisual or private financial gain; work being exhibited, or the agent or em- ‘‘(B) by the reproduction or distribution, reconsider be laid upon the table, and ployee of such licensor— including by electronic means, during any that any statements relating to the ‘‘(1) may detain, in a reasonable manner 180–day period, of 1 or more copies or bill be printed in the RECORD. and for a reasonable time, any person sus- phonorecords of 1 or more copyrighted The PRESIDING OFFICER. Without pected of a violation of this section with re- works, which have a total retail value of objection, it is so ordered. spect to that motion picture or audiovisual more than $1,000; or

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00147 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE S828 CONGRESSIONAL RECORD — SENATE February 1, 2005 ‘‘(C) by the distribution of a work being issue regulations to establish procedures for in the media format used by the infringing prepared for commercial distribution, by preregistration of a work that is being pre- party or in any other media format; making it available on a computer network pared for commercial distribution and has (3) determine whether the scope of accessible to members of the public, if such not been published. ‘‘uploading’’ set forth in application note 3 of person knew or should have known that the ‘‘(2) CLASS OF WORKS.—The regulations es- section 2B5.3 of the Federal sentencing work was intended for commercial distribu- tablished under paragraph (1) shall permit guidelines is adequate to address the loss at- tion. preregistration for any work that is in a tributable to people who, without authoriza- ‘‘(2) EVIDENCE.—For purposes of this sub- class of works that the Register determines tion, broadly distribute copyrighted works section, evidence of reproduction or distribu- has had a history of infringement prior to over the Internet; and tion of a copyrighted work, by itself, shall authorized commercial distribution. (4) determine whether the sentencing not be sufficient to establish willful infringe- ‘‘(3) APPLICATION FOR REGISTRATION.—Not guidelines and policy statements applicable ment of a copyright. later than 3 months after the first publica- to the offenses described in subsection (a) ‘‘(3) DEFINITION.—In this subsection, the tion of a work preregistered under this sub- adequately reflect any harm to victims from term ‘work being prepared for commercial section, the applicant shall submit to the copyright infringement if law enforcement distribution’ means— Copyright Office— authorities cannot determine how many ‘‘(A) a computer program, a musical work, ‘‘(A) an application for registration of the times copyrighted material has been repro- a motion picture or other audiovisual work, work; duced or distributed. or a sound recording, if, at the time of unau- ‘‘(B) a deposit; and TITLE II—EXEMPTION FROM INFRINGE- thorized distribution— ‘‘(C) the applicable fee. MENT FOR SKIPPING AUDIO AND VIDEO ‘‘(i) the copyright owner has a reasonable ‘‘(4) EFFECT OF UNTIMELY APPLICATION.—An CONTENT IN MOTION PICTURES expectation of commercial distribution; and action under this chapter for infringement of SEC. 201. SHORT TITLE. ‘‘(ii) the copies or phonorecords of the a work preregistered under this subsection, This title may be cited as the ‘‘Family work have not been commercially distrib- in a case in which the infringement com- Movie Act of 2005’’. uted; or menced no later than 2 months after the first SEC. 202. EXEMPTION FROM INFRINGEMENT FOR ‘‘(B) a motion picture, if, at the time of un- publication of the work, shall be dismissed if SKIPPING AUDIO AND VIDEO CON- authorized distribution, the motion picture— the items described in paragraph (3) are not TENT IN MOTION PICTURES. ‘‘(i) has been made available for viewing in submitted to the Copyright Office in proper (a) IN GENERAL.—Section 110 of title 17, a motion picture exhibition facility; and form within the earlier of— United States Code, is amended— ‘‘(ii) has not been made available in copies ‘‘(A) 3 months after the first publication of (1) in paragraph (9), by striking ‘‘and’’ for sale to the general public in the United the work; or after the semicolon at the end; States in a format intended to permit view- ‘‘(B) 1 month after the copyright owner has (2) in paragraph (10), by striking the period ing outside a motion picture exhibition facil- learned of the infringement.’’. at the end and inserting ‘‘; and’’; ity.’’. (b) INFRINGEMENT ACTIONS.—Section 411(a) (3) by inserting after paragraph (10) the fol- (b) CRIMINAL PENALTIES.—Section 2319 of of title 17, United States Code, is amended by lowing: title 18, United States Code, is amended— inserting ‘‘preregistration or’’ after ‘‘shall be ‘‘(11) the making imperceptible, by or at (1) in subsection (a)— instituted until’’. the direction of a member of a private house- (A) by striking ‘‘Whoever’’ and inserting (c) EXCLUSION.—Section 412 of title 17, hold, of limited portions of audio or video ‘‘Any person who’’; and United States Code, is amended by inserting content of a motion picture, during a per- (B) by striking ‘‘and (c) of this section’’ after ‘‘section 106A(a)’’ the following: ‘‘, an formance in or transmitted to that house- and inserting ‘‘, (c), and (d)’’; action for infringement of the copyright of a hold for private home viewing, from an au- (2) in subsection (b), by striking ‘‘section work that has been preregistered under sec- thorized copy of the motion picture, or the 506(a)(1)’’ and inserting ‘‘section tion 408(f) before the commencement of the creation or provision of a computer program 506(a)(1)(A)’’; infringement and that has an effective date or other technology that enables such mak- (3) in subsection (c), by striking ‘‘section of registration not later than the earlier of 3 ing imperceptible and that is designed and 506(a)(2) of title 17, United States Code’’ and months after the first publication of the marketed to be used, at the direction of a inserting ‘‘section 506(a)(1)(B) of title 17’’; work or 1 month after the copyright owner member of a private household, for such (4) by redesignating subsections (d) and (e) has learned of the infringement,’’. making imperceptible, if no fixed copy of the as subsections (e) and (f), respectively; altered version of the motion picture is cre- SEC. 105. FEDERAL SENTENCING GUIDELINES. (5) by adding after subsection (c) the fol- ated by such computer program or other (a) REVIEW AND AMENDMENT.—Not later lowing: technology.’’; and ‘‘(d) Any person who commits an offense than 180 days after the date of enactment of (4) by adding at the end the following: under section 506(a)(1)(C) of title 17— this Act, the United States Sentencing Com- ‘‘For purposes of paragraph (11), the term ‘‘(1) shall be imprisoned not more than 3 mission, pursuant to its authority under sec- ‘making imperceptible’ does not include the years, fined under this title, or both; tion 994 of title 28, United States Code, and addition of audio or video content that is ‘‘(2) shall be imprisoned not more than 5 in accordance with this section, shall review performed or displayed over or in place of ex- years, fined under this title, or both, if the and, if appropriate, amend the Federal sen- isting content in a motion picture. offense was committed for purposes of com- tencing guidelines and policy statements ap- ‘‘Nothing in paragraph (11) shall be con- mercial advantage or private financial gain; plicable to persons convicted of intellectual strued to imply further rights under section ‘‘(3) shall be imprisoned not more than 6 property rights crimes, including any offense 106 of this title, or to have any effect on de- years, fined under this title, or both, if the under— fenses or limitations on rights granted under any other section of this title or under any offense is a second or subsequent offense; and (1) section 506, 1201, or 1202 of title 17, other paragraph of this section.’’. ‘‘(4) shall be imprisoned not more than 10 United States Code; or (b) EXEMPTION FROM TRADEMARK INFRINGE- years, fined under this title, or both, if the (2) section 2318, 2319, 2319A, 2319B, or 2320 of MENT.—Section 32 of the Trademark Act of offense is a second or subsequent offense title 18, United States Code. (b) AUTHORIZATION.—The United States 1946 (15 U.S.C. 1114) is amended by adding at under paragraph (2).’’; and the end the following: (6) in subsection (f), as redesignated— Sentencing Commission may amend the Fed- eral sentencing guidelines in accordance ‘‘(3)(A) Any person who engages in the con- (A) in paragraph (1), by striking ‘‘and’’ at duct described in paragraph (11) of section the end; with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 110 of title 17, United States Code, and who (B) in paragraph (2), by striking the period complies with the requirements set forth in note) as though the authority under that at the end and inserting a semicolon; and that paragraph is not liable on account of section had not expired. (C) by adding at the end the following: such conduct for a violation of any right (c) RESPONSIBILITIES OF UNITED STATES ‘‘(3) the term ‘financial gain’ has the mean- under this Act. This subparagraph does not SENTENCING COMMISSION.—In carrying out ing given the term in section 101 of title 17; preclude liability, nor shall it be construed and this section, the United States Sentencing to restrict the defenses or limitations on ‘‘(4) the term ‘work being prepared for Commission shall— rights granted under this Act, of a person for commercial distribution’ has the meaning (1) take all appropriate measures to ensure conduct not described in paragraph (11) of given the term in section 506(a) of title 17.’’. that the Federal sentencing guidelines and section 110 of title 17, United States Code, policy statements described in subsection (a) SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT even if that person also engages in conduct OF A WORK BEING PREPARED FOR are sufficiently stringent to deter, and ade- described in paragraph (11) of section 110 of COMMERCIAL DISTRIBUTION. quately reflect the nature of, intellectual such title. (a) PREREGISTRATION.—Section 408 of title property rights crimes; ‘‘(B) A manufacturer, licensee, or licensor 17, United States Code, is amended by adding (2) determine whether to provide a sen- of technology that enables the making of at the end the following: tencing enhancement for those convicted of limited portions of audio or video content of ‘‘(f) PREREGISTRATION OF WORKS BEING the offenses described in subsection (a), if a motion picture imperceptible as described PREPARED FOR COMMERCIAL DISTRIBUTION.— the conduct involves the display, perform- in subparagraph (A) is not liable on account ‘‘(1) RULEMAKING.—Not later than 180 days ance, publication, reproduction, or distribu- of such manufacture or license for a viola- after the date of enactment of this sub- tion of a copyrighted work before it has been tion of any right under this Act, if such man- section, the Register of Copyrights shall authorized by the copyright owner, whether ufacturer, licensee, or licensor ensures that

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the technology provides a clear and con- (b) NATIONAL FILM PRESERVATION BOARD.— this section may not be used by the corpora- spicuous notice at the beginning of each per- Section 104 of the National Film Preserva- tion for management and general or fund- formance that the performance of the mo- tion Act of 1996 (2 U.S.C. 179n) is amended— raising expenses as reported to the Internal tion picture is altered from the performance (1) in subsection (a)(1) by striking ‘‘20’’ and Revenue Service as part of an annual infor- intended by the director or copyright holder inserting ‘‘22’’; mation return required under the Internal of the motion picture. The limitations on li- (2) in subsection (a) (2) by striking ‘‘three’’ Revenue Code of 1986.’’. ability in subparagraph (A) and this subpara- and inserting ‘‘5’’; TITLE IV—PRESERVATION OF ORPHAN graph shall not apply to a manufacturer, li- (3) in subsection (d) by striking ‘‘11’’ and WORKS censee, or licensor of technology that fails to inserting ‘‘12’’; and SEC. 401. SHORT TITLE. comply with this paragraph. (4) by striking subsection (e) and inserting ‘‘(C) The requirement under subparagraph This title may be cited as the ‘‘Preserva- the following: tion of Orphan Works Act’’. (B) to provide notice shall apply only with ‘‘(e) REIMBURSEMENT OF EXPENSES.—Mem- respect to technology manufactured after bers of the Board shall serve without pay, SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND AR- the end of the 180-day period beginning on but may receive travel expenses, including the date of the enactment of the Family CHIVES. per diem in lieu of subsistence, in accordance Section 108(i) of title 17, United States Movie Act of 2005. with sections 5702 and 5703 of title 5, United ‘‘(D) Any failure by a manufacturer, li- Code, is amended by striking ‘‘(b) and (c)’’ States Code.’’. censee, or licensor of technology to qualify and inserting ‘‘(b), (c), and (h)’’. (c) NATIONAL FILM REGISTRY.—Section 106 for the exemption under subparagraphs (A) of the National Film Preservation Act of 1996 f and (B) shall not be construed to create an (2 U.S.C. 179p) is amended by adding at the inference that any such party that engages APPOINTMENT in conduct described in paragraph (11) of sec- end the following: ‘‘(e) NATIONAL AUDIO-VISUAL CONSERVATION The PRESIDING OFFICER. The tion 110 of title 17, United States Code, is lia- Chair, in accordance with Public Law ble for trademark infringement by reason of CENTER.—The Librarian shall utilize the Na- such conduct.’’. tional Audio-Visual Conservation Center of 93–618, as amended by Public Law 100– (c) DEFINITION.—In this section, the term the Library of Congress at Culpeper, Vir- 418, on behalf of the President pro tem- ‘‘Trademark Act of 1946’’ means the Act enti- ginia, to ensure that preserved films in- pore and upon the recommendation of tled ‘‘An Act to provide for the registration cluded in the National Film Registry are the Chairman of the Committee on Fi- and protection of trademarks used in com- stored in a proper manner, and disseminated nance, appoints the following Members to researchers, scholars, and the public as merce, to carry out the provisions of certain of the Finance Committee as congres- international conventions, and for other pur- may be appropriate in accordance with— poses’’, approved July 5, 1946 (15 U.S.C. 1051 ‘‘(1) title 17, United States Code; and sional advisers on trade policy and ne- et seq.). ‘‘(2) the terms of any agreements between gotiations: the Senator from Iowa, Mr. TITLE III—NATIONAL FILM the Librarian and persons who hold copy- GRASSLEY; the Senator from Utah, Mr. PRESERVATION rights to such audiovisual works.’’. HATCH; the Senator from Mississippi, (d) USE OF SEAL.—Section 107 (a) of the Na- Subtitle A—Reauthorization of the National Mr. LOTT; the Senator from Montana, tional Film Preservation Act of 1996 (2 U.S.C. Film Preservation Board Mr. BAUCUS; and the Senator from 179q(a)) is amended— SEC. 301. SHORT TITLE. (1) in paragraph (1), by inserting ‘‘in any West Virginia, Mr. ROCKEFELLER. This subtitle may be cited as the ‘‘Na- format’’ after ‘‘or any copy’’; and f tional Film Preservation Act of 2005’’. (2) in paragraph (2), by striking ‘‘or film SEC. 302. REAUTHORIZATION AND AMENDMENT. DISCHARGE AND REFERRAL OF S. copy’’ and inserting ‘‘in any format’’. 45 (a) DUTIES OF THE LIBRARIAN OF CON- (e) EFFECTIVE DATE.—Section 113 of the GRESS.—Section 103 of the National Film National Film Preservation Act of 1996 (2 Mr. BROWNBACK. Mr. President, I Preservation Act of 1996 (2 U.S.C. 179m) is U.S.C. 179w) is amended by striking ‘‘7’’ and ask unanimous consent that the Com- amended— inserting ‘‘13’’. (1) in subsection (b)— mittee on Health, Education, Labor, Subtitle B—Reauthorization of the National (A) by striking ‘‘film copy’’ each place that and Pensions be discharged from fur- Film Preservation Foundation term appears and inserting ‘‘film or other ther consideration of S. 45, and the bill approved copy’’; SEC. 311. SHORT TITLE. be referred to the Committee on the (B) by striking ‘‘film copies’’ each place This subtitle may be cited as the ‘‘Na- Judiciary. that term appears and inserting ‘‘film or tional Film Preservation Foundation Reau- The PRESIDING OFFICER. Without other approved copies’’; and thorization Act of 2005’’. objection, it is so ordered. (C) in the third sentence, by striking SEC. 312. REAUTHORIZATION AND AMENDMENT. f ‘‘copyrighted’’ and inserting ‘‘copyrighted, (a) BOARD OF DIRECTORS.—Section 151703 of mass distributed, broadcast, or published’’; title 36, United States Code, is amended— APPOINTMENT OF SENATOR BURR and (1) in subsection (b)(2)(A), by striking TO READ WASHINGTON’S FARE- (2) by adding at the end the following: ‘‘nine’’ and inserting ‘‘12’’; and WELL ADDRESS ‘‘(c) COORDINATION OF PROGRAM WITH (2) in subsection (b)(4), by striking the sec- OTHER COLLECTION, PRESERVATION, AND AC- ond sentence and inserting ‘‘There shall be The PRESIDING OFFICER. The CESSIBILITY ACTIVITIES.—In carrying out the no limit to the number of terms to which Chair, on behalf of the Vice President, comprehensive national film preservation any individual may be appointed.’’. pursuant to the order of the Senate of program for motion pictures established (b) POWERS.—Section 151705 of title 36, January 24, 1901, appoints the Senator under the National Film Preservation Act of United States Code, is amended in subsection from North Carolina, Mr. BURR, to read 1992, the Librarian, in consultation with the (b) by striking ‘‘District of Columbia’’ and Washington’s Farewell Address on Fri- Board established pursuant to section 104, inserting ‘‘the jurisdiction in which the prin- shall— cipal office of the corporation is located’’. day, February 18, 2005. ‘‘(1) carry out activities to make films in- (c) PRINCIPAL OFFICE.—Section 151706 of f cluded in the National Film registry more title 36, United States Code, is amended by COMMENDING THE RESULTS OF broadly accessible for research and edu- inserting ‘‘, or another place as determined cational purposes, and to generate public by the board of directors’’ after ‘‘District of THE PALESTINIAN PRESI- awareness and support of the Registry and Columbia’’. DENTIAL ELECTIONS the comprehensive national film preserva- (d) AUTHORIZATION OF APPROPRIATIONS.— Mr. BROWNBACK. Mr. President, I tion program; Section 151711 of title 36, United States Code, ask unanimous consent that the Sen- ‘‘(2) review the comprehensive national is amended by striking subsections (a) and ate proceed to the consideration of S. film preservation plan, and amend it to the (b) and inserting the following: extent necessary to ensure that it addresses ‘‘(a) AUTHORIZATION OF APPROPRIATIONS.— Res. 27, which was submitted earlier technological advances in the preservation There are authorized to be appropriated to today. and storage of, and access to film collections the Library of Congress amounts necessary The PRESIDING OFFICER. The in multiple formats; and to carry out this chapter, not to exceed clerk will report the resolution by ‘‘(3) wherever possible, undertake expanded $530,000 for each of the fiscal years 2005 title. initiatives to ensure the preservation of the through 2009. These amounts are to be made The assistant legislative clerk read moving image heritage of the United States, available to the corporation to match any as follows: including film, videotape, television, and private contributions (whether in currency, A resolution (S. Res. 27) commending the born digital moving image formats, by sup- services, or property) made to the corpora- results of the January 9, 2005, Palestinian porting the work of the National Audio-Vis- tion by private persons and State and local presidential elections. ual Conservation Center of the Library of governments. Congress, and other appropriate nonprofit ‘‘(b) LIMITATION RELATED TO ADMINISTRA- There being no objection, the Senate archival and preservation organizations.’’. TIVE EXPENSES.—Amounts authorized under proceeded to consider the resolution.

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Mr. President, as we cele- widely described by outside monitors as free United Nations, remains the only realistic brate the extraordinary elections in and fair; and widely recognized plan for making Iraq, let us also recognize the historic Whereas the Palestinian people elected progress toward peace; former Prime Minister Mahmoud Abbas, also Whereas the policy of the United States is progress being made by the Palestinian known as Abu Mazen, to the office of Presi- to work toward a just and peaceful resolu- people toward democracy. dent of the Palestinian Authority; tion of the Palestinian-Israeli conflict based On January 9, for the first time in 9 Whereas an estimated 65 percent of eligible on two democratic states, Israel and Pal- years, Palestinians living in the West Palestinians living in the West Bank, the estine, living side by side in peace and secu- Bank, the Gaza Strip, and Jerusalem Gaza Strip, and Jerusalem participated in rity; voted in free and fair elections. They voting at over 1000 polling stations, and for Whereas all parties to the Roadmap have elected former Prime Minister Dr. the first time in nearly 30 years, the Pales- an obligation to urgently provide support for Mahmoud Abbas, also known as Abu tinian people elected new leadership; the Palestinian Authority in its efforts to Whereas on January 9, 2005, President of confront and fight terror as well as to assist Mazen, to be their President. the United States George W. Bush stated in the creation of true democratic institu- For the first time in 30 years, they that it was a ‘‘historic day for the Pales- tions that will enforce the rule of law; and cast their ballots for new leadership. It tinian people and for the people of the Mid- Whereas people of all peaceful nations be- was a great moment for the Pales- dle East’’ and that ‘‘Palestinians throughout lieve peace between the Palestinian Author- tinian people. It was, as President Bush the West Bank and Gaza took a key step to- ity and the state of Israel will have far remarked, ‘‘a key step toward building ward building a democratic future by choos- reaching positive effects on the entire region a democratic future.’’ ing a new president in elections that observ- and throughout the world; Now, therefore, be The election was also a powerful ex- ers described as largely free and fair’’; it Whereas Israel provided important co- Resolved, That the Senate— ample to all who strive for freedom. It operation with the Palestinian Authority to (1) recognizes that, on January 9, 2005, Mr. proved that free and fair elections are enable the holding of this election, including Mahmoud Abbas, also known as Abu Mazen, not only possible in the Middle East, minimizing delays at checkpoints and rede- was elected by the Palestinian people to the but the hope and right of all people. ploying Israeli security forces away from office of President of the Palestinian Author- During his inaugural speech, President Palestinian population centers; ity in what were widely described as free and Abbas declared that: Whereas the Palestinian election was an fair elections; important step towards democracy for the (2) recognizes this milestone in the devel- The people have voted for the rule of law, Palestinian people and an example to all opment of Palestinian democracy and con- order, pluralism, the peaceful transfer of au- those in the region who are striving to gratulates President Abbas on his election to thority, and equality for all. achieve democracy in their own nation; the presidency of the Palestinian Authority; I commend President Abbas for these Whereas during his inaugural speech, (3) commends the efforts of the Israeli Gov- important and inspiring words. President Abbas stated that ‘‘The winner in ernment to facilitate the election; This election represents a genuine these elections is the great Palestinian peo- (4) expresses its respect for the freely ex- opportunity for peace. A democratic ple who have created this democratic epic pressed will of the Palestinian people, and its intention to work with President Abbas to Palestinian Authority that rejects vio- and who will safeguard it’’, that ‘‘The people have voted for the rule of law, order, plu- help the Palestinian people realize the op- lence and embraces the rule of law is ralism, the peaceful transfer of authority, portunity for a more peaceful, prosperous fu- one of the most important building and equality for all’’, and further ‘‘Let us ture; blocks for a viable, free, and stable start implementing the Roadmap’’; (5) urges President Abbas and the new Pal- Palestinian state. Whereas these comments build upon Mr. estinian leadership to abide by its commit- Israel also deserves praise for its sup- Abbas’ 1993 statements on the White House ments to reform the security services, estab- port of the Palestinian election. Israel lawn, where he said that a Palestinian state lish the rule of law, and press on with the de- provided important cooperation with and an Israeli state could live in ‘‘peaceful velopment of democratic institutions, in- coexistence and cooperation’’; cluding an independent judiciary and an em- the Palestinian Authority to minimize Whereas the election of Mahmoud Abbas powered and democratically elected legisla- delays at checkpoints. Israeli security was hailed around the world as a positive ture; forces were also deployed away from step opening new opportunities to move to- (6) urges President Abbas to move quickly Palestinian population centers. ward peace between the Palestinian Author- to honor his pledges to halt violence and in- The U.S. Government stands ready to ity and Israel; citement against Israel, dismantle terrorist work with the new Palestinian leader- Whereas the Palestinian election provided organizations, and fulfill the Palestinian ship to build the bridge to that hopeful President Abbas with a mandate from the Authority’s obligations according to the terms of the Roadmap; future. With wise and principled lead- majority of Palestinians to reject violence and pursue peace with Israel; (7) supports efforts to increase United ership, Palestinians and Israelis can Whereas the extent of cooperation between States assistance to the Palestinian people live side by side in peace. the Israelis and Palestinians during the pe- and to help President Abbas rebuild and re- The road ahead will be difficult. Yes- riod leading up to and including election day form the Palestinian Authority’s institu- terday, Hamas fighters shelled a Jew- was unprecedented in the past four years and tions, as President Abbas takes actions con- ish settlement in a purported retalia- reflects the potential for future cooperation; sistent with the Roadmap, so that they may tory strike. I remain hopeful, however, Whereas the election must be followed better serve the Palestinian people; that Palestinian and Israeli leadership quickly by concrete steps on the part of the (8) urges all members of the international will continue to work together to bring new Palestinian President to meet his com- community, particularly all parties to the mitment to reform the Palestinian security Roadmap, to take advantage of this historic the peace. There is a roadmap. There is services, establish the rule of law, and do all opportunity by providing timely assistance a will. With the support of the inter- in his power to combat terrorism; to the new Palestinian Government as it national community, including the Whereas a democratic Palestinian Author- moves forward to implement the Roadmap, Arab world, both sides will find the ity will serve as one of the most important to help it build the necessary political, eco- way. building blocks for a viable, free, and stable nomic, and security infrastructure essential Mr. BROWNBACK. Mr. President, I Palestinian state; to establishing a viable, democratic state ask unanimous consent that the reso- Whereas President Abbas’ success likely and improving the lives of the Palestinian lution be agreed to, the preamble be will depend upon his ability to tangibly and people; quickly improve the quality of life for Pal- (9) calls upon Arab states in particular to agreed to, and the motion to reconsider estinians, and end corruption and violence; provide political and financial support to the be laid upon the table. Whereas the United States Government Palestinian Authority, to support a complete The PRESIDING OFFICER. Without stands ready to work with the new Pales- end to terrorism against Israel, to end in- objection, it is so ordered. tinian President to facilitate a renewed dia- citement against it, and to reach out to the The resolution (S. Res. 27) was agreed logue between the new Palestinian leader- State of Israel in friendship and full recogni- to. ship and the Government of Israel with the tion; The preamble was agreed to. goal of achieving through the Performance (10) reaffirms the commitment of the The resolution, with its preamble, Based Roadmap to a Permanent Two-State United States to the security of Israel as a reads as follows: Solution to the Israeli-Palestinian Conflict democratic, Jewish state, and supports the (the ‘‘Roadmap’’), President George W. commitment of Israel to fulfill its obliga- S. RES. 27 Bush’s vision of two states, Israel and Pal- tions under the Roadmap; and Whereas on January 9, 2005, for the first estine, living side by side in peace; (11) reaffirms the commitment of the time in 9 years, large numbers of Palestin- Whereas the Roadmap, endorsed by the United States to the Roadmap including re- ians living in the West Bank, the Gaza Strip, United States, Israel, the Palestinian Au- alization of the vision of two democratic and Jerusalem voted in elections that were thority, the European Union, Russia, and the states, Israel and Palestine, living side by

VerDate Aug 31 2005 03:58 Jan 08, 2007 Jkt 059060 PO 00000 Frm 00150 Fmt 0624 Sfmt 0634 E:\RECORDCX\T37X$J0E\S01FE5.REC S01FE5 mmaher on PROD1PC70 with CONG-REC-ONLINE February 1, 2005 CONGRESSIONAL RECORD — SENATE S831 side in peace and security, and looks forward ator BYRD be recognized for up to 1 I also remind my colleagues the to working closely with the Executive hour. President’s State of the Union Address Branch to achieve this vision. The PRESIDING OFFICER. Without will be tomorrow evening. Senators are f objection, it is so ordered. asked to be in the Senate Chamber by ORDERS FOR WEDNESDAY, f 8:30 tomorrow night in order to proceed FEBRUARY 2, 2005 as a body to the House Chamber at 8:40 PROGRAM for the 9 o’clock address. Mr. BROWNBACK. Mr. President, I ask unanimous consent that when the Mr. BROWNBACK. Mr. President, to- Senate completes its business today, it morrow the Senate will resume consid- f adjourn until 9:15 a.m. on Wednesday, eration of the nomination of Alberto February 2. I further ask that fol- Gonzales to be Attorney General. A ADJOURNMENT UNTIL 9:15 A.M. lowing the prayer and pledge, the number of colleagues spoke on this TOMORROW morning hour be deemed expired, the nomination today, and we expect a full Journal of proceedings be approved to day of debate tomorrow as well. Under Mr. BROWNBACK. If there is no fur- date, the time for the two leaders be the agreement, we will alternate de- ther business to come before the Sen- reserved, and at 9:30 a.m. the Senate bate in 1-hour blocks throughout the ate, I ask unanimous consent that the proceed to executive session and re- day. Again, I encourage those Members Senate stand in adjournment under the sume consideration of the nomination who wish to speak on the Gonzales previous order. of Alberto Gonzales to be Attorney nomination to contact the chairman There being no objection, the Senate, General, as provided under the previous and ranking member of the Judiciary at 6:52 p.m., adjourned until Wednes- order; provided that at 2:30 p.m. Sen- Committee as soon as possible. day, February 2, 2005, at 9:15 a.m.

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